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Selam Selah v. Brian Fischer

July 3, 2012


The opinion of the court was delivered by: David E. Peebles U.S. Magistrate Judge


Pro se plaintiff Selam Selah, a New York State prison inmate, has commenced this action against the New York State Department of Corrections and Community Supervision ("DOCCS"), the agency's Commissioner, and eight other DOCCS employees, pursuant to 42 U.S.C. § 1983, alleging deprivation of his civil rights. In his complaint plaintiff asserts that the defendants have violated his constitutional rights to equal protection and free religious exercise, as well as those guaranteed under the Religious Land Use and Institutionalized Person Acts ("RLUIPA"), 42 U.S.C. § 2000cc et seq., by failing to accommodate his religious beliefs and permit him to practice his chosen religion, while members of other religious sects, including Rastifarians, are treated more favorably.

Currently pending before the court in connection with this action is a motion brought by the defendants seeking dismissal of plaintiff's complaint for failure to state a cause of action upon which relief may be granted. In their motion defendants argue that plaintiff's complaint fails to comply with governing pleading requirements and that certain of the claims set forth are not legally cognizable. In addition, defendants assert that they are entitled to qualified immunity from suit. For the reasons set forth below, I recommend that plaintiff's claims against the DOCCS be dismissed, but that defendants' motion otherwise be DENIED.


Plaintiff is a prison inmate entrusted to the custody of the DOCCS.

See generally Amended Complaint (Dkt. No. 84). While at the time this action was commenced plaintiff was confined within the Gouverneur Correctional Facility ("Gouverneur"), located in Gouverneur, New York, see Complaint (Dkt. No. 1) ¶ 2, he was later transferred into the Orleans Correctional Facility, located in Albion, New York, Amended Complaint (Dkt. No. 84) ¶ 34. He is currently incarcerated at the Clinton Correctional Facility, located in Dannemora, New York. See Dkt. entry of 1/19/12. Plaintiff's inter-facility transfers, however, do not appear to impact upon his claims, which address agency-wide DOCCS policies and practices. *fn2


Plaintiff subscribes to the religious tenets of the Ethiopian Orthodox Christian Faith, which is also known as Ethiopian-Egyptian Coptic Orthodox Christianity. Amended Complaint (Dkt. No. 84) ¶ 21; see also Complaint (Dkt. No. 1) p. 20. Plaintiff's religion has many similarities to Rastafarianism with the exception that its teachings acknowledge Jesus Christ as the Messiah, whereas Rastafarians do not. Amended Complaint (Dkt. No. 84) ¶ 21.

Plaintiff's complaint in this action centers upon defendants' alleged failure to recognize and accommodate his religion. Plaintiff maintains that this failure is manifested through defendants' 1) refusal to permit plaintiff and others of his religious persuasion to possess and display head gear, a prayer shawl, a prayer girdle, a prayer rug, and other appropriate religious attire and artifacts consistent with their beliefs; 2) refusal to allow members of plaintiff's sect to observe and commemorate seven specified major holy days and nine minor holy days; 3) denial of the opportunity to participate in congregate religious services and education; 4) failure to provide meals consistent with old testament dietary laws; 5) failure to permit the plaintiff and his fellow Ethiopian Orthodox Christians to wear beards and dreadlocks or braids; and 6) refusal to exempt him from work on Saturdays and Sundays. Plaintiff maintains that despite his complaints to various prison officials within the DOCCS hierarchy, his requests for accommodation have not been honored, while Rastafarians are provided all or most of the accommodations now sought.


Plaintiff commenced this action on December 7, 2009. Dkt. No. 1.

Since inception of the action the court has been besieged with numerous and oftentimes repetitive serial filings by the plaintiff requesting various forms of relief, resulting in a procedural history which, to date, includes some 124 docket entries spanning over the two years during which the case has been pending, despite the fact that issue has not yet been joined by the filing of an answer. In addition to the standard motion for leave to proceed in forma pauperis , Dkt. No. 2, that history includes the filing of siX motions for a temporary restraining order and/or preliminary injunction, three requests for the appointment of pro bono counsel, and an application for certification of the matter as a class action. See Dkt. No. 5, 6, 69, 74, 86, 89, 109, 115, and 122.

On September 14, 2011, with leave of court, plaintiff filed an amended complaint -- the currently operative pleading in the case. *fn3 Dkt. No. 84. Plaintiff's complaint, as amended, names as defendants DOCCS Commissioner Brian Fischer; DOCCS Rastafarian Religious Advisor Abuna Foxe; the agency's Greek Orthodox Christian Chaplain, Fr. E. Mantzouris; Cheryl Morris, the DOCCS Director of Ministerial Services; Karen Bellamy, the Director of the DOCCS Inmate Grievance Program; Justin Taylor, the Superintendent at Gouverneur; T. Killian, the Senior Chaplain at Gouverneur; and Mark Leonard, the DOCCS Director of Ministerial and Family Services, all of whom are sued in both their individual and official capacities, as well as the DOCCS itself. Id. Plaintiff's complaint alleges violation of his right to freely exercise his chosen religion, as guaranteed under the First Amendment to the United States Constitution, the denial of equal protection, in violation of the Fourteenth Amendment, and infringement of his statutory rights under the RLUIPA, and seeks various forms of monetary, declaratory, and injunctive relief. *fn4 Id.

In response to plaintiff's complaint defendants have moved seeking its dismissal pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Dkt. No. 111. In support of that motion, defendants argue that 1) plaintiff's amended complaint fails to meet the governing pleading requirements of Rules 8 and 10 of the Federal Rules of Civil Procedure; 2) plaintiff has failed to demonstrate the existence of a plausible claim under any of the constitutional or statutory provisions cited; 3) plaintiff's claims against the DOCCS are subject to dismissal on the basis of sovereign immunity and the Eleventh Amendment; and 4) in any event the individual defendants are entitled to qualified immunity from suit. Id. Plaintiff has since submitted papers in opposition to defendants' motion. Dkt. No. 113.

Defendants' motion, which is now been fully briefed and ripe for determination, has been referred to me for the issuance of a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Northern District of New York Local Rule 72.3(c). See Fed. R. Civ. P. 72(b).


A. Dismissal Motion Standard

A motion to dismiss a complaint, brought pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, calls upon a court to gauge the facial sufficiency of that pleading, utilizing as a backdrop a pleading standard which, though unexacting in its requirements, "demands more than an unadorned, the-defendant-unlawfully-harmed me accusation" in order to withstand scrutiny. Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atl. Corp. v. Twombly , 550 U.S. 554, 555, 127 S. Ct. 1955, 1964-65 (2007)). Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that a complaint contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2); see also id. While modest in its requirements, that rule commands that a complaint contain more than mere legal conclusions; "[w]hile legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Iqbal , 556 U.S. 679, 129 S. Ct. at 1950.

In deciding a Rule 12(b)(6) dismissal motion, though the court must accept the material facts alleged in the complaint as true and draw all inferences in favor of the non-moving party, Hudson v. Palmer , 468 U.S. 517, 541 n.1, 104 S. Ct. 3194, 3208 n.1 (1984) (citing cases); Miller v. Wolpoff & Abramson, LLP , 321 F.3d 292, 300 (2d Cir. 2003), cert. denied , 540 U.S. 823, 124 S. Ct. 153 (2003); Burke v. Gregory , 356 F. Supp. 2d 179, 182 (N.D.N.Y. 2005) (Kahn, J.), it is "'not bound to accept as true a legal conclusion couched as a factual allegation'", Iqbal , 129 S. Ct. at 1950 (quoting Twombly , 550 U.S. at 555, 127 S. Ct. at 1965). To withstand a motion to dismiss, a complaint must plead sufficient facts which, when accepted as true, state a claim that is plausible on its face. Ruotolo v. City of New York , 514 F.3d 184, 188 (2d Cir. 2008) (citing Twombly , 550 U.S. at 570, 127 S. Ct. at 1974). As the Second Circuit has observed, "[w]hile Twombly does not require heightened fact pleading of specifics, it does require enough facts to 'nudge [plaintiffs'] claims across the line from conceivable to plausible.'" In re Elevator Antitrust Litig. , 502 F.3d 47, 50 (2d Cir. 2007) (quoting Twombly , 550 U.S. at 570, 127 S. Ct. at 1974) (alteration in original).

When assessing the sufficiency of a complaint against this backdrop, particular deference should be afforded to a pro se litigant, whose complaint merits a generous construction by the court when determining whether it states a cognizable cause of action. Erickson v. Pardus , 551 U.S. 89, 94, 127 S. Ct. 2197, 2200 (2007) ("[A] pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.") (quoting Estelle v. Gamble , 429 U.S. 97, 106, 97 S. Ct. 285, 292 (1976) (internal quotations omitted)); Sealed Plaintiff v. Sealed Defendant , 537 F.3d 185, 191 (2d Cir. 2008) (citations omitted); Kaminski v. Comm'r of Oneida Cnty. Dep't of Social Servs. , 804 F. Supp. 2d 100, 104 (N.D.N.Y. 2011).

B. The DOCCS as a Named Defendant

In their motion defendants argue that plaintiff's claims against the DOCCS are in reality brought against the State and are therefore subject to dismissal on the basis of sovereign immunity. *fn5

The Eleventh Amendment protects a state against suits brought in federal court by citizens of that state, regardless of the nature of the relief sought. *fn6 Alabama v. Pugh , 438 U.S. 781, 782, 98 S. Ct. 3057, 3057-58 (1978). This absolute immunity which states enjoy under the Eleventh Amendment extends to state agencies such as the DOCCS. Salvodon v. New York , No. 11 Civ. 2190(PAC)(KNF), 2012 WL 1694613, at *3 (S.D.N.Y. May 14, 2012); Bloom v. Fischer , No. 11--CV--6237L, 2012 WL 45470, at *3 (W.D.N.Y. Jan. 3, 2012) (citing Whitfield v. O'Connell , 09 Civ.1925, 2010 WL 1010060, at *4 (S.D.N.Y. Mar. 18, 2010) ("[B]ecause Section 1983 does not abrogate a state's sovereign immunity and the State of New York has not waived its immunity, claims against DOCS for both monetary and injunctive relief are barred under the Eleventh Amendment") (citations omitted), aff'd, 402 Fed. App'x 563 (2d Cir. 2010), cert. denied , ---- U.S. ----, 131 S. Ct. 2132 (2011)) (other citation omitted); see also Richards v. State of New York Appellate Div., Second Dep't , 597 F. Supp. 689, 691 (E.D.N.Y. 1984) (citing Pugh and Cory v. White , 457 U.S. 85, 89-91, 102 S. Ct. 2325, 2328-29 (1982)). Accordingly, plaintiff's claims against the DOCCS are subject to dismissal. *fn7

C. Compliance with Rules 8 and 10

Defendants next argue that plaintiff's amended complaint fails to comply with the requirements of Rules 8 and 10 of the Federal Rules of Civil Procedure. *fn8 As was previously noted, Rule 8 of the Federal Rules of Civil Procedure, which sets forth the general pleading requirements applicable to most complaints filed in the federal courts, requires that such a pleading include "a short and plain statement of the claim showing that the pleader is entitled to relief[.]" Fed. R. Civ. P. 8(a); see In re WorldCom, Inc. , 263 F. Supp. 2d 745, 756 (S.D.N.Y. 2003). The purpose of Rule 8 "'is to give fair notice of the claim being asserted so as to permit the adverse party the opportunity to file a responsive answer [and] prepare an adequate defense.'" Hudson v. Artuz , 1998 WL 832708, *1 (quoting Powell v. Marine Midland Bank , 162 F.R.D. 15, 16 (N.D.N.Y.1995) (quoting Brown v. Califano , 75 F.R.D. 497, 498 (D.D.C.1977))) (other citation omitted). A complaint asserting only bare legal conclusions is insufficient. Iqbal , 556 U. S. at 678, 129 S. Ct. at 1950 (quoting Twombly , 550 U.S. at 555, 127 S. Ct. at 1965). Instead, the complaint must allege "enough facts to state a claim to relief that is plausible on its face." Twombly , 550 U.S. at 570, 127 S. Ct. at 1974. A claim will have "facial plausibility when the plaintiff pleads [sufficient] factual content [to] allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal , 556 U.S. at 678, 129 S. Ct. at 1949.

In the end, Rule 8 contemplates only notice pleading; under the rule's mandates, a complaint must sufficiently apprise a defendant as to the nature of plaintiff's claims with sufficient clarity to allow that defendant to answer and prepare for trial. Salahuddin v. Cuomo , 861 F.2d 40, 42 (2d Cir. 1988). To the extent that greater detail is required in order to effectively defend against such claims, "it is the role of the litigation tools of discovery and summary judgment to weed out unmeritorious suits." In re Natural Gas Commodity Litig. , 337 F. Supp. 2d 498, 506 (S.D.N.Y. 2004) (citation omitted).

To be sure, a complaint lodged by a pro se plaintiff can properly be dismissed under appropriate circumstances for failing to comply with the applicable pleading requirement that it be "short and plain." Philips , 408 F.3d at 130; Pickering-George v. Cuomo , No. 1:10-CV-771, 2010 WL 5094629, at * 4 n.8 (N.D.N.Y. Dec. 8, 2010) (Suddaby, J.) (citing cases). "Dismissal, however, is 'usually reserved for those cases in which the complaint is so confused, ambiguous, vague, or otherwise unintelligible that its true substance, if any, is well disguised.'" Hudson , 1998 WL 832708, *2 (citation omitted).

Turning to Federal Rule of Civil Procedure 10, I note that this provision imposes a requirement whose intent is largely pragmatic, requiring, among other things, that a pleading consist of separately numbered paragraphs "each of which shall be limited as far as practicable to a statement of a single set of circumstances[.]" Fed. R. Civ. P. 10(b).

Rule 10(b) is designed to assist litigants and the court by allowing the interposition of a responsive pleading and the corresponding framing of issues with sufficient clarity to allow an orderly and meaningful presentation of a plaintiff's claims and any corresponding defenses, either on motion or at trial. See Flores v. Graphtex , 189 F.R.D. 54, 55 (N.D.N.Y. 1999).

Analysis of plaintiff's amended complaint, in the face of defendants' motion, is informed not only by the salutary purposes to be served by these pleading requirements, but additionally by two equally important principles. First, it is a well-established requirement that a complaint prepared by a pro se litigant is entitled to liberal construction in his or her favor. Salahuddin v. Cuomo , 861 F.2d at 42-43. Additionally, courts generally favor adjudication of cases on their merits, rather than on the basis of a technicalities or procedural niceties. Id. at 42; see also Zdziebloski v. Town of East Greenbush, New York , 101 F. Supp. 2d 70, 72 (N.D.N.Y. 2000)(citing Salahuddin ); Upper Hudson Planned Parenthood, Inc. v. Doe , 836 F.Supp. 939, 943 n.9 (N.D.N.Y. 1993).

