The opinion of the court was delivered by: Richard J. Holwell, District Judge:
MEMORANDUM OPINION AND ORDER
Pro se plaintiff Steven Spavone brings this action alleging that defendants violated the Civil Rights Act, 42 U.S.C. § 1983 ("§ 1983") by denying his application for a limited credit time allowance ("LCTA") while plaintiff was in prison and seeks monetary damages against defendants in their official and individual capacities. Specifically, plaintiff seeks monetary damages for the alleged deprivation of his liberty interest in violation of his constitutional right to due process under the Fourteenth Amendment, the LCTA denial's exacerbating effect on his pre-existing mental health condition, future medical costs, and loss of consortium. Defendants' motion to dismiss the complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure is unopposed. For the reasons set forth below, defendants' motion is GRANTED in its entirety and plaintiff's claims are dismissed without prejudice. Plaintiff is given leave to amend his complaint.
Under N.Y. Corr. Law § 803-b, a LCTA allows eligible inmates to qualify for conditional release or parole eligibility six months earlier than they would have been otherwise. See N.Y. Corr. Law §§ 803-b(1)(b)(ii)(A) and 803-b(1)(b)(ii)(B). N.Y. Corr. Law § 803-b(2) sets out the eligibility criteria for a LCTA, one of which is the inmate's successful completion of one or more "significant programmatic accomplishments", including but not limited to the inmate's successful participation "as an inmate program associate for no less than two years". See N.Y. Corr. Law § 803-b(1)(c)(iii). In May 2010, plaintiff's application for a limited credit time allowance ("LCTA") pursuant to N.Y. Correction Law § 803-b was allegedly denied at the facility level by defendants King and Chalk while he was incarcerated at the Woodbourne Correctional Facility. (Compl. 2 and Ex. A.) Plaintiff claims that he appealed the denial to defendant Fisher, the Commissioner of the Department of Correctional Services (DOCS) at the time, who designated defendant Pearlman to respond. Defendant Pearlman allegedly upheld the denial on July 29, 2010. (Compl. 2.) Defendants Chalk and Fisher are also named defendants in a separate litigation filed by plaintiff and pending before this Court,*fn1 and defendant Chalk is alleged to have "on numerous occasions, with the conspiratorial assistance of Defendant King, retaliated against" the plaintiff. Plaintiff allege that the denials of his LCTA application and appeal were made in retaliation for his previous complaint. (Compl. 3.)
Plaintiff claims that at the time of the underlying action, he had held a position of inmate program associate for over two years and was therefore entitled to a LCTA under N.Y. Corr. Law § 803-b. He further alleges that his entitlement to a LCTA is a constitutional right under the Fourteenth Amendment rather than a discretionary privilege, and that the denial of his LCTA application deprived him of his liberty interest in violation of the Fourteenth Amendment.
Additionally, the LCTA denial supposedly exacerbated plaintiff's pre-existing condition of post traumatic stress disorder by depriving him of "effective, essential and required therapies" as well as medical treatment that he could not receive while in incarceration. (Compl. 4.) Lastly, plaintiff claims a loss of consortium because he "will now and in the future require medications, which hinder and interfere, through side effects, with the personal and intimate relationship between husband and wife". (Compl. 6.)
When ruling on a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) or failure to state a claim under Rule 12(b)(6), the court must take all facts alleged in the complaint as true and draw all reasonable inferences in favor of plaintiff. See Natural Res. Def. Council v. Johnson, 461 F.3d 164, 171 (2d Cir. 2006); Bolt Elec. Inc. v. City of New York, 53 F.3d 465, 470 (2d Cir. 1995). "A pro se complaint is to be read liberally. Certainly the court should not dismiss without granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated." Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (internal quotation marks and citations omitted). "Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a 'short and plain statement of the claim showing that the pleader is entitled to relief.' . . . [T]he pleading standard Rule 8 announces does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 544-45 (2007)). "A court considering a motion to dismiss may begin by identifying allegations that, because they are mere conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the complaint's framework, they must be supported by factual allegations." Iqbal, 129 S. Ct. at 1940. The Supreme Court has set out the following pleading standards for overcoming a motion to dismiss in Iqbal:
To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a "probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully. 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 570) (internal citations omitted).
For purposes of a motion to dismiss, the Court deems "a complaint to include any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference" and "documents that the plaintiffs either possessed or knew about and upon which they relied in bringing the suit". Rothman v. Gregor, 220 F.3d 81, 88 (2d Cir. 2000) (internal citations omitted). Allegations in a complaint that are contradicted by documents incorporated therein need not be accepted as true by the court. Barnum v. Millbrook Care Ltd., 850 F.Supp. 1227, 1232-33 (S.D.N.Y. 1994).
II.The Eleventh Amendment Bars Claims Against Defendants in Their Official Capacities
Plaintiff claims that defendants "in their official and individual capacities" under the color of state law violated his right to due process by depriving him of his liberty interest in the LCTA. (Compl. 2.) In a § 1983 action, a suit for damages against a state official in his official capacity is deemed to be a suit against the state, thereby entitling the official to invoke the sovereign immunity reserved for states under the Eleventh Amendment. Ying Jing Gan v. City of New York, 996 F.2d 522, 529 (2d Cir. 1993). In the absence of consent or congressional abrogation of the state's sovereign immunity, the state as well as its agencies and departments are immune under the Eleventh Amendment from suits brought in federal court by its citizens. Coll. Savings Bank v. Florida Prepaid Post-secondary Ed. Expense Bd., 527 U.S. 666, 670 (1999). A state's immunity under the Eleventh Amendment may be waived by the state's consent to suit against it in federal court or by congressional abrogation, but such state consent and congressional intent to abrogate must be unequivocally expressed. Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 99 (1984). Congress has not expressly stated any intent to override state sovereign immunity for § 1983 claims, see Quern v. Jordan, 440 U.S. 332, 343 (1979), and neither has the state of New York consented to suits in federal court, see Gross v. New York, 428 Fed.Appx. 52, 53 (2d Cir. 2011) (noting that the state of New York has waived its immunity by consenting only to being sued in the New York Court of Claims but not in federal court). Accordingly, plaintiff's § 1983 claim against defendants in their official capacities is dismissed.
III.Denial of Plaintiff's LCTA Application Does Not Violate His Right to Due Process under ...