Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Victor Altheus De Ponceau v. J. Bruner

March 23, 2012

VICTOR ALTHEUS DE PONCEAU, PLAINTIFF,
v.
J. BRUNER, CORRECTIONS OFFICER;
J. SMITH, CORRECTIONS LIEUTENANT;
C. GOODMAN, CORRECTIONS LIEUTENANT;
D. MURRAY, WATCH COMMANDER;
D. WILLIAMS, GRIEVANCE SERGEANT; REYNOLDS, CORRECTIONS SERGEANT;
RUSSELL, CORRECTIONS OFFICER;
J. TAYLOR, CORRECTIONS OFFICER;
POMAINVILLE, CORRECTIONS OFFICER;
LEDUCA, CORRECTIONS SERGEANT, AND
JOHN AND JANE DOES, GREAT MEADOW CORRECTIONAL FACILITY, DEFENDANTS.



The opinion of the court was delivered by: Hon. Glenn T. Suddaby, United States District Judge

DECISION and ORDER

Currently before the Court, in this pro se prisoner civil rights action filed by Victor Altheus De Ponceau ("Plaintiff") against the twelve above-captioned New York State correctional employees ("Defendants"), are the following: (1) Defendants' motion to dismiss Plaintiff's Third Amended Complaint for failure to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6); (2) United States Magistrate Judge David E. Peebles' Report-Recommendation recommending that Defendants' motion be granted in part and denied in part, such that all of Plaintiff's claims, except for his claims of excessive force and failure to protect, are dismissed; (3) Plaintiff's Objection to the Report-Recommendation; and (4) Plaintiff's Supplemental Objection to the Report-Recommendation. (Dkt. Nos. 54, 72, 73, 75.) For the reasons set forth below, the Report-Recommendation is accepted and adopted in its entirety; Defendant's motion is granted in part and denied in part; and all of Plaintiff's claims are dismissed with prejudice, except for his claims of excessive force and failure to protect against Defendants LeDuca, D. Williams, and D. Murray, which remain pending in this action.

I. RELEVANT BACKGROUND

A. Plaintiff's Complaint

Plaintiff filed his original Complaint in this action on May 6, 2009. (Dkt. No. 1.) He filed his Third Amended Complaint on September 2, 2010. (Dkt. No. 24.) Generally, construed with the utmost of liberality, Plaintiff's Third Amended Complaint asserts the following seven claims against the twelve above-captioned Defendants: (1) Defendants J. Bruner, Russell and J. Taylor subjected Plaintiff to cruel and unusual punishment by making verbal threats to him on several occasions, in violation of the Eighth Amendment; (2) Defendants J. Bruner and Pomainville denied Plaintiff of his right to procedural due process by issuing false misbehavior reports against him, in violation of the Fourteenth Amendment; (3) Defendants LeDuca, D. Williams, and D. Murray used excessive force against him and failed to protect him, in violation of the Eighth Amendment; (4) Defendant J. Smith conspired to cover up the assault, in violation of 42 U.S.C. § 1983 (and his rights under the First, Eighth and/or Fourteenth Amendments); (5) Defendants Goodman and Pomainville retaliated against Plaintiff, by issuing false misbehavior reports against him because he complained about the assault by Defendant LeDuca, in violation of the First Amendment; (6) Defendants Reynolds and John and Jane Does retaliated against Plaintiff, and denied him of his right to the free flow of mail, by withholding a mail delivery because Plaintiff complained about the assault by Defendant LeDuca, in violation of the First Amendment; and (7) Defendant C. Goodman denied him of rights to procedural due process, by conducting a biased disciplinary hearing, in violation of the Fourteenth Amendment. (Id.)

For a more detailed recitation of Plaintiff's claims and supporting factual allegations, the Court refers the reader to the Third Amended Complaint in its entirety, as well as Magistrate Judge Peebles' Report-Recommendation, which accurately summarize those allegations. (Dkt. No. 24; Dkt. No. 72, at 4-5, 8, 13-32 [summarizing claims].)

B. Defendants' Motion to Dismiss

On March 17, 2011, Defendants filed a motion to dismiss. (Dkt. No. 54.) Generally, in support of their motion, Defendants assert the following eight arguments: (1) Plaintiff fails to allege facts plausibly suggesting an excessive force claim against Defendants Murray, Williams and LeDuca; (2) Plaintiff's procedural due process claims against Defendants Bruer and Pomainville, arising from the filing of false misbehavior reports, are not actionable; (3) Plaintiff has failed to allege facts plausibly suggesting a procedural due process claim against Defendant Goodman, arising from his conducting of Plaintiff's disciplinary hearing; (4) Plaintiff's verbal-abuse claims against Defendants Bruner, LeDuca, Russell, Taylor and Williams are not actionable; (5) Plaintiff's mail tampering claim against Defendant Reynolds is not actionable; (6) Plaintiff fails to allege any facts to support a conspiracy claim against Defendant Smith; (7) under the circumstances, the Eleventh Amendment bars Plaintiff's claims to the extent they are asserted against Defendants in their official capacities; and (8) based on the factual allegations of Plaintiff's Third Amended Complaint, Defendants are protected from liability as a matter of law by the doctrine of qualified immunity. (Dkt. No. 1, Attach. 1.)

C. Magistrate Judge Peebles' Report-Recommendation

On February 21, 2012, Magistrate Judge Peebles issued a Report-Recommendation recommending that Defendants' motion be granted in part and denied in part. (Dkt. No. 72.) More specifically, Magistrate Judge Peebles recommended that, while Plaintiff's excessive force and failure to protect claims should survive Defendants' motion, Plaintiff's remaining claims should be dismissed pursuant to Fed. R. Civ. P. 12(b)(6). (Id.)

D. Plaintiff's Objection and Supplemental Objection to the Report-Recommendation

On February 24, 2012, Plaintiff filed an Objection to the Report-Recommendation. (Dkt. No. 73.) Generally, in his Objection, Plaintiff asserts the following three arguments, in pertinent part: (1) in August 2011, Defendant Martin Rocque issued a "bogus" misbehavior report against Plaintiff for fighting, which was dismissed at the Tier III hearing; (2) in January 2012, Defendant Rocque confiscated his typewriter and television during a cell search and issued Plaintiff a ticket for "contraband unauthorized item"; and (3) in February 2012, Defendant Colleen Russell issued a "bogus" misbehavior ticket charging Plaintiff with sexually harassing a prison volunteer, which was dismissed at the hearing. (Id.)

On February 28, 2012, Plaintiff filed a Supplemental Objection to the Report-Recommendation. (Dkt. No. 75.) Generally, in his Supplemental Objection, Plaintiff asserts the following three arguments, in pertinent part: (1) Magistrate Judge Peebles committed "fraud" and ethics violations by not performing the duties of his judicial office impartially and diligently; (2) Magistrate Judge Peebles erred by misrepresenting the nature of, and/or law governing, Plaintiff's claims regarding verbal abuse, false misbehavior reports, excessive force, conspiracy, retaliation, the biased disciplinary hearing, the interference with Plaintiff's free-flow of mail; and (3) Magistrate ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.