A counterweight to these considerations, which militate in favor of lenity toward a plaintiff, is the challenge presented by plaintiff's lengthy and verbose complaint, particularly to the defendants who must frame a proper responsive pleading, as well as to the court in discerning the contours of the plaintiff's claims. "[U]nnecessary prolixity in a pleading places an unjustified burden on the court and the party who must respond to it because they are forced to select the relevant material from a mass of verbiage." Salahuddin v. Cuomo, 861 F.2d at 42; see also Ceparano v. Suffolk Cnty., No. 10-CV-2030 (SJF) (ATK), 2010 WL 5437212, at *3 (E.D.N.Y. Dec. 15, 2010).

In this instance, while plaintiff's original complaint suffered from his failure to include numbered paragraphs, as demanded by Rule 10, this deficiency has been cured, and plaintiff's amended complaint, as defendants acknowledge, does contain allegations that are separately numbered. Though many of the paragraphs contained in plaintiff's amended complaint are prolix and contain more than the "single set of circumstances" contemplated under Rule 10(b), in the court's view the amended complaint is sufficiently parsed out to permit formulation of proper answer.

The court has also reviewed the allegations set forth in plaintiff's complaint to determine whether they adequately apprise the defendants of the nature of his claims. Though plaintiff's amended complaint is indeed unnecessarily lengthy, laced with unnecessary verbiage, and accompanied by random and seemingly unorganized attachments, it provides fair notice to defendants of the claims being asserted. Distilled to its core, the complaint discloses the existence of cognizable claims that defendants have interfered with plaintiff's free exercise of his religious beliefs in violation of the First Amendment and RLUIPA, and additionally that he has been denied equal protection based upon the differences between the treatment afforded to members of his religion and others within the DOCCS system. Where, as here, a complaint, though burdened with irrelevant detail, does articulate, recognizable, alleged unconstitutional behavior, dismissal is not warranted . See Prezzi v. Schelter , 469 F.2d 691, 692 (2d Cir. 1972) (per curiam), cert. denied , 411 U.S. 935, 93 S. Ct. 1911 (1973) with these guiding principles as a backdrop. I have concluded that plaintiff's complaint, though by no means a model of clarity, gives fair notice of the claims being asserted in the action and therefore satisfies the minimal pleading requirements of Rule 8 of the Federal Rules of Civil Procedure. Shomo v. State of New York, 374 Fed. App'x 180, 2010 WL 1628771 (2d Cir. 2010) (cited in accordance with Fed. R. App. P. 32.1) (citing Phillips , 408 F.3d at 130).

The bases for plaintiff's claims are sufficiently delineated in his pleading, in which he asserts violations of the First Amendment's Free Exercise Clause, the Equal Protection Clause of the Fourteenth Amendment, and the RLUIPA. The facts forming the underpinnings of those claims are also set forth, including the religious accommodations plaintiff has requested but has been denied. In sum, when read with the requisite deference owed to the plaintiff as a pro se inmate, albeit a somewhat seasoned litigator, I conclude that plaintiff's amended complaint meets the requirements of Rules 8 and 10, and therefore recommend denial of the portion of defendants' motion asserting his failure to comply with those rules.

D. Legal Sufficiency of Plaintiff's Religious Exercise Claims In their motion, citing Iqbal and Twombly , defendants argue that plaintiff's amended complaint, with its conclusory allegations, fails to state a claim upon which relief may be granted. That argument is only halfheartedly stated, and does not include any analysis of plaintiff's constitutional and statutory claims. The court has nonetheless reviewed the allegations of plaintiff's complaint with an eye toward determining whether his claims pass muster under the governing Rule 12(b)(6) standard, discussed above.

As a starting point, I note that it is well-established that prison inmates do not shed all rights upon entry into the prison system. While inmates confined within prison facilities are by no means entitled to the full panoply of rights guaranteed under the United States Constitution, including its First Amendment, the Free Exercise Clause of that amendment does afford them at least some measure of constitutional protection, including of their right to participate in congregate religious services. See Pell v. Procunier, 417 U.S. 817, 822, 94 S. Ct. 2800, 2804 (1974) ("In the First Amendment context . . . a prison inmate retains those First Amendment rights that are not inconsistent with his [or her] status as a prisoner or with the legitimate penological objectives of the corrections system."); see also Salahuddin v. Coughlin, 993 F.2d 306, 308 (2d Cir. 1993) ("It is well established that prisoners have a constitutional right to participate in congregate religious services.") (citing cases). That right extends under certain circumstances beyond mere attendance at congregate religious services, and also prohibits adoption of polices or practices that burden an inmate's sincerely held religious beliefs unless they are reasonably related to legitimate penological interests. O'Lone v. Estate of Shabazz , 482 U.S. 342, 349, 107 S. Ct. 2400 (1987). Courts must analyze free exercise claims asserted by prison inmates by evaluating "1) whether the practice asserted is religious in the person's scheme of beliefs, and whether the belief is sincerely held; 2) whether the challenged practice of the prison officials infringes upon the religious belief; *fn9 and 3) whether the challenged practice of the prison officials furthers some legitimate penological objective." Farid v. Smith , 850 F.2d 917, 926 (2d Cir.1988) (citations omitted).

Similar protections are accorded to inmates under the RLUIPA, a statutory enactment forming the basis for some of plaintiff's claims. That statute provides, in pertinent part, that [n]o government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution . . . . even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of a burden on that person -- 1) is in furtherance of a compelling governmental interest; and 2) is the least restrictive means of furthering that compelling governmental interest. 42 U.S.C. § 2000cc-1(a). The familiar principles informing the analysis of plaintiff's free exercise claim under the First Amendment are similar to those applicable to his RLUIPA cause of action, although the two claims are analyzed under slightly different frameworks. See Salahuddin v. Goord , 467 F.3d at 264.

Plaintiff's complaint also asserts an equal protection claim, arguing that he and other members of his designated religion are treated differently by the defendants than Rastafarian inmates despite the similarity of their religious beliefs. The Equal Protection Clause directs state actors to treat similarly situated persons alike. See City of Cleburne, Texas v. Cleburne Living Ctr. , 473 U.S. 432, 439, 105 S.Ct. 3249, 3254 (1985). To prove a violation of the Equal Protection Clause, a plaintiff must demonstrate that he or she was treated differently than others similarly situated as a result of intentional or purposeful discrimination directed at an identifiable or suspect class. See Giano v. Senkowski , 54 F.3d 1050, 1057 (2d Cir.1995) (citing, inter alia , McCleskey v. Kemp , 481 U.S. 279, 292, 107 S. Ct. 1756, 1767 (1987)). The plaintiff must also show that the disparity in treatment "cannot survive the appropriate level of scrutiny which, in the prison setting, means that he must demonstrate that his treatment was not reasonably related to [any] legitimate penological interests." Phillips , 408 F.3d at 129 (quoting Shaw v. Murphy , 532 U.S. 223, 225, 121 S. Ct. 1475 (2001) (internal quotation marks omitted)).

Plaintiff's claims of interference with his free religious exercise rights under the First Amendment and the RLUIPA, and an alleged Equal Protection violation based upon the difference between defendants' treatment of members of his religion and Rastafarians, are plausibly stated in his amended complaint. Plaintiff has alleged the existence of specific policies and practices within the prison facilities in which he has been housed prohibiting the growing of beards and wearing of dreadlocks or braids, the refusal to permit possession and wearing religious head coverings, the failure to permit the possession of prayer rugs, religious shawls and religious girdles, the failure to provide a kosher diet mandated by the tenets of his religion, the failure to permit the observance of specified religious holidays, and the failure to excuse the plaintiff from working on Saturdays and Sundays. *fn10 While in response defendants undoubtedly will either deny those allegations or assert that those policies or practices are justified by legitimate penological concerns, and in the end may well prevail in defending against those claims, the allegations contained within plaintiff's complaint assert sufficient facts to permit the court to conclude that plausible claims have been stated under the First Amendment, the RLUIPA, and the Equal Protection Clause of the Fourteenth Amendment. I therefore recommend the defendants' motion seeking dismissal plaintiff's claims as insufficiently stated on the merits be denied.

E. Qualified Immunity

In their motion defendants also assert their entitlement to qualified immunity from suit.

Qualified immunity shields government officials performing discretionary functions from liability for damages "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald , 457 U.S. 800, 818, 102 S. Ct. 2727, 2738 (1982) (citations omitted). "In assessing an officer's eligibility for the shield, 'the appropriate question is the objective inquiry whether a reasonable officer could have believed that [his or her actions were] lawful, in light of clearly established law and the information the officer[ ] possessed." Kelsey v. Cnty. of Schoharie , 567 F.3d 54, 61 (2d Cir. 2009) (quoting Wilson v. Layne , 526 U.S. 603, 615, 119 S.Ct. 1692 (1999)). The law of qualified immunity seeks to strike a balance between the need to hold government officials accountable for irresponsible conduct and the need to protect them from "harassment, distraction, and liability when they perform their duties reasonably." Pearson v. Callahan , 555 U.S. 223, 129 S. Ct. 808, 815 (2009) .
In Saucier v. Katz , 533 U.S. 194, 121 S. Ct. 2151 (2001), the Supreme Court "mandated a two-step sequence for resolving government official's qualified immunity claims." Pearson , 555 U.S. at 232, 129 S. Ct. at 815-16. The first step requires the court to consider whether, taken in the light most favorable to the party asserting immunity, the facts alleged show that the conduct at issue violated a constitutional right, *fn11 Kelsey , 567 F.3d at 61, with "the second step being whether the right is clearly established", Okin v. Village of Cornwall-On-Hudson Police Dep't , 577 F.3d 415, 430 n.9 (citing Saucier ). *fn12 Expressly recognizing that the purpose of the qualified immunity doctrine is to ensure that insubstantial claims are resolved prior to discovery, the Supreme Court retreated from the prior Saucier two-step mandate in its later decision, in Pearson concluding that because "[t]he judges of the district courts and courts of appeals are in the best position to determine the order of decisionmaking [that] will best facilitate the fair and efficient disposition of each case", those decision makers "should be permitted to exercise their sound discretion in deciding which of the . . . prongs of the qualified immunity analysis should be addressed first in light of the circumstances of the particular case at hand." *fn13 Pearson , 555 U.S. at 236, 242, 129 S. Ct. at 818, 821. In other words, as recently emphasized by the Second Circuit, the courts "are no longer required to make a 'threshold inquiry' as to the violation of a constitutional right in a qualified immunity context, but we are free to do so." Kelsey , 567 F.3d at 61(citing Pearson , 129 S. Ct. at 821) (emphasis in original).

For courts engaging in a qualified immunity analysis, "the question after Pearson is 'which of the two prongs . . . should be addressed in light of the circumstances in the particular case at hand.'" Okin , 577 F.3d 430 n.9 (quoting Pearson ). "The [ Saucier two-step] inquiry is said to be appropriate in those cases where 'discussion of why the relevant facts do not violate clearly established law may make it apparent that in fact the relevant facts do not make out a constitutional violation at all.'" Kelsey , 567 F.3d at 61 (quoting Pearson , 129 S. Ct. at 818).

Qualified immunity is a defense not often particularly well-suited for a disposition in a motion to dismiss under Rule 12(b)(6). Undeniably, the legal rights asserted in plaintiff's complaint are and were well-known and established at the relevant times. Salahuddin v. Goord , 467 F.2d at 277; see also Amaker v. Goord , No. 06--CV--490A(Sr), 2010 WL 2595286, at * 10 (W.D..Y. Mar. 25, 2010), report and recommendation adopted , 2010 WL 2572972 (W.D.N.Y. Jun. 23, 2010). Unfortunately, the question of whether prison officials in the positions of the defendants would reasonably have known that their actions toward the plaintiff, as alleged in his complaint, abridged those rights is inextricably intertwined with the merits of plaintiff's claims such that, at least at this early procedural juncture, it cannot be said that the defendants are entitled to qualified immunity. See Amaker , 2010 WL 2595286, at * 10; Dicks v. Binding Together, Inc. , No. 03 Civ. 7411, 2007 WL 1462217, at * 10 (S.D.N.Y. May 18 2007), aff'd in part , 382 Fed. App'x 28 (2d Cir. 2010) (summary order).


With the passage of more than two years since the filing of this action and many procedural stops along the way, plaintiff has now filed an amended complaint which, though unquestionably verbose, is separated into paragraphs, sets forth allegations placing the defendants on notice of the claims being asserted, and contains sufficient facts demonstrating that at least plausible claims under the First and the Fourteenth Amendments to the Constitution and the RLUIPA have been stated. With the exception of his claims against the DOCCS, an agency of the state entitled to sovereign immunity and the protections of the Eleventh Amendment, I recommend a finding that plaintiff's claims are plausibly stated and thus not subject to dismissal at this early procedural juncture. Additionally, I recommend a finding that defendants' claim of entitlement to qualified immunity cannot be determined at this juncture. Based upon the foregoing, it is hereby respectfully

RECOMMENDED that defendants' motion to dismiss plaintiff's complaint (Dkt. No. 111) be GRANTED, in part, and that his claims against the DOCCS be DISMISSED, but that the motion be DENIED in all other respects.

NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections must be filed with the clerk of the court within FOURTEEN days of service of this report. FAILURE TO SO OBJECT TO THIS REPORT WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993).

It is hereby ORDERED that the clerk of the court serve a copy of this report, recommendation, and order upon the parties in accordance with this court's local rules.

Syracuse, NY

Not Reported in F.Supp.2d, 2008 WL 4384460 (N.D.N.Y.)

(Cite as: 2008 WL 4384460 (N.D.N.Y.)) and no objections submitted thereto, it is

ORDERED, that:

United States District Court, 1. The Report-Recommendation is hereby adopted in its entirety.

N.D. New York.

Juan TEJADA, Plaintiff, 2. The defendants' motion to dismiss for failure to v. state a claim (Dkt. No. 12) is granted, and plaintiff's Mr. MANCE, Superintendent, Marcy C.F.; Souza, complaint is dismissed in its entirety.

Correctional Officer, Marcy C.F.; and Zurawski, Correctional Officer, Marcy C.F., Defendants. 3. The Clerk of the Court shall serve a copy of this No. 9:07-CV-0830. Order upon all parties and the Magistrate Judge assigned to this case.

Only the Westlaw citation is currently available.

Sept. 22, 2008.

Juan Tejada, Beacon, NY, pro se. IT IS SO ORDERED.

Hon. Andrew M. Cuomo, Attorney General for the State REPORT-RECOMMENDATION of New York, Roger W . Kinsey, Esq., of Counsel, New York, NY, for Defendants. GEORGE H. LOWE, United States Magistrate Judge.

This pro se prisoner civil rights action, commenced

ORDER pursuant to 42 U.S.C. § 1983, has been referred to me by the Honorable Norman A. Mordue, Chief United States NORMAN A. MORDUE, Chief Judge. District Judge, for Report and Recommendation with *1 The above matter comes to me following a regard to any dispositive motions filed, pursuant to 28 Report-Recommendation by Magistrate Judge George H. U.S.C. § 636(b) and Local Rule 72.3(c). Generally, in his Lowe, duly filed on the 12th day of September 2008. Complaint, Juan Tejada ("Plaintiff") alleges that three Following ten days from the service thereof, the Clerk has employees of the New York State Department of sent me the file, including any and all objections filed by Correctional Services ("DOCS") violated his rights under the parties herein. the First, Eighth and Fourteenth Amendments when they Such Report-Recommendation, which was mailed to denied Plaintiff (and other inmates) an opportunity to plaintiff's last known residence, was returned to the Court exercise outdoors for one hour per day on approximately as undeliverable to plaintiff at such address. See Dkt. No. four days between the period of May 5, 2007, and July 15, 18. 2007, at Marcy Correctional Facility ("Marcy C.F."). (See generally Dkt. No. 1 [Plf.'s Compl.].) Currently pending Additionally, plaintiff was previously advised by the before the Court is Defendants' motion to dismiss for Court that plaintiff was required to promptly notify the failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6). Clerk's Office of any change in his address, and that (Dkt. No. 12.) For the reasons set forth below, I failure to keep such office apprised of his current address recommend that Defendants' motion be granted. would result in the dismissal of the instant action. See Dkt. I. BACKGROUND No. 6, at page 3.

After careful review of all of the papers herein, including the Magistrate Judge's Report-Recommendation, Construed with the special leniency normally afforded nothing; FN5 to the pleadings of pro se civil rights litigants, Plaintiff's

Complaint and the attachments thereto (which are FN5. (Dkt. No. 1, ¶ 6 [Plf.'s Compl.]; Dkt. No. 1, incorporated by reference into the Complaint) allege as at 26 [Ex. B to Plf.'s Compl., attaching letter follows: from Plaintiff dated May 23, 2007]; Dkt. No. 1, at 14-19 [Ex. B to Plf.'s Compl., attaching three 1. On May 5, 2007, DOCS Correctional Officer different versions of letter from Plaintiff dated Souza ("Defendant Souza") and Correctional Officer June 24, 2007].)

Zurawski ("Defendant Zurawski") wrongfully deprived Plaintiff, and other inmates in the Marcy C.F. Special 6. At unidentified times before May 26, 2007, Housing Unit ("S.H.U."), of the one hour of outdoor Correctional Officers at Marcy C.F. were, in some way, exercise that they were permitted by DOCS Directive "being racist towards the Spanish [inmates in the Marcy 4933; FN1 C.F. S.H.U.]"; FN6

FN1. (Dkt. No. 1, ¶ 6 [Plf.'s Compl.]; Dkt. No. 1, FN6. (Dkt. No. 1, at 23 [Ex. B to Plf.'s Compl., at 7 [Ex. A to Plf.'s Compl., attaching letter from attaching letter from Plaintiff dated May 26, Plaintiff dated May 5, 2007].) 2007].)

*2 2. In addition, at unidentified times before May 10, 7. On July 5, 2007, Defendant Souza threatened to 2007, Defendants Souza and Zurawski wrongfully file a false misbehavior report against Plaintiff and his deprived Plaintiff, and other inmates in the Marcy C.F. cellmate (who spoke only Spanish); FN7

S.H.U., of unspecified "supplies" and their radios; FN2

FN7. (Dkt. No. 1, at 32-35 [Ex. B to Plf.'s

FN2. (Dkt. No. 1, ¶ 6 [Plf.'s Compl.]; Dkt. No. 1, Compl., attaching letter from Plaintiff dated July at 20-21 [Ex. B to Plf.'s Compl., attaching two 5, 2007].) versions of letter from Plaintiff dated May 10, 2007].) 8. On July 9, 2007, Defendant Zurawaski deprived

Plaintiff of the one hour of outdoor exercise that he was 3. On May 23, 2007, Defendants Souza and Zurawski permitted by DOCS Directive 4933, in retaliation against wrongfully deprived Plaintiff, and other inmates in the him for having filed a grievance against Defendant Marcy C.F. S.H.U., of the one hour of outdoor exercise Zurawaski; FN8 and

that they were permitted by DOCS Directive 4933; FN3

FN8. (Dkt. No. 1, ¶ 6 [Plf.'s Compl.]; Dkt. No. 1,

FN3. (Dkt. No. 1, ¶ 6 [Plf.'s Compl.]; Dkt. No. 1, at 30 [Ex. B to Plf.'s Compl., attaching letter at 26 [Ex. B to Plf.'s Compl., attaching letter from Plaintiff dated July 9, 2007].) from Plaintiff dated May 23, 2007].)

9. On July 15, 2007, Defendants Souza and Zurawski 4. That same day, two unidentified inmates were wrongfully deprived Plaintiff, and other inmates in the "bitten [sic] ... for standing up [to] this abuse [of the Marcy C.F. S.H.U., of the one hour of outdoor exercise inm

FN4 ates' right to one hour of outdoor exercise per day];" that they were permitted by DOCS Directive 4933.FN9

FN9. (Dkt. No. 1, ¶ 6 [Plf.'s Compl.]; Dkt. No. 1,

FN4. (Dkt. No. 1, ¶ 6 [Plf.'s Compl.].) at 31 [Ex. B to Plf.'s Compl., attaching letter from Plaintiff dated July 15, 2007].)

5. Also on that day, Plaintiff brought the deprivation of outdoor exercise to the attention of Superintendent As a result of these deprivations, Plaintiff requests Mance ("Defendant Mance"), who subsequently did both injunctive and monetary relief.FN10 *3 Under Fed.R.Civ.P. 12(b)(6), a defendant may FN10. (Dkt. No. 1, ¶¶ 7, 9 [Plf.'s Compl.].) move to dismiss a complaint for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). Based on these factual allegations, I liberally construe It has long been understood that a defendant may base Plaintiff's Complaint and its attachments as asserting the such a motion on either or both of two grounds: (1) a following four legal claims against Defendants: (1) a claim challenge to the "sufficiency of the pleading" under of inadequate prison conditions and/or harassment under Fed.R.Civ.P. 8(a)(2); FN12 or (2) a challenge to the legal the Eighth Amendment; (2) a procedural due process cognizability of the claim.FN13 claim under the Fourteenth Amendment; (3) an equal FN12. See 5C Wright & Miller, Federal Practice protection claim under the Fourteenth Amendment; and and Procedure § 1363 at 112 (3d ed. 2004) ("A (4) a retaliation claim (against Defendant Souza) under the motion to dismiss for failure to state a claim for First Amendment. FN11 relief under Rule 12(b)(6) goes to the sufficiency of the pleading under Rule 8(a)(2).") [citations FN11. Due to the special solicitude normally omitted]; Princeton Indus., Inc. v. Rem, 39 B.R. afforded to the pleadings of pro se civil rights 140, 143 (Bankr.S.D.N.Y.1984) ("The motion litigants, when a district court is determining under F.R.Civ.P. 12(b)(6) tests the formal legal what legal claims a pro se civil litigant has sufficiency of the complaint as to whether the raised, "the court's imagination should be limited plaintiff has conformed to F.R.Civ.P. 8(a)(2) only by [the plaintiff's] factual allegations, not by which calls for a 'short and plain statement' that the legal claims set out in his pleadings." Phillips the pleader is entitled to relief."); Bush v. v. Girdich, 408 F.3d 124, 130 (2d Cir.2005) Masiello, 55 F.R.D. 72, 74 (S.D.N.Y.1972) [citations omitted]. ("This motion under Fed.R.Civ.P. 12(b)(6) tests the formal legal sufficiency of the complaint, B. Summary of Grounds in Support of Defendants' determining whether the complaint has M otion to Dismiss conformed to Fed.R.Civ.P. 8(a)(2) which calls for a 'short and plain statement that the pleader Generally, Defendants' motion to dismiss is premised is entitled to relief.' "). on the following seven grounds: (1) Plaintiff's Complaint fails to allege facts plausibly suggesting a deprivation that FN13. See Swierkiewicz v. Sorema N.A., 534 was sufficiently serious to constitute a violation of the U.S. 506, 514, 122 S.Ct. 992, 152 L.Ed.2d 1 Eighth Amendment; (2) Plaintiff's Complaint fails to (2002) ("These allegations give respondent fair allege facts plausibly suggesting the personal involvement notice of what petitioner's claims are and the of Defendant Mance (a supervisor) in the constitutional grounds upon which they rest.... In addition, they violations alleged; (4) Plaintiff's Complaint fails to state a state claims upon which relief could be granted procedural due process claim under the Fourteenth under Title VII and the ADEA."); Wynder v. Amendment because a violation of DOCS Directive 4933 McMahon, 360 F.3d 73, 80 (2d Cir.2004) does not constitute a violation of the Fourteenth ("There is a critical distinction between the Amendment; (5) Plaintiff lacks standing to assert any notice requirements of Rule 8(a) and the claims on behalf of other inmates; (6) the Eleventh requirement, under Rule 12(b)(6), that a plaintiff Amendment bars Plaintiff's claims against Defendants in state a claim upon which relief can be granted."); their official capacities; and (7) based on Plaintiff's factual Phelps v. Kapnolas, 308 F.3d 180, 187 (2d allegations, Defendants are protected from liability as a Cir.2002) ("Of course, none of this is to say that matter of law by the doctrine of qualified immunity. (Dkt. a court should hesitate to dismiss a complaint No. 12, Part 2, 1-9 [Defs.' Memo. of Law].) when the plaintiff's allegation ... fails as a matter

II. LEGAL STANDARD GOVERNING M OTIONS of law.") [citation omitted]; Kittay v. Kornstein, TO DISM ISS FOR FAILURE TO STATE A CLAIM 230 F.3d 531, 541 (2d Cir.2000) (distinguishing Narcotics Intelligence and Coordination Unit, between a failure to meet Rule 12[b][6]'s 507 U.S. 163, 168, 113 S.Ct. 1160, 122 L.Ed.2d requirement of stating a cognizable claim and 517 (1993) [citation omitted].

Rule 8[a]'s requirement of disclosing sufficient information to put defendant on fair notice); In re FN15. Swierkiewicz, 534 U.S. at 514 (quoting Methyl Tertiary Butyl Ether Prods. Liab. Litig., Conley, 355 U.S. at 48); see also Simmons v. 379 F.Supp.2d 348, 370 (S.D.N.Y.2005) ( Abruzzo, 49 F.3d 83, 86 (2d Cir.1995) ("Fair "Although Rule 8 does not require plaintiffs to notice is that which will enable the adverse party plead a theory of causation, it does not protect a to answer and prepare for trial, allow the legally insufficient claim [under Rule 12(b)(6) application of res judicata, and identify the ].") [citation omitted]; Util. Metal Research & nature of the case so it may be assigned the Generac Power Sys., 02-CV-6205, 2004 U.S. proper form of trial.") [citation omitted]; Dist. LEXIS 23314, at *4-5 (E.D.N.Y. Nov. 18, Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d 2004) (distinguishing between the legal Cir.1988) ("[T]he principle function of pleadings sufficiency of the cause of action under Rule under the Federal Rules is to give the adverse 12[b][6] and the sufficiency of the complaint party fair notice of the claim asserted so as to under Rule 8[a] ); accord, Straker v. Metro enable him to answer and prepare for trial.") Trans. Auth., 331 F.Supp.2d 91, 101-102 [citations omitted]. (E.D.N.Y.2004); Tangorre v. Mako's, Inc., 01-CV-4430, 2002 U.S. Dist. LEXIS 1658, at FN16. Gonzales v. Wing, 167 F.R.D. 352, 355 *6-7 (S.D.N.Y. Jan. 30, 2002) (identifying two (N.D.N.Y.1996) (McAvoy, J.), aff'd, 113 F.3d sorts of arguments made on a Rule 12[b][6] 1229 (2d Cir.1997) (unpublished table opinion); motion-one aimed at the sufficiency of the accord, Hudson v. Artuz, 95-CV-4768, 1998 WL pleadings under Rule 8[a], and the other aimed at 832708, at *2 (S.D.N.Y. Nov.30, 1998), Flores the legal sufficiency of the claims). v. Bessereau, 98-CV-0293, 1998 WL 315087, at

*1 (N.D.N.Y. June 8, 1998) (Pooler, J.).

Rule 8(a)(2) requires that a pleading contain "a short Consistent with the Second Circuit's application and plain statement of the claim showing that the pleader of § 0.23 of the Rules of the U.S. Court of is entitled to relief." Fed.R.Civ.P. 8(a)(2) [emphasis Appeals for the Second Circuit, I cite this added]. By requiring this "showing," Fed.R.Civ.P. 8(a)(2) unpublished table opinion, not as precedential requires that the pleading contain a short and plain authority, but merely to show the case's statement that "give[s] the defendant fair notice of what subsequent history. See, e.g., Photopaint the plaintiff's claim is and the grounds upon which it Technol., LLC v. Smartlens Corp., 335 F.3d 152, rests." FN14 The main purpose of this rule is to "facilitate a 156 (2d Cir.2003) (citing, for similar purpose, proper decision on the merits." FN15 A complaint that fails unpublished table opinion of Gronager v. to comply with this rule "presents far too heavy a burden Gilmore Sec. & Co., 104 F.3d 355 [2d Cir.1996] in terms of defendants' duty to shape a comprehensive ). defense and provides no meaningful basis for the Court to assess the sufficiency of [plaintiff's] claims." FN16 The Supreme Court has long characterized this pleading requirement under Fed.R.Civ.P. 8(a)(2) as FN14. Dura Pharm., Inc. v. Broudo, 544 U.S. "simplified" and "liberal," and has repeatedly rejected 336, 125 S.Ct. 1627, 1634, 161 L.Ed.2d 577 judicially established pleading requirements that exceed (2005) (holding that the complaint failed to meet this liberal requirement.FN17 However, it is well established this test) [citation omitted; emphasis added]; see that even this liberal notice pleading standard "has its also Swierkiewicz, 534 U.S. at 512 [citation limits." FN18 As a result, several Supreme Court and omitted]; Leathernman v. Tarrant County Second Circuit decisions exist, holding that a pleading has failed to meet this liberal notice pleading standard.FN19 an actionable antitrust claim under 15 U.S.C. § 1,

"retire[d]" the famous statement by the Court in Conley v. FN17. See, e.g., Swierkiewicz, 534 U.S. at Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 513-514 (noting that "Rule 8(a)(2)'s simplified (1957), that "a complaint should not be dismissed for pleading standard applies to all civil actions, with failure to state a claim unless it appears beyond doubt that limited exceptions [including] averments of fraud the plaintiff can prove no set of facts in support of his or mistake."). claim which would entitle him to relief." 550 U.S. 544, ---- - ----, 127 S.Ct. 1955, 1968-69, 167 L.Ed.2d 929 FN18. 2 Moore's Federal Practice § 12.34[1][b] (2007).FN20 Rather than turning on the conceivability of an at 12-61 (3d ed.2003). actionable claim, the Court clarified, the Fed.R.Civ.P. 8 "fair notice" standard turns on the plausibility of an

FN19. See, e.g., Bell Atlantic Corp. v. Twombly, actionable claim. Id. at 1965-74. 550 U.S. 544, ---- - ----, 127 S.Ct. 1955, 1964-1974, 167 L.Ed.2d 929 (2007) (pleading FN20. The Court in Twombly further explained: did not meet Rule 8[a][2]'s liberal requirement); "The phrase is best forgotten as an incomplete, accord, Dura Pharm., 125 S.Ct. at 1634-1635, negative gloss on an accepted pleading standard: Christopher v. Harbury, 536 U.S. 403, 416-422, once a claim has been adequately stated, it may 122 S.Ct. 2179, 153 L.Ed.2d 413 (2002), be supported by showing any set of facts Freedom Holdings, Inc. v. Spitzer, 357 F.3d 205, consistent with the allegations in the complaint.... 234-235 (2d Cir.2004), Gmurzynska v. Hutton, Conley, then, described the breadth of 355 F.3d 206, 208-209 (2d Cir.2004). Several opportunity to prove what an adequate complaint unpublished decisions exist from the Second claims, not the minimum standard of adequate Circuit affirming the Rule 8(a)(2) dismissal of a pleading to govern a complaint's survival." complaint after Swierkiewicz. See, e.g., Salvador Twombly, 127 S.Ct. at 1969. v. Adirondack Park Agency of the State of N.Y.,

No. 01-7539, 2002 W L 741835, at *5 (2d Cir. More specifically, the Court reasoned that, by Apr.26, 2002) (affirming pre-Swierkiewicz requiring that a pleading "show [ ] that the pleader is decision from Northern District of New York entitled to relief," Fed.R.Civ.P. 8(a)(2) requires that the interpreting Rule 8[a][2] ). Although these pleading give the defendant "fair notice" of (1) the nature decisions are not themselves precedential of the claim and (2) the "grounds" on which the claim authority, see Rules of the U.S. Court of Appeals rests. Id. at 1965, n. 3 [citation omitted]. While this does for the Second Circuit, § 0.23, they appear to not mean that a pleading need "set out in detail the facts acknowledge the continued precedential effect, upon which [the claim is based]," it does mean that the after Swierkiewicz, of certain cases from within pleading must contain at least "some factual allegation[s]." the Second Circuit interpreting Rule 8(a)(2). See Id. [citations omitted]. More specifically, the "[f]actual Khan v. Ashcroft, 352 F.3d 521, 525 (2d allegations must be enough to raise a right to relief above Cir.2003) (relying on summary affirmances the speculative level [to a plausible level]," assuming (of because "they clearly acknowledge the continued course) that all the allegations in the complaint are true. precedential effect" of Domond v. INS, 244 F.3d Id. at 1965 [citations omitted]. What this means, on a 81 [2d Cir.2001], after that case was "implicitly practical level, is that there must be "plausible grounds to overruled by the Supreme Court" in INS v. St. infer [actionable conduct]," or, in other words, "enough Cyr, 533 U.S. 289 [2001] ). fact to raise a reasonable expectation that discovery will reveal evidence of [actionable conduct]." Id.

Most notably, in the recent decision of Bell Atlantic Corporation v. Twombly, the Supreme Court, in reversing *4 As have other Circuits, the Second Circuit has an appellate decision holding that a complaint had stated repeatedly recognized that the clarified plausibility standard that was articulated by the Supreme Court in give lenders fair notice of her discrimination Twombly governs all claims, not merely antitrust claims claim based on lenders' denial of her home equity brought under 15 U.S.C. § 1 (as were the claims in loan application) [emphasis added].

Twombly ).FN21 The Second Circuit has also recognized that this plausibility standard governs claims brought even It should be emphasized that Fed.R.Civ.P. 8's by pro se litigants (although the plausibility of those plausibly standard, explained in Twombly, was in no way claims is be assessed generously, in light of the special retracted or diminished by the Supreme Court's decision solicitude normally afforded pro se litigants).FN22 (two weeks later) in Erickson v. Pardus, in which the Court stated, "Specific facts are not necessary" to FN21. See, e.g., Ruotolo v. City of New York, successfully state a claim under Fed.R.Civ.P. 8(a)(2). 514 F.3d 184, 188 (2d Cir.2008) (in civil rights Erickson v. Pardus, 551 U.S. 89, ----, 127 S.Ct. 2197, action, stating that "To survive a motion to 2200, 167 L.Ed.2d 1081 (2007) [citation omitted]. That dismiss, a complaint must plead 'enough facts to statement was merely an abbreviation of the state a claim up relief that is plausible on its often-repeated point of law-first offered in Conley and face.' ") [citation omitted]; Goldstein v. Pataki, repeated in Twombly-that a pleading need not "set out in 07-CV-2537, 2008 U.S.App. LEXIS 2241, at detail the facts upon which [the claim is based]" in order *14 (2d Cir. Feb. 1, 2008) (in civil rights action, to successfully state a claim. Twombly, 127 S.Ct. 1965, n. stating that "Twombly requires ... that the 3 (citing Conley v. Gibson, 355 U.S. 41, 47 [1957] ). That complaint's '[f]actual allegations be enough to statement in no way meant that all pleadings may achieve raise a right to relief above the speculative level the requirement of giving a defendant "fair notice" of the ....' ") [internal citation omitted]; ATSI nature of the claim and the "grounds" on which the claim Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d rests without ever having to allege any facts 87, 98, n. 2 (2d Cir.2007) ( "We have declined to whatsoever.FN23 There must still be enough facts alleged to read Twombly's flexible 'plausibility standard' as raise a right to relief above the speculative level to a relating only to antitrust cases.") [citation plausible level, so that the defendant may know what the omitted]; Iqbal v. Hasty, 490 F.3d 143, 157-58 claims are and the grounds on which they rest (in order to (2d Cir.2007) (in prisoner civil rights action, shape a defense). stating, "[W]e believe the [Supreme] Court [in Bell Atlantic Corp. v. Twombly ] is ... requiring FN23. For example, in Erickson, a district court a flexible 'plausibility standard,' which obliges a had dismissed a pro se prisoner's civil rights pleader to amplify a claim with some factual complaint because, although the complaint was allegations in those contexts where such otherwise factually specific as to how the amplification is needed to render the claim prisoner's hepatis C medication had been plausible." ) [emphasis in original]. wrongfully terminated by prison officials for a period of approximately 18 months, the FN22. See, e.g., Jacobs v. Mostow, 281 F. App'x complaint (according to the district court) failed 85, 87 (2d Cir. March 27, 2008) (in pro se to allege facts plausibly suggesting that the action, stating, "To survive a motion to dismiss, termination caused the prisoner "substantial a complaint must plead 'enough facts to state a harm." 127 S.Ct. at 2199. The Supreme Court claim up relief that is plausible on its face.' ") vacated and remanded the case because (1) under [citation omitted] (summary order, cited in Fed.R.Civ.P. 8 and Twombly, all that is required accordance with Local Rule 32.1[c][1] ); Boykin is a "a short and plain statement of the claim" v. KeyCorp., 521 F.3d 202, 215-16 (2d Cir.2008) sufficient to "give the defendant fair notice" of (finding that borrower's pro se complaint the claim and "the grounds upon which it rests," sufficiently presented a "plausible claim of and (2) the plaintiff had alleged that the disparate treatment," under Fair Housing Act, to termination of his hepatitis C medication for 18 months was "endangering [his] life" and that he standard is applied with even greater force where the was "still in need of treatment for [the] disease." plaintiff alleges civil rights violations or where the Id. at 2200. While Erickson does not elaborate complaint is submitted pro se."FN25 In other words, as

much further on its rationale, a careful reading of stated above in Part I.A. of this Report-Recommendation, the decision (and the dissent by Justice Thomas) while all pleadings are to be construed liberally under reveals a point that is perhaps so obvious that it Fed.R.Civ.P. 8(e), pro se civil rights pleadings are to be did not need mentioning in the short decision: a construed with an extra degree of liberality.FN26

claim of deliberate indifference to a serious medical need under the Eighth Amendment FN24. Hernandez v. Coughlin, 18 F.3d 133, 136 involves two elements, i.e., the existence of a (2d Cir.1994) (affirming grant of motion to sufficiently serious medical need possessed by dismiss) [citation omitted]; Sheppard v. the plaintiff, and the existence of a deliberately Beerman, 18 F.3d 147, 150 (2d Cir.1994). indifferent mental state possessed by prison officials with regard to that sufficiently serious FN25. Hernandez, 18 F.3d at 136 [citation medical need. The Erickson decision had to do omitted]; Deravin v. Kerik, 335 F.3d 195, 200 with only the first element, not the second (2d Cir.2003) [citations omitted]; Vital v. element. Id. at 2199-2200. In particular, the Interfaith Med. Ctr., 168 F.3d 615, 619 (2d decision was merely recognizing that an Cir.1999) [citation omitted]. allegation by a plaintiff that, during the relevant time period, he suffered from hepatis C is, in and F N 2 6 . S e e, su p ra , no te 1 o f th is of itself, a factual allegation plausibly suggesting Report-Recommendation. that he possessed a sufficiently serious medical need; the plaintiff need not also allege that he For example, the mandate to read the papers of pro se suffered an independent and "substantial injury" litigants generously makes it appropriate to consider a as a result of the termination of his hepatis C plaintiff's papers in opposition to a defendant's motion to medication. Id. This point of law is hardly a dismiss as effectively amending the allegations of the novel one. For example, numerous decisions, plaintiff's complaint, to the extent that those factual from district courts within the Second Circuit assertions are consistent with the allegations of the alone, have found that suffering from hepatitis C plaintiff's complaint.FN27 Moreover, "courts must construe constitutes having a serious medical need for pro se pleadings broadly, and interpret them to raise the purposes of the Eighth Amendment. See, e.g., strongest arguments that they suggest." FN28 Furthermore, Rose v. Alvees, 01-CV-0648, 2004 WL 2026481, when addressing a pro se complaint, generally a district at *6 (W.D.N.Y. Sept.9, 2004); Verley v. Goord, court "should not dismiss without granting leave to amend 02-CV-1182, 2004 WL 526740, at *10 n. 11 at least once when a liberal reading of the complaint gives (S.D.N.Y. Jan.23, 2004); Johnson v. Wright, 234 any indication that a valid claim might be stated." FN29 Of F.Supp.2d 352, 360 (S.D.N.Y.2002); McKenna course, an opportunity to amend is not required where "the v. Wright, 01-CV-6571, 2002 WL 338375, at *6 problem with [plaintiff's] causes of action is substantive" (S.D.N.Y. March 4, 2002); Carbonell v. Goord, such that "[b]etter pleading will not cure it." FN30 99-CV-3208, 2000 WL 760751, at *9 (S.D.N.Y. June 13, 2000). FN27. "Generally, a court may not look outside the pleadings when reviewing a Rule 12(b)(6) Having said all of that, it should also be emphasized motion to dismiss. However, the mandate to read that, "[i]n reviewing a complaint for dismissal under the papers of pro se litigants generously makes it Fed.R.Civ.P. 12(b)(6), the court must accept the material appropriate to consider plaintiff's additional facts alleged in the complaint as true and construe all materials, such as his opposition memorandum." reasonable inferences in the plaintiff's favor." FN24 "This Gadson v. Goord, 96-CV-7544, 1997 WL 714878, at *1, n. 2 (S.D.N.Y. Nov.17, 1997) *5 However, while this special leniency may (citing, inter alia, Gil v. Mooney, 824 F.2d 192, somewhat loosen the procedural rules governing the form 195 [2d Cir.1987] [considering plaintiff's of pleadings (as the Second Circuit very recently response affidavit on motion to dismiss] ). Stated observed),FN31 it does not completely relieve a pro se another way, "in cases where a pro se plaintiff is plaintiff of the duty to satisfy the pleading standards set faced with a motion to dismiss, it is appropriate forth in Fed.R.Civ.P. 8, 10 and 12.FN32 Rather, as both the for the court to consider materials outside the Supreme Court and Second Circuit have repeatedly complaint to the extent they 'are consistent with recognized, the requirements set forth in Fed.R.Civ.P. 8, the allegations in the complaint.' " Donhauser v. 10 and 12 are procedural rules that even pro se civil rights Goord, 314 F.Supp.2d 119, 212 (N.D.N.Y.2004) plaintiffs must follow.FN33 Stated more plainly, when a (considering factual allegations contained in plaintiff is proceeding pro se, "all normal rules of pleading plaintiff's opposition papers) [citations omitted], are not absolutely suspended." FN34 vacated in part on other grounds, 317 F.Supp.2d 160 (N.D.N.Y.2004). This authority is premised, FN31. Sealed Plaintiff v. Sealed Defendant # 1, not only on case law, but on Rule 15 of the No. 06-1590, 2008 WL 3294864, at *5 (2d Cir. Federal Rules of Civil Procedure, which permits Aug.12, 2008) ("[The obligation to construe the a plaintiff, as a matter of right, to amend his pleadings of pro se litigants liberally] entails, at complaint once at any time before the service of the very least, a permissive application of the a responsive pleading-which a motion to dismiss rules governing the form of pleadings.") [internal is not. See Washington v. James, 782 F.2d 1134, quotation marks and citation omitted]; see also 1138-39 (2d Cir.1986) (considering subsequent Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir.1983) affidavit as amending pro se complaint, on ("[R]easonable allowances to protect pro se motion to dismiss) [citations omitted]. litigants from inadvertent forfeiture of important rights because of their lack of legal training ... FN28. Cruz v. Gomez, 202 F.3d 593, 597 (2d should not be impaired by harsh application of Cir.2000) (finding that plaintiff's conclusory technical rules.") [citation omitted]. allegations of a due process violation were insufficient) [internal quotation and citation FN32. See Prezzi v. Schelter, 469 F.2d 691, 692 omitted]. (2d Cir.1972) (extra liberal pleading standard set forth in Haines v. Kerner, 404 U.S. 519 [1972], FN29. Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d did not save pro se complaint from dismissal for Cir.2000) [internal quotation and citation failing to comply with Fed.R.Civ.P. 8] ); accord, omitted]; see also Fed.R.Civ.P. 15(a) (leave to Shoemaker v. State of Cal., 101 F.3d 108 (2d amend "shall be freely given when justice so Cir.1996) (citing Prezzi v. Schelter, 469 F.2d requires"). 691) [unpublished disposition cited only to acknowledge the continued precedential effect of FN30. Cuoco, 222 F.3d at 112 (finding that Prezzi v. Schelter, 469 F.2d 691, within the repleading would be futile) [citation omitted]; Second Circuit]; accord, Praseuth v. Werbe, 99 see also Cortec Indus., Inc. v. Sum Holding L.P., F.3d 402 (2d Cir.1995). 949 F.2d 42, 48 (2d Cir.1991) ("Of course, where a plaintiff is unable to allege any fact FN33. See McNeil v. U.S., 508 U.S. 106, 113, sufficient to support its claim, a complaint should 113 S.Ct. 1980, 124 L.Ed.2d 21 (1993) ("While be dismissed with prejudice.") (affirming, in part, we have insisted that the pleadings prepared by dismissal of claim with prejudice) [citation prisoners who do not have access to counsel be omitted]. liberally construed ... we have never suggested that procedural rules in ordinary civil litigation should be interpreted so as to excuse mistakes by 37404, at *4 (N.D.N.Y. Jan.4, 2007) (Kahn, J., those who proceed without counsel."); Faretta v. adopting report-recommendation of Lowe, M.J.). California, 422 U.S. 806, 834, n. 46, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) ("The right of III. ANALYSIS self-representation is not a license ... not to comply with relevant rules of procedural and A. First Basis for Dismissal: Facial M erit of substantive law."); Triestman v. Fed. Bureau of Defendants' Unopposed M otion Prisons, 470 F.3d 471, 477 (2d Cir.2006) (pro se status "does not exempt a party from compliance "Where a properly filed motion is unopposed and the with relevant rules of procedural and substantive Court determines that the moving party has met its burden law") [citation omitted]; Traguth v. Zuck, 710 to demonstrate entitlement to the relief requested therein, F.2d 90, 95 (2d Cir.1983) (pro se status "does the non-moving party's failure to file or serve any papers not exempt a party from compliance with as required by this Rule shall be deemed as consent to the relevant rules of procedural and substantive granting or denial of the motion, as the case may be, law") [citation omitted]; cf. Phillips v. Girdich, unless good cause be shown." N.D.N.Y. L.R. 7.1(b)(3). 408 F.3d 124, 128, 130 (2d Cir.2005) (acknowledging that pro se plaintiff's complaint Here, Defendants' motion to dismiss is properly filed, could be dismissed for failing to comply with Plaintiff has failed to oppose it (despite being warned of Rules 8 and 10 if his mistakes either "undermine the possible consequences of that failure), FN35 and the purpose of notice pleading [ ]or prejudice the Plaintiff has failed to show good cause why his failure to adverse party"). oppose Defendants' motion should not be deemed as consent to the granting of the motion. Therefore, I must FN34. Stinson v. Sheriff's Dep't of Sullivan Cty., determine whether Defendants have met their burden to 499 F.Supp. 259, 262 & n. 9 (S.D.N.Y.1980); "demonstrate entitlement to dismissal" under Rule accord, Standley v. Dennison, 05-CV-1033, 12(b)(6). FN36 2007 WL 2406909, at *6, n. 27 (N.D.N.Y. A ug.2 1 , 20 0 7) (S h arpe, J., ad o p ting FN35. (Dkt. No. 12, Part 1 [Defs.' Notice of report-recommendation of Lowe, M.J.); Muniz v. Motion].)

Goord, 04-CV-0479, 2007 WL 2027912, at *2 (N.D.Y.Y. July 11, 2007) (McAvoy, J., adopting FN36. See also Fed.R.Civ.P. 7(b)(1) (requiring report-recommendation of Lowe, M .J.); motions to, inter alia, "state with particularity the DiProjetto v. Morris Protective Serv., 489 grounds therefor"). F.Supp.2d 305, 307 (W.D.N.Y.2007); Cosby v. City of White Plains, 04-CV-5829, 2007 WL An inquiry into whether a movant has met its "burden 853203, at *3 (S.D.N.Y. Feb.9, 2007); Lopez v. to demonstrate entitlement" to dismissal under Local Rule Wright, 05-CV-1568, 2007 WL 388919, at *3, n. 7.1(b)(3) is a more limited endeavor than a review of a 11 (N.D.N.Y. Jan.31, 2007) (Mordue, C.J., contested motion to dismiss. Specifically, under such an adopting report-recommendation of Lowe, M.J.); analysis, the movant's burden has appropriately been Richards v. Goord, 04-CV-1433, 2007 WL characterized as "modest." FN37 This is because, as a 201109, at *5 (N.D.N.Y. Jan.23, 2007) (Kahn, practical matter, the burden requires only that the movant J., adopting report-recommendation of Lowe, present an argument that is "facially meritorious." FN38 M.J.); Ariola v. Onondaga County Sheriff's Dept., 04-CV-1262, 2007 WL 119453, at *2, n. FN37. See, e.g., Ciaprazi v. Goord, 02-CV-0915, 13 (N.D.N.Y. Jan.10, 2007) (Hurd, J., adopting 2005 WL 3531464, at *8 (N.D.N.Y. Dec.22, report-recommendation of Lowe, M.J.); Collins 2005) (Sharpe, J.; Peebles, M.J.) (characterizing v. Fed. Bur. of Prisons, 05-CV-0904, 2007 WL defendants' threshold burden on a motion for summary judgment as "modest") [citing Celotex Corp. v. Catrett, 477 U.S. 317, 323-324, 106 March 28, 2007) (McAvoy, J.); Kele v. Pelkey, S.Ct. 2548, 91 L.Ed.2d 265 (1986) ]; accord, 03-CV-0170, 2006 U.S. Dist. LEXIS 95065, at Saunders v. Ricks, 03-CV-0598, 2006 WL *5 & n. 2 (N.D.N.Y. Dec. 19, 2006) (Lowe, 3051792, at *9 & n. 60 (N.D.N.Y. Oct.18, 2006) M.J.), adopted by 2007 U.S. Dist. LEXIS 4336 (Hurd, J., adopting Report-Recommendation of (N.D.N.Y. Jan. 22, 2007) (Kahn, J.).

Lowe, M.J.), Smith v. Woods, 03-CV-0480, 2006 WL 1133247, at *17 & n. 109 (N.D.N.Y. Here, I find that Defendants have met their lightened A p r . 2 4 , 2 0 0 6 ) ( H u r d , J . , a d o p t i n g burden on their unopposed motion given Defendants' Report-Recommendation of Lowe, M.J.); see cogent, and legally supported, legal arguments set forth in also Race Safe Sys. v. Indy Racing League, 251 their memoranda of law. (Dkt. No. 12, Part 2, 1-9 [Defs.' F.Supp.2d 1106, 1109-1110 (N.D.N.Y.2003) Memo. of Law].) I note that this Court has, on numerous (Munson, J.) (reviewing merely whether record occasions, granted motions to dismiss based on a similar contradicted defendant's arguments, and whether facial analysis of a defendant's legal arguments (and a record supported plaintiff's claims, in deciding plaintiff's claims).FN39 unopposed motion to dismiss, under Local Rule 7.1[b][3] ); Wilmer v. Torian, 96-CV-1269, 1997 FN39. See, e.g., Wilmer v. Torian, 96-CV-1269, U.S. Dist. LEXIS 16345, at *2 (N.D.N.Y. Aug. 1997 U.S. Dist. LEXIS 16345, at *2 (N.D.N.Y. 29, 1997) (Hurd, M.J.) (applying prior version of Aug. 29, 1997) (Hurd, M.J.) (applying prior Rule 7.1[b][3], but recommending dismissal version of Local Rule 7.1[b][3], but because of plaintiff's failure to respond to motion recommending dismissal because of plaintiff's to dismiss and the reasons set forth in defendants' failure to respond to motion to dismiss and the motion papers), adopted by 1997 U.S. Dist. reasons set forth in defendants' motion papers), LEXIS 16340, at *2 (N.D.N.Y. Oct. 14, 1997) adopted by 96-CV-1269, 1997 U.S. Dist. LEXIS (Pooler, J.); accord, Carter v. Superintendent 16340, at *2 (N.D.N.Y. Oct. 14, 1997) (Pooler, Montello, 95-CV-989, 1996 U.S. Dist. LEXIS J.); accord, Carter v. Superintendent Montello, 15072, at *3 (N.D.N.Y. Aug. 27, 1996) (Hurd, 95-CV-0989, 1996 U.S. Dist. LEXIS 15072, at M .J.), adopted b y 9 8 3 F.Supp. 595 *3 (N.D.N.Y. Aug. 27, 1996) (Hurd, M.J.), (N.D.N.Y.1996) (Pooler, J.). adopted by 983 F.Supp. 595 (N.D.N.Y.1996) (Pooler, J.); Munoz v. Coombe, 95-CV-1191, FN38. See, e.g., Hernandez v. Nash, 1996 U.S. Dist. LEXIS 15107, at *3 (N.D.N.Y. 00-CV-1564, 2003 U.S. Dist. LEXIS 16258, at Aug. 21, 1996) (Hurd, M.J.), adopted by *7-8 (N.D.N.Y. Sept. 10, 2003) (Sharpe, M.J.) 95-CV-1191, 1996 U.S. Dist. LEXIS 15108, at (before a motion to dismiss may be granted *2 (N.D.N.Y. Oct. 11, 1996) (Pooler, J.) under Local Rule 7.1[b] [3], "the court must (rejecting plaintiff's objections, explaining that review the motion to determine whether it is "Local Rule 7.1(b) permits the court to grant an facially meritorious" ) [emphasis added; unopposed motion"); O wens v. Long, citations omitted]; accord, Topliff v. Wal-Mart 95-CV-0604, 1996 U.S. Dist. LEXIS 6520, at *2 Stores East LP, 04-CV-0297, 2007 U.S. Dist. (N.D.N.Y. March 11, 1996) (Hurd, M.J.), LEXIS 20533, at *28 & n. 43 (N.D.N.Y. March adopted by 95-CV-0604, 1996 U.S. Dist. LEXIS 22, 2007) (Lowe, M.J.); Hynes v. Kirkpatrick, 4807 (N.D.N.Y. Apr. 10, 1996) (Pooler, J.). 05-CV-0380, 2007 U.S. Dist. LEXIS 24356, at *5-6 & n. 2 (N.D.N.Y. March 21, 2007) (Lowe, Even if I were to subject Defendants' legal arguments M.J.); Sledge v. Kooi, 04-CV-1311, 2007 U.S. to the detailed scrutiny that would be appropriate on a Dist. LEXIS 26583, at *28-29 & n. 40 conteste d motion to dismiss, I would be persuaded by (N.D.N.Y. Feb. 12, 2007) (Lowe, M.J.), adopted those legal arguments. For the sake of brevity, I will not by 2007 U.S. Dist. LEXIS 22458 (N.D.N.Y. repeat in detail all of Defendants arguments but only make two points. while in Disciplinary Segregation Unit did not demonstrate a serious deprivation under the First, I agree with Defendants that, even when Eighth Amendment); Green v. Ferrell, 801 F.2d construed with the utmost of special leniency, Plaintiff's 765, 771-72 (5th Cir.1986) (holding that Eighth Complaint and its attachments fail to allege facts plausibly Amendment was not violated by policy denying suggesting a deprivation that was sufficiently serious to inmates out-of-cell exercise for first 15 days of constitute a violation of the Eighth Amendment. punitive confinement).

Generally, to prevail on a claim of inadequate prison conditions, a plaintiff must show two things: (1) that the *6 Second, I agree with Defendants that, even when conditions of his confinement resulted in deprivation that construed with the utmost of special leniency, Plaintiff's was sufficiently serious; and (2) that the defendant acted Complaint fails to state a due process claim under the with deliberate indifference to the plaintiff's health or Fourteenth Amendment because a violation of DOCS safety. Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. Directive 4933 does not constitute a violation of the 1970, 128 L.Ed.2d 811 (1994); Davidson v. Murray, 371 Fourteenth Amendment. Section 1983 provides, in F.Supp.2d 361, 370 (W.D.N.Y.2005). The denial of one pertinent part, "Every person who ... subjects, or causes to hour of outdoor exercise (and radios and "supplies") on be subjected, any citizen of the United States or other four days during a seventy-one (71) day period of time is person within the jurisdiction thereof to the deprivation of not a deprivation that is sufficiently serious for purposes any rights, privileges, or immunities secured by the of the Eighth Amendment.FN40 Constitution and laws, shall be liable to the party injured ...." 42 U.S.C. § 1983 [emphasis added]. The term "the FN40. Arce v. Walker, 907 F.Supp. 658, 662-63 Constitution and laws" refers to the United States (W.D.N.Y.1995) (holding, inter alia, that Constitution and federal laws.FN41 A violation of a state denying inmate one hour of daily exercise law or regulation, in and of itself, does not give rise to outside his cell, as required by state regulation, liability under 42 U.S.C. § 1983.FN42 Furthermore, the for 18 out of 19 days did not violate inmate's violation of a DOCS Directive, alone, is not even a Eighth Amendment rights, as a matter of law), violation of New York State law or regulation.FN43 This is affirmed in pertinent part, 139 F.3d 329, 337-38 because a DOCS Directive is "merely a system the (2d Cir.1998); Ochoa v. Connell, 05-CV-1068, [DOCS] Commissioner has established to assist him in 2007 WL 3049889, at *12 (N.D.N.Y. Oct.18, exercising his discretion," which he retains, despite any 2007) (Sharpe, J.) (holding that denial of violation of that Directive. FN44 exercise on 11 out of 33 days did not violate

Eighth Amendment) [citations omitted]; Ford v. FN41. See Adickes v. S.H. Kress & Co., 398 U.S. Phillips, 05-CV-6646, 2007 W L 946703, at *9 144, 150, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970) (S.D.N.Y. March 27, 2007) (holding that denial ("The terms of § 1983 make plain two elements of exercise on 5 days did not violate Eighth that are necessary for recovery. First, the plaintiff Amendment); Gibson v. City of New York, must prove that the defendant has deprived him 96-CV-3409, 1998 WL 146688, at *3 (S.D.N.Y. of a right secured by the 'Constitution and laws' Mar.25, 1998) (holding that denying inmate of the United States." ) (emphasis added); exercise for 8 days in a 60 day period did not Patterson v. Coughlin, 761 F.2d 886, 890 (2d violate Eighth Amendment) [citations omitted]; Cir.1985) ("Recovery under 42 U.S.C. § 1983 ... Davidson v. Coughlin, 968 F.Supp. 121, 131 is premised upon a showing, first, that the (S.D.N.Y.1997) (holding that denying inmate defendant has denied the plaintiff a constitutional exercise for 14 days did not violate Eighth or federal statutory right ....") (citation omitted; Amendment) [citations omitted]; see also May v. emphasis added); Fluent v. Salamanca Indian Baldwin, 109 F.3d 557, 565 (9th Cir.1997) Lease Auth., 847 F.Supp. 1046, 1056 (deprivation of outdoor exercise for 21 days (W.D.N.Y.1994) ("The initial inquiry in a § 1983 action is whether the Plaintiff has been granted.FN45 deprived of a right 'secured by the Constitution and laws' of the United States." ) [emphasis FN45. The authority to conduct this sua sponte added]. analysis is derived from two sources: (1) 28 U.S.C. § 1915(e)(2)(B)(ii), which provides that FN42. See Doe v. Conn. Dept. of Child & Youth "the court shall dismiss [a] case [brought by a Servs., 911 F.2d 868, 869 (2d Cir.1990) ("[A] prisoner proceeding in forma pauperis ] at any violation of state law neither gives [plaintiff] a § time if the court determines that ... the action ... 1983 claim nor deprives defendants of the is frivolous or malicious[,] ... fails to state a defense of qualified immunity to a proper § 1983 claim on which relief may be granted[,] ... or ... claim."); Patterson, 761 F.2d at 891 ("[A] state seeks monetary relief against a defendant who is employee's failure to conform to state law does immune from such relief"; and (2) 28 U.S.C. § not in itself violate the Constitution and is not 1915A(b), which provides that, "[o]n review, the alone actionable under § 1983 ....") (citation court shall ... dismiss the [prisoner's] complaint, omitted); Murray v. Michael, 03-CV-1434, 2005 or any portion of the complaint, if the complaint WL 2204985, at *10 (N.D.N.Y. Sept.7, 2005) ... is frivolous, malicious, or fails to state a claim (DiBianco, M.J.) ("[A]ny violations of state upon which relief may be granted ...." regulations governing the procedures for disciplinary hearings ... do not rise to the level of With regard to Plaintiff's Fourteenth equal protection constitutional violations.") (citation omitted); claim (i.e., his claim that Defendants Souza and Zurawski Rivera v. Wohlrab, 232 F.Supp.2d 117, 123 discriminated against inmates based on their Hispanic (S.D.N.Y.2002) ( "[V]iolations of state law national origin), to prove a violation of the Equal procedural requirements do not alone constitute Protection Clause, a plaintiff must demonstrate that he was a deprivation of due process since '[f]ederal intentionally treated differently from others similarly constitutional standards rather than state law situated as a result of intentional or purposeful define the requirements of procedural due discrimination directed at an identifiable or suspect process.' ") (citing Russell v. Coughlin, 910 F.2d class.FN46 Here, Plaintiff has not alleged facts plausibly 75, 78 n. 1 [2d Cir.1990] ). suggesting that the deprivations that allegedly occurred on May 5, May 23, July 9, and July 15, 2007, were caused by FN43. See Rivera v. Wohlrab, 232 F.Supp.2d some sort of racial animus on the part of Defendants. See, 117, 123 (S.D.N.Y.2002) (citation omitted); supra, Part I.A. of this Report-Recommendation.FN47

Lopez v. Reynolds, 998 F.Supp. 252, 259 Rather, the only allegations of racial animus that Plaintiff (W.D.N.Y.1997). offers are vague as to how, when and by whom the discrimination was committed. Id. More importantly, FN44. See Farinaro v. Coughlin, 642 F.Supp. Plaintiff's allegations are devoid of any indication as to 276, 280 (S.D.N.Y.1986). why he believed the offending officers were acting with racial animus, rendering his allegation of discrimination Finally, a few words are necessary about Plaintiff's wholly conclusory. Id. Similarly, Plaintiff's allegation that Fourteenth Amendment equal protection claim and his Defendant Souza threatened to file a false misbehavior First Amendment retaliation claim. Even though report against him and his cellmate (who spoke only Defendants do not specifically address these claims in Spanish) fails to allege any facts plausibly suggesting that their motion, the Court is not precluded from analyzing Defendant Souza made that threat because of racial these claims because, in a pro se prisoner civil rights case, animus (or even that he carried out the threat). Id. a district court may (and, indeed, has a duty to) sua sponte address whether the pleading in such a case has FN46. Travis v. N.Y. State Div. of Parole, successfully stated a claim upon which relief may be 96-CV-0759, 1998 U.S. Dist. LEXIS 23417, at *11 (N.D.N.Y. Aug. 26, 1998) (Sharpe, M.J.), FN48. Mount Healthy City Sch. Dist. Bd. of adopted, 96-CV-0759, Decision and Order Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, (N.D.N.Y. filed Nov. 2, 1998) (McAvoy, C.J.). 50 L.Ed.2d 471 (1977); Gill, 389 F.3d at 380 (citing Dawes v. Walker, 239 F.3d 489, 492 [2d. FN47. Indeed, to the contrary, he has alleged the Cir.2001] ). deprivation that occurred on July 7, 2007, occurred because he had filed a grievance against FN49. (Dkt. No. 1, at 30-31 [Ex. B to Plf.'s Defendant Souza. See, supra, Part I.A. of this Compl., attaching letters of complaint from Report-Recommendation. Plaintiff dated July 9 and 15, 2007].)

*7 With regard to Plaintiff's First Amendment FN50. Lunney v. Brureton, 04-CV-2438, 2007 retaliation claim (i.e., his claim against Defendant U.S. Dist. LEXIS 38660, at *65-66 (S.D.N.Y. Zurawaski for depriving him of the one hour of outdoor May 25, 2007) ("Case law suggests that the exercise that he was permitted on July 9, 2007, by DOCS isolated or sporadic denial of privileges [such as Directive 4933, in retaliation against him for having filed recreation] do not suffice to state a claim of a grievance against Defendant Zurawaski), to prevail on a actionable retaliation.") [citations omitted]; cf. First Amendment claim under 42 U.S.C. § 1983, a Snyder v. McGinnis, 03-CV-0902, 2004 WL plaintiff must prove by the preponderance of the evidence 1949472, at *11 (W.D.N.Y. Sept.2, 2004) that: (1) the speech or conduct at issue was "protected"; (deprivation of one meal on two occasions was (2) the defendants took "adverse action" against the de minimis, and did not state a claim for plaintiff-namely, action that would deter a similarly retaliation); Bartley v. Collins, 95-CV-10161, situated individual of ordinary firmness from exercising 2006 U.S. Dist. LEXIS 28285, at *21 (S.D.N.Y. his or her constitutional rights; and (3) there was a causal May 12, 2006) ("Bates' misbehavior report connection between the protected speech and the adverse against plaintiff and Collins's first report, which action-in other words, that the protected conduct was a both resulted in plaintiff's temporary loss of "substantial or motivating factor" in the defendants' various privileges such as permission to visit the decision to take action against the plaintiff.FN48 Here, commissary, likewise do not constitute adverse Plaintiff has alleged facts plausibly suggesting that he action because they were de minimis: they do not engaged in protected activity and that Defendant constitute penalties that would deter a similarly Zurawaski took action against him because of that activity. situated prisoner of ordinary firmness from See, supra, Part I.A. of this Report-Recommendation. exercising his constitutional rights.") [citations However, he has failed to allege facts plausibly suggesting omitted]. that the action taken by Defendant Zurawaski-denying him one hour of outdoor exercise while he was confined in the For these reasons, I recommend that the Court grant S.H.U.-was sufficiently adverse for purposes of the First Defendants' motion and dismiss Plaintiff's Complaint in its Amendment. Id. It is noteworthy that Plaintiff has alleged entirety. that, following this denial (on July 9, 2007), he continued to engage in the protected activity of filing complaints B. Alternative Basis for Dismissal: Fed.R.Civ.P. 41 about Defendant Zurawaski.FN49 Under the circumstances alleged, I find that depriving Plaintiff one hour of exercise Rule 41 of the Federal Rules of Civil Procedure was de minimis adverse action, in that it was insufficient provides, "If the plaintiff fails to prosecute or to comply to "deter a similarly situated prisoner of ordinary firmness with these rules or a court order, a defendant may move to from exercising his constitutional rights." Davis v. Goord, dismiss the action or any claim against it." Fed.R.Civ.P. 320 F.3d 246, 353 (2d Cir.2003) [internal quotation marks 41(b). Even though Fed.R.Civ.P. 41(b) speaks only of a and citation omitted]. FN50 dismissal on a motion by a defendant, courts have recognized that the rule does nothing to abrogate a district court's inherent power to dismiss a plaintiff's complaint, sua sponte, for failure to prosecute.FN51 Moreover, the term 2001 U.S. Dist. LEXIS 18133, at *3 (N.D.Tex.

"these rules" in Fed.R.Civ.P. 41(b) is construed to mean Nov. 5, 2001) (dismissing complaint pursuant to not only the Federal Rules of Civil Procedure, but also the Fed.R.Civ.P. 41[b] for failing to comply with the local rules of practice for a district court (since district court's Local Rule 83.13); Shough v. Fed.R.Civ.P. 83[a][1] expressly authorizes district courts Coyle, 00-CV-0237, 2000 U.S. Dist. LEXIS to adopt local rules of practice).FN52 As a result, 21796, at *4 (D.Colo. Aug. 10, 2000) dismissing Fed.R.Civ.P. 41(b) may be fairly characterized as complaint pursuant to Fed.R.Civ.P. 41[b] for providing for two independent grounds for dismissal on failing to comply with the district court's Local motion or on the Court's own initiative: (1) a failure to Rule 5.1[L] ). prosecute the action, and (2) a failure to comply with the procedural rules, or any Order, of the Court. Id. *8 W ith regard to the second ground for dismissal (a

FN51. Saylor v. Bastedo, 623 F.2d 230, 238-239 failure to comply with an Order of the Court), the legal (2d Cir.1980) (recognizing that, under the standard governing such a dismissal is very similar to the language of Rule 41[b], a district court retains legal standard governing a dismissal for failure to the inherent power to dismiss a plaintiff's prosecute. "Dismissal pursuant to Fed. R. Civ.P. 41(b) for complaint, sua sponte, for failure to prosecute) failure to comply with an order of the court is a matter [citations omitted]; see also N.D.N.Y. L.R. committed to the discretion of the district court."

FN53 The 41.2(a) ("Whenever it appears that the plaintiff correctness of a Rule 41(b) dismissal for failure to comply has failed to prosecute an action or proceeding with an order of the court is determined in light of five diligently, the assigned judge shall order it factors: dismissed.").

FN53. Alvarez v. Simmons Market Research

FN52. See, e.g., Tylicki v. Ryan, 244 F.R.D. 146, Bureau, Inc., 839 F.2d 930, 932 (2d Cir.1988) 147 (N.D.N.Y.2006) (Kahn, J.) (dismissing [citations omitted]. complaint pursuant to Fed.R.Civ.P. 41[b] for failing to comply with, inter alia, the district (1) the duration of the plaintiff's failure to comply with court's Local Rule 10.1[b][2] ); In re Interbank the court order, whether plaintiff was on notice that F u nd in g C o rp., 310 B .R. 2 3 8 , 2 5 4 failure to comply would result in dismissal, (3) whether (Bankr.S.D.N.Y.2004) (dismissing complaint the defendants are likely to be prejudiced by further pursuant to Fed.R.Civ.P. 41 [b] for failing to delay in the proceedings, (4) a balancing of the court's comply with, inter alia, the district court's local interest in managing its docket with the plaintiff's rules); see also Abdullah v. Acands, Inc., 30 F.3d interest in receiving a fair chance to be heard, and (5) 264, 269-70 (1st Cir.1994) (affirming district whether the judge has adequately considered a sanction court dismissal pursuant to Fed.R.Civ.P. 41[b] less drastic than dismissal.FN54 for failing to comply with, inter alia, the district court's local rule governing joinder); Kilgo v. FN54. Lucas v. Miles, 84 F.3d 532, 535 (2d Ricks, 983 F.2d 189, 192 (11th Cir.1993) ("A Cir.1996) [citations omitted]. district court has authority under Federal Rule of Civil Procedure 41(b) to dismiss actions for Here, on September 17, 2007, the Court ordered failure to comply with local rules."); Hewitt v. Plaintiff, inter alia, to keep the Clerk's Office apprised of Romeo-Rim, Inc., 05-CV-40236, 2006 U.S. Dist. his current address. (Dkt. No. 6, at 3 [Order filed Sept. 17, LEXIS 90803, at *2 (E.D.Mich. Nov. 14, 2006) 2007].) Specifically, the Court advised Plaintiff that he is (dismissing complaint pursuant to Fed.R.Civ.P. "required to promptly notify the Clerk's Office and all 41[b] for failing to comply with, inter alia, the parties or their counsel of any change in [his] address; district court's local rule requiring response to his failure to do same will result in the dismissal of this motion); Chillis v. U.S. Postal Off., 01-CV-0913, action." (Id.) As of that date, Plaintiff's address of record had been Marcy C.F. (Dkt. No. 1, ¶ 2 [Plf.'s Compl.].)

On November 10, 2007, Plaintiff notified the Court of his which contains similar notifications. N.D.N.Y. change in address to Fishkill C.F. (Dkt. No. 14.) However, L.R. 10.1(b)(2), 41.2(a), (b). Clearly, Plaintiff on November 24, 2007, Plaintiff was released from the received this notice, since in his Notice of custody of the Department of Correctional Services. (Id.) Change of Address, filed on November 15, 2007, See also N.Y. S. D.O.C.S. Inmate Locator System Report he promised the Court that "as soon [as][I] know R e g a r d i n g P l a i n t i f f h t t p : / / the address [of the] shelter or program [I'm] IN going to I will write the [C]court with the Q130 (last visited Sept. 11, 2008). Since his release, address." (Dkt. No. 14.)

Plaintiff has not notified the Court of his change of address. FN57. For example, further delay by Plaintiff may very well result in the fading of memories, I have weighed the five factors listed above, and I the discarding of relevant documents, and the have concluded that they weigh decidedly in favor of retirement or transfer of witnesses. See dismissal.FN55 With regard to the first factor, I find that the Geordiadis v. First Boston Corp., 167 F.R.D. 24, duration of Plaintiff's failure to provide his current address 25 (S.D.N.Y.1996) ("The passage of time always has been nearly nine and a half months. With regard to the threatens difficulty as memories fade. Given the second factor, I find that Plaintiff has received adequate age of this case, that problem probably is severe notice that the sort of delay that he has caused in this already. The additional delay that plaintiff has action (due to his failure to provide his current address) caused here can only make matters worse."). would result in dismissal.FN56 With regard to the third factor, I find that Defendants are likely to be prejudiced by FN58. I note that it is cases like this one that a further delay. FN57 With regard to the fourth factor, I have delay the resolution of other cases, and that taken care to strike an appropriate balance between contribute to the Second Circuit's dubious alleviating Court calendar congestion and protecting a distinction as having (among the twelve circuits, party's right to due process and a fair chance to be heard, including the D.C. Circuit) the longest median and I find that the need to alleviate congestion on the time to disposition for prisoner civil rights cases, Court's docket outweighs Plaintiff's right to receive a between 2000 and 2005 (9.8 months, as further chance to be heard in this matter. FN58 With regard compared to a national average of 5.7 months). to the fifth factors, I have considered all less-drastic sanctions and rejected them under the circumstances.FN59 FN59. For example, I am persuaded that issuing an Order chastising Plaintiff for his conduct

FN55. See, e.g., Robinson v. Middaugh, would be futile, given the fact that such an Order 95-CV-0836, 1997 U.S. Dist. LEXIS 13929, at will almost certainly never reach Plaintiff, due to *2-3 (N.D.N.Y. Sept. 11, 1997) (Pooler, J.) his failure to provide a current address. I am also (dismissing action under Fed.R.Civ.P. 41[b] persuaded that simply waiting another month or where plaintiff failed to inform the Clerk of his so for Plaintiff to contact the Court would also be change of address despite having been previously futile, given the fact that he has failed to contact ordered by Court to keep the Clerk advised of the Court for nearly ten months now. such a change).

*9 For these reasons, I recommend that, in the FN56. This notice was provided by the Court's alternative, the Court sua sponte dismiss Plaintiff's Order of September 17, 2007. (Dkt. No. 6, at 3 Complaint with prejudice for failure to diligently [Order filed Sept. 17, 2007].) It was provided prosecute this action. also by the Local Rules of Practice for this Court, which the Clerk's Office has provided to all ACCORDINGLY, it is correctional facilities in New York State, and RECOM M ENDED that Defendants' motion to 532, 535 (5th Cir.1994) ("By waiting until after dismiss for failure to state a claim (Dkt. No. 12) be the magistrate judge had issued its findings and GRANTED, and that Plaintiff's Complaint be recommendations [to raise its procedural default DISMISSED in its entirety. argument] ... Respondent has waived procedural default ... objection [ ].") [citations omitted]; A N Y O B J E C T I O N S t o t h i s Greenhow v. Sec'y of Health & Human Servs., Report-Recommendation must be filed with the Clerk 863 F.2d 633, 638-39 (9th Cir.1988) of this Court within TEN (10) WORKING DAYS, ("[A]llowing parties to litigate fully their case PLUS THREE (3) CALENDAR DAYS from the date before the magistrate and, if unsuccessful, to of this Report-Recommendation (unless the third change their strategy and present a different calendar day is a legal holiday, in which case add a theory to the district court would frustrate the fourth calendar day). See 28 U.S.C. § 636(b)(1); purpose of the Magistrates Act."), overruled on Fed.R.Civ.P. 72(b); N.D.N.Y. L.R. 72.1(c); Fed.R.Civ.P. other grounds by U.S. v. Hardesty, 977 F.2d 6(a)(2), (d). 1347 (9th Cir.1992); Patterson-Leitch Co. Inc. v. Mass. Mun. Wholesale Elec. Co., 840 F.2d 985, BE ADVISED that the District Court, on de novo 990-91 (1st Cir.1988) ("[A]n unsuccessful party review, will ordinarily refuse to consider arguments, is not entitled as of right to de novo review by case law and/or evidentiary material that could have the judge of an argument never seasonably raised been, but were not, presented to the M agistrate Judge before the magistrate.") [citation omitted]. in the first instance. FN60

FN60. See, e.g., Paddington Partners v. objections to this Report-Recommendation will Bouchard, 34 F.3d 1132, 1137-38 (2d Cir.1994) PRECLUDE LATER APPELLATE REVIEW of any ("In objecting to a magistrate's report before the Order of judgment that will be entered. Roldan v. district court, a party has no right to present Racette, 984 F.2d 85, 89 (2d Cir.1993) (citing Small v. further testimony when it offers no justification Sec'y of H.H.S., 892 F.2d 15 [2d Cir.1989] ). for not offering the testimony at the hearing before the magistrate.") [internal quotation marks N.D.N.Y.,2008. and citations omitted]; Pan Am. World Airways, Inc. v. Int'l Bhd. of Teamsters, 894 F.2d 36, 40 n. Tejada v. Mance 3 (2d Cir.1990) (district court did not abuse its Not Reported in F.Supp.2d, 2008 WL 4384460 discretion in denying plaintiff's request to present (N.D.N.Y.) additional testimony where plaintiff "offered no END OF DOCUMENT justification for not offering the testimony at the hearing before the magistrate"); Alexander v. Evans, 88-CV-5309, 1993 WL 427409, at *18 n. 8 (S.D.N.Y. Sept.30, 1993) (declining to consider affidavit of expert witness that was not before magistrate) [citation omitted]; see also Murr v. U.S., 200 F.3d 895, 902, n. 1 (6th Cir.2000) ("Petitioner's failure to raise this claim before the magistrate constitutes waiver.");

Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir.1996) ("Issues raised for the first time in o b je c tio n s to th e m a g istrate jud g e's recommendations are deemed waived.") [citations omitted]; Cupit v. Whitley, 28 F.3d BE ALSO ADVISED that the failure to file timely A full hearing was initially scheduled for December 11, 2001. After conferencing with the parties, the Court Only the Westlaw citation is currently available. determined that it would be prudent to proceed with a United States District Court, N.D. New York. bifurcated hearing limited to the issues of whether Mr. Selah sincerely holds his beliefs and whether those beliefs Selam SELAH, Plaintiff, are religious in nature. See Jolly v. Coughlin, 76 F.3d 468, v. 476 (2d Cir.1996).

Glenn GOORD, Commissioner of Docs, et al, Defendants. A hearing on those issues took place on December 11, No. 00-CV-0644. 2001. Mr. Selah testified as did Nurse Christine Coyne, a correctional facility nursing supervisor; Director of the Jan. 2, 2002. Inmate Grievance Program Thomas G. Eagen; and Dr. Elmer Robert Keach, III, Albany NY, Appointed for Lester N. Wright, Deputy Commissioner and Chief Plaintiff, of counsel. Medical Officer of DOCs. The Court now issues the following decision.

Attorney General of New York, The Capitol, Albany, NY, for the Defendants. I. FACTUAL FINDINGS Deborah A. Ferro, Assistant Attorney General, of counsel. A. Plaintiff's Religious Beliefs Decision and Order The Court found that Plaintiff testified credibly regarding his religious beliefs and the basis for those MCAVOY, J. beliefs. Thus, the Court will summarize the relevant *1 Plaintiff, who is incarcerated, brought this action portions of those beliefs here. pursuant to 42 U.S.C. § 1983 claiming that the current New York State Department of Corrections policy of Plaintiff is an Ethiopian Orthodox Christian. He was mandatory administration of a purified protein derivative raised in this faith and continues to adhere to this faith (PPD) skin test to inmates in order to detect latent today. Plaintiff has filed numerous grievances with DOCs Tuberculosis (TB) violates his First Amendment right to alleging denials of his religious expression. These include free expression of his religion. Plaintiff originally brought grievances requesting that he be allowed to have a kosher this action pro se, but following the Southern District's diet, requesting that his religion be properly recognized on decision in Reynolds v. Goord, 103 F.Supp.2d 316 his inmate housing form, requesting that he be allowed a (S.D.N.Y.2000), this Court appointed counsel for Mr. prayer shawl, and requesting that he be allowed a prayer Selah. cap. Plaintiff additionally spent some time on a hunger Mr. Selah had filed a motion seeking a preliminary strike, refusing to eat when DOCs would not supply him injunction preventing the Department of Corrections with a kosher diet. He has filed two previous lawsuits (DOCs) from administering the PPD test during the against DOCs regarding the official recognition of his pendency of this action. That motion was supplemented by religion and his right to a kosher diet. These resulted in his appointed counsel. The Attorney General responded to agreements by DOCs to recognize Plaintiff's religion and both the initial motion and the supplemental papers. allow him to have a kosher diet.

Following oral argument on November 13, 2001, this Court ruled in an oral decision that there were evidentiary Plaintiff testified that his religion is similar to issues necessitating a hearing.

Judaism, except that his religion recognizes Jesus Christ complaints with regard to the TB testing that were pointed as the Messiah. Thus, he consults with the prison Rabbi out by DOCs. The Court will address those here. when he has questions about how he should follow his Prior PPD Tests religion. Plaintiff believes in a literal interpretation of the Bible. It is from this literal interpretation that his The first item addressed by DOCs is that Plaintiff objections to the PPD test stem. In particular, Plaintiff has took the PPD test from 1993 until 1999 without refusal. provided the Court with two passages of the Bible that he Plaintiff explained this by stating that it was his belief that believes are violated by the PPD test. These verses are as refusal of the PPD test constituted disobedience of a direct follows. order, and that such reports would harm his chances for parole. Plaintiff also indicated that he had objected to the *2 Ye shall not make any cuttings in your flesh for the tests during this time, but had not refused them because of dead, nor print any marks upon you: I am the LORD. his desire not to be on TB hold or to harm his chances of parole.

Leviticus 19:28 (King James). The Court also notes that Plaintiff had his legal name changed, as required by his religion, on May 4, 1998.

They shall not make baldness upon their head, neither Additionally, it is around this time in 1998 that Plaintiff shall they shave off the corner of their beard, nor make began to file numerous grievances regarding his religious any cuttings in their flesh. rights. It is not unimaginable that Plaintiff, for whatever

Leviticus 21:5 (King James).FN1 Based upon these reason, began to take his religion more seriously around passages, Plaintiff believes that he should not pierce his this time. flesh, should not be tatooed, and should not mar his skin in any way. When questioned about other provisions of the DOCs next points out that the records of Plaintiff's Bible, such as the prohibition in Leviticus against cutting grievances and objections to the PPD test do not one's hair and beard, Plaintiff was articulate in clarifying consistently relate to his religious beliefs. The Court will his beliefs and in providing support for his actions taken discuss these records here. in accordance with his interpretation of his religious obligations.FN2 Medical Records

FN1. The Court has used the King James DOCs points to the numerous medical records in Version of the Bible as that is what was used by which there is no mention of Plaintiff's religious objection. Plaintiff at the hearing. The Court notes that no reason for Plaintiff's refusal is stated in any of these records. They simply state that he FN2. For example, Plaintiff was asked refused PPD testing. The one exception to this is a note by specifically about the prohibition against cutting Nurse Androsko on December 16, 1999, which states: the hair and beard. It was obvious from Plaintiff's "per Inmate 'sick and tired of being stuck, wants alternate appearance that Plaintiff does, in fact, cut his hair testing as [sic] breathing test or x-rays." ' and trim his beard. Plaintiff stated that he had On January 26, 2000, there is a medical notation that discussed this with the Rabbi and religious Plaintiff "refuses for religious reasons" to take the PPD leaders in the Ethiopian Orthodox Church and test. That note is signed by Nurse Joyce Carson. The Court believed that this meant he was not to shave his notes that Nurse Carson was not the nurse who regularly hair or beard completely off. wrote Plaintiff's records. There are other records in which

Plaintiff requests alternative treatments to the PPD test,

B. DOCs Response but again, no reason for his objection is given.

The Court initially agreed to a bifurcated hearing The Court finds the medical records to be because of several inconsistencies in Plaintiff's prior inconclusive as to Plaintiff's intent. The records often consist of no more than the phrase "refused PPD test." Other Tests Involving Needles Without more consistent records regarding what about the PPD test he objected to, they do not clarify whether More problematic are other instances of Plaintiff Plaintiff objected for religious reasons. allowing needle tests to be done on him. In particular,

DOCs put forward evidence that Plaintiff received a

Inmate Grievances tetanus shots in 1991 and consented to an electromyography and nerve conduction test in 1997 and *3 The Plaintiff initiated a grievance on December again in 1999 .FN3 While the tetanus shot is prior to the 20, 1999. (Plaintiff's Ex. "1"). That grievance refers to apparent religious awakening of Plaintiff, the second numerous reasons for Plaintiff's desire not to take the PPD electromyography is not. Plaintiff did not testify regarding test. These include religious deprivation, that the his reasons for consenting to this test. The second test was substance did not look like the substance given to other a follow-up exam to test the changes that had occurred in patients, and that he had a fear of needles and HIV. the intervening time. Plaintiff's lack of objection to this Notably, the Inmate Grievance Committee recommended test does cast some doubt on the strictness of his religious that Plaintiff be given alternative means of TB testing beliefs. "which are the standards set by the federal courts." FN3. These tests involve electrodes being placed Although the Inmate Grievance Committee found that on the body and having electric currents sent Plaintiff had stated a recognizable objection, the medical through to test the reaction of the nerves. The staff at Auburn and the Superintendent on his direct appeal second part of the test involves having needles rejected that recommendation. Plaintiff then appealed to actually stuck into the skin of the patient and the Central Office Review Committee (CORC). Clearly, electric current delivered through those needles. that appeal by Plaintiff lays out his religious objections to the TB testing. He references the biblical statements on II LEGAL CONCLUSIONS which he relies and the prior settlement with DOCs in which DOCs agreed to recognize Plaintiff's religion. In determining whether Plaintiff has established that

The remainder of the inmate grievances address issues his First Amendment right to exercise his religion has been other than the PPD Test. infringed, the Court's analysis is limited to two issues-whether Selah sincerely holds his beliefs, and February 19, 2000 PPD test whether these beliefs are, "according to the claimant's own scheme of things," religious. Leitzsey v. Coombe, 998 On February 19, 2000, Plaintiff agreed to take the F.Supp. 282, 288 (W.D.N.Y.1998) (citing United States PPD test after several months of refusing. It is undisputed v. Seeger, 380 U.S. 163, 185, 85 S.Ct. 850, 13 L.Ed.2d that Plaintiff took the test in order to attend his father's 733 (1965)). "[The] judiciary has but a limited function ... funeral. DOCs makes much of the fact that Plaintiff did in determining whether beliefs are to be accorded free not enter the funeral home; however, it is clear from exercise protection. Our scrutiny extends only to whether Plaintiff's testimony that he did not enter the funeral home a claimant sincerely holds a belief and whether the belief because he was fully shackled. He states that when he is religious in nature." Jolly v. Coughlin, 76 F.3d 468, 476 attended his mother's funeral, no such shackles were in (2d Cir.1996); Breeland v. Goord, 1997 WL 139533, at *4

place. Plaintiff's father was a well-known member of the (S.D.N.Y. March 27, 1997). The propriety of a religious community, and Plaintiff believed that television cameras belief is not to be considered. Hernandez v. C.I.R., 490 would likely be covering his father's funeral. Thus, the U.S. 680, 699 (1989). Thus, the Court will examine these Court finds it entirely reasonable for Plaintiff to have two factors in reverse order. made the decision, as he asserts he did, not to embarrass Whether the Beliefs are Religious his family by attending his father's funeral in shackles. It is also clear that Plaintiff took this PPD test solely for the *4 The Second Circuit has approved of the following purpose of attending the funeral. definition of religion: "the feelings, acts, and experiences of individual men in their solitude, so far as they Consciousness v. Barber, 650 F.2d 430, 441 (2d apprehend themselves to stand in relation to whatever they Cir.1981)). The Court must attempt to differentiate may consider the divine." See Patrick v. LeFevre, 745 between "those beliefs that are held as a matter of F.2d 153, 157 (2d Cir.1984) and United States v. Moon, conscience and those that are animated by motives of 718 F.2d 1210, 1227 (2d Cir.1983) (both quoting deception and fraud." Patrick 749 F.2d at 157. The WILLIAM JAMES, THE VARIETIES OF RELIGIOUS Second Circuit has called this analysis "exceedingly EXPERIENCE 31 (1910)). Whether a belief is religious amorphous." Id. It "requir[es] the factfinder to delve into as opposed to simply a personal fear is a credibility the claimant's most veiled motivations and vigilantly determination for the factfinder to make. See Galinsky v. separate the issue of sincerity from the factfinder's Board of Education, 213 F.3d 262, 262 (2d Cir.2000) perception of the religious nature of the claimant's (trial court's finding that desire to avoid immunization beliefs." Id. stemmed from personal fears rather than religious beliefs *5 The Court notes that judicial entities are would not be disturbed as it was a credibility particularly ill suited for determining matters of essentially determination). The accuracy or acceptability of the personal conscience. Recognizing this inherent limitation, beliefs are not to be considered in this analysis. Patrick, the Court must base its decision on the credibility of the 745 F.2d at 157. Nor must the plaintiff show that his Plaintiff and the circumstances surrounding his objection beliefs are generally practiced in the religion he claims. to the PPD test. In examining these items, the Court See Campos v. Coughlin, 854 F.Supp. 194, 210 concludes that the Plaintiff sincerely holds his religious (S.D.N.Y.1994). "The freedom to exercise religious beliefs. beliefs cannot be made contingent on the objective truth of such beliefs." Patrick, 745 F.2d at 157 (quoting United First, the Plaintiff testified credibly regarding his States v. Ballard, 322 U.S. 78, 86, 64 S.Ct. 882, 886, 88 religious objections to the PPD test. Further, Plaintiff's L.Ed. 1148 (1944)). actions, at least since 1998, have shown him to The Court concludes that Plaintiff's beliefs are consistently object to the PPD test. Although Plaintiff did religious in nature. Plaintiff testified to the nature of his submit to the test in order to attend his father's funeral, the beliefs and the authority on which he bases those beliefs. Court notes that a Plaintiff may show sincerity even when Plaintiff also testified to consultation with religious he submits to a test after coercion. See Jolly 75 F.3d at leaders regarding the appropriate way to implement his 477 (Inmate did not need to show lengthy resistance to test beliefs. Plaintiff supported his belief that the skin should to prove sincerity); Reynolds, 103 F.Supp.2d at 334-335 not be lacerated with historical reasons for the rule, (inmate who took PPD test after objecting still sincere in stemming from religious origins, and provided ample his beliefs). Further, the Court does not find Plaintiff's interpretation for the various provisions of the Bible he prior submission to PPD tests to be a bar to his current claims support his view. Thus, Plaintiff has established the objections, particularly in light of the other circumstances first prong of the test. in Plaintiff's religious life.

Whether the Beliefs are Sincere The Court is mindful that Plaintiff did submit to the electromyography involving needles in April of 1999.

In analyzing the sincerity of Plaintiff's religious Despite this anomaly, the Court finds that Plaintiff is beliefs, this Court starts with the proposition that "[a] sincere in his desire to follow his faith as he sees claimant need not be a member of a particular organized it-including the prohibition on piercing the skin or religious denomination to show sincerity of beliefs." lacerating the flesh. The Court cannot truly know Jackson v. Mann, 169 F.3d 316, 319 (2d Cir.1999). When Plaintiff's heart and conscience, but determines that to the analyzing the sincerity of petitioner's religious beliefs, the extent it can judge Plaintiff's sincerity, that Plaintiff has Court should "seek[ ] to determine an adherent's good made a "good faith" expression of his religious beliefs. faith in the expression of his religious belief." Patrick, 745 F.2d at 157 (citing International Society for Krishna III.


Inasmuch as the Court finds that Mr. Selam Selah sincerely holds his beliefs and that these beliefs are religious, and that the Plaintiff's religious beliefs are burdened by DOCs' policy (see previous oral decision-if Plaintiff's beliefs are sincere and religious, then they are burdened by DOCs policy), the parties are ordered to proceed with a hearing on the issue of whether the burden placed on the Plaintiff by DOCs policy is justified.



Selah v. Goord Not Reported in F.Supp.2d, 2002 WL 73231 (N.D.N.Y.) END OF DOCUMENT

--- F.Supp.2d ----, 2012 WL 45470 (W.D.N.Y.)

(Cite as: 2012 WL 45470 (W.D.N.Y.))

If a complaint is sufficient to state a claim on which

Only the Westlaw citation is currently available. relief can be granted, the plaintiff's failure to respond to a motion to dismiss for failure to state a claim does not United States District Court, warrant dismissal. Fed.Rules Civ.Proc.Rule 12(b)(6), 28

U.S.C.A. W.D. New York.

Leon C. BLOOM, Jr., Plaintiff, [2] Limitation of Actions 241 58(1) v. Brian FISCHER in his capacity as Commissioner of the 241 Limitation of Actions New York State Department of Correctional Services (DOCS) and in his individual capacity, et al., 241II Computation of Period of Limitation Defendants. 241II(A) Accrual of Right of Action or Defense No. 11--CV--6237L. 241k58 Liabilities Created by Statute 241k58(1) k. In general. Most Cited Cases

Jan. 3, 2012. State inmate's causes of action for damages under § Background: State inmate brought § 1983 action against 1983 against Department of Correctional Services Department of Correctional Services (DOCS) employees (DOCS) employees or officials, alleging they violated his or officials, alleging they violated his constitutional rights constitutional rights by administratively imposing a period by administratively imposing a period of post-release of post-release supervision (PRS) on him to follow his supervision (PRS) on him to follow his judicially-imposed judicially-imposed sentence of imprisonment accrued, and sentence of imprisonment. Defendants moved to dismiss three-year limitations period began to run, at point when for failure to state a claim. state inmate's petition for writ of habeas corpus was granted. 42 U.S.C.A. § 1983.

Holdings: The District Court, David G. Larimer, J., held that: [3] Civil Rights 78 1376(7)

(1) two of inmate's claims were untimely, and 78 Civil Rights (2) defendants, in their personal capacities, were entitled to qualified immunity. 78III Federal Remedies in General 78k1372 Privilege or Immunity; Good Faith and Motion granted. Probable Cause 78k1376 Government Agencies and Officers

West Headnotes 78k1376(7) k. Prisons, jails, and their officers; parole and probation officers. Most Cited Cases [1] Federal Civil Procedure 170A 1825 Department of Correctional Services (DOCS) employees or officials, in their personal capacities, were 170A Federal Civil Procedure entitled to qualified immunity from state inmate's § 1983 claims, alleging defendants violated inmate's constitutional 170AXI Dismissal rights by administratively imposing a period of 170AXI(B) Involuntary Dismissal post-release supervision (PRS) on him to follow his 170AXI(B)5 Proceedings judicially-imposed sentence of imprisonment; although 170Ak1825 k. Motion and proceedings unconstitutionality and unlawfulness of practice of thereon. Most Cited Cases administratively mandating PRS was presently clear, it was not so prior to when state Court of Appeals held that pursuant to Rule 12(b)(6) of the Federal Rules of Civil state law barred DOCS from adding term of PRS onto Procedure. Plaintiff has not responded to the motion.FN1 sentence in absence of pronouncement of such by sentencing judge. 42 U.S.C.A. § 1983. DISCUSSION [4] Constitutional Law 92 4838 [1] Plaintiff's failure to oppose the motion to dismiss does not relieve the Court of its obligation to consider the 92 Constitutional Law merits of plaintiff's claims. "If a complaint is sufficient to state a claim on which relief can be granted, the plaintiff's 92XXVII Due Process failure to respond to a Rule 12(b)(6) motion does not 92XXVII(H) Criminal Law warrant dismissal." McCall v. Pataki, 232 F.3d 321, 322 92XXVII(H)12 Other Particular Issues and (2d Cir.2000). Plaintiff's failure to respond to the motion Applications notwithstanding, then, the Court must determine whether, 92k4838 k. Parole. Most Cited Cases "accept[ing] the allegations contained in the complaint as Pardon and Parole 284 46 true, and draw[ing] all reasonable inferences in favor of the non-movant," plaintiff has stated a facially valid claim. 284 Pardon and Parole Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir.1994). In undertaking that analysis, the Court employs the now 284II Parole well-known standards set forth in Bell Atlantic Corp. v.

284k45 Authority or Duty to Grant Parole or Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 Parole Consideration (2007), and Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 284k46 k. Parole as right or privilege. Most 1937, 173 L.Ed.2d 868 (2009), under which "a formulaic Cited Cases recitation of the elements of a cause of action will not do.

New York's parole scheme is not one that creates in Factual allegations must be enough to raise a right to relief any prisoner a legitimate expectancy of release, and thus above the speculative level." Twombly, 550 U.S. at 555, plaintiffs have no liberty interest in parole, and the 127 S.Ct. 1955. protections of the Due Process Clause are inapplicable. Plaintiff alleges that he was released from prison in U.S.C.A. Const.Amend. 14. October 2006, having at that point "served 6/7ths of his nine years sentence." Complaint ¶ 10. He further alleges Leon C. Bloom, Jr., Altona, NY, pro se. that his maximum determinate sentence expired in October 2007, but that in January 2008, DOCS re-imprisoned him J. Richard Benitez, NYS Attorney General's Office, for violating the conditions of his PRS. Rochester, NY, for Defendant.

Plaintiff sought relief in state court by means of a

DECISION AND ORDER petition for a writ of habeas corpus. In April 2008, a state court judge granted plaintiff's application, ordered that the DAVID G. LARIMER, District Judge. PRS imposed on plaintiff by DOCS be vacated, and that *1 Plaintiff, Leon C. Bloom, appearing pro se, plaintiff be released from custody. Plaintiff was released commenced this action under 42 U.S.C. § 1983. Plaintiff, on April 3, 2008, and DOCS vacated the remaining an inmate in the custody of the New York State portion of his five-year term of PRS.

Department of Correctional Services ("DOCS"), alleges that the defendants, all of whom at all relevant times, were In June 2010, plaintiff was convicted at trial of grand DOCS employees or officials, have violated his larceny in the fourth degree. He alleges that his constitutional rights by administratively imposing a period indeterminate sentence of two to four years was based in of post-release supervision ("PRS") on plaintiff to follow part on his alleged 2008 PRS violation, and that he was his judicially-imposed sentence of imprisonment. denied early release because of the PRS violation. Plaintiff

Defendants have moved to dismiss the complaint alleges that DOCS has since removed the information concerning the PRS violation from his file, although his sentence on the grand larceny charge remains in place, and [3] In addition, to the extent that plaintiff's claims are at the time that he filed the complaint in this action in May brought against defendants in their individual capacities, 2011, plaintiff was still incarcerated pursuant to that defendants are entitled to qualified immunity. In a similar larceny sentence. case, this Court has held that "[a]lthough the unconstitutionality and/or unlawfulness of defendants' *2 Based on these allegations, plaintiff asserts three practice of administratively mandating PRS may be clear causes of action. The first alleges that by imposing a term today, it was manifestly not so prior to April 2008," when of PRS, defendants violated plaintiff's constitutional the New York Court of Appeals held in Garner v. New rights. In support of that claim, plaintiff cites Earley v. York State DOCS, 10 N.Y.3d 358, 859 N.Y.S.2d 590, 889 Murray, 451 F.3d 71 (2d Cir.2006), cert. denied, 551 U.S. N.E.2d 467 (2008), and in People v. Sparber, 10 N.Y.3d 1159, 127 S.Ct. 3014, 168 L.Ed.2d 752 (2007), in which 457, 859 N.Y.S.2d 582, 889 N.E.2d 459 (2008), that state the Second Circuit held that a term of PRS was not law barred DOCS from adding a term of PRS onto a enforceable unless it had been pronounced by the defendant's sentence in the absence of a pronouncement sentencing judge on the record. for such by the sentencing judge. "It is these decisions-and not Earley-which courts in the Second In his second cause of action, plaintiff alleges that his Circuit have consistently understood to have effected the "unlawful re-imprisonment ... past the maximum change in the law, and established the temporal boundary expiration date of his determinate sentence" violated his of qualified immunity for DOCS officials alleged to have constitutional rights. Plaintiff's third cause of action asserts administratively imposed PRS." Vincent v. Yelich, 812 that defendants violated his rights "[b]y failing to remove F.Supp.2d 276, 281 (W.D.N.Y.2011). Since plaintiff's alleged PRS violations from [his] record" after the state term of PRS was imposed prior to the issuance of those court granted plaintiff's habeas corpus application in April 2008 decisions by the Court of Appeals, defendants are 2008. protected by qualified immunity.

[2] Plaintiff's first two causes of action must be *3 [4] Plaintiff's third cause of action, which arises dismissed as time-barred. "[C]courts in this circuit have out of denial of his application for early release with uniformly held that pursuant to Heck v. Humphrey [, 512 respect to the sentence imposed on him in 2010 for his U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994),] the grand larceny conviction, fails to state a cognizable claim. claims of plaintiffs [arising out of the administrative "New York's parole scheme 'is not one that creates in any imposition of PRS] do not accrue until the underlying prisoner a legitimate expectancy of release,' and thus sentence is invalidated, or, in this case, until [plaintiff's] 'plaintiffs have no liberty interest in parole, and the petition for writ of habeas corpus was granted." protections of the Due Process Clause are inapplicable.' " Albergottie v. New York City, No. 08 Civ. 8331, 2011 WL Duemmel v. Fischer, 368 Fed.Appx. 180, 182 (2d 519296, at *4 (S.D.N.Y. Feb. 15, 2011) (citing cases). See Cir.2010) (quoting Barna v. Travis, 239 F.3d 169, 171 (2d Heck, 512 U.S. at 489--90, 114 S.Ct. 2364 ("[A] § 1983 Cir.2001)). See also Fifield v. Eaton, 669 F.Supp.2d 294, cause of action for damages attributable to an 296--98 (W.D.N.Y.2009) (granting motion to dismiss unconstitutional conviction or sentence does not accrue inmate's claim that he was denied parole opportunities due until the conviction or sentence has been invalidated"). to his refusal to participate in SOP because inmate had no Since plaintiff's habeas petition was granted in April 2008, liberty interest in parole, conditional release, discretionary his complaint, which was filed in this Court in May 2011, good time credits, or choosing his programming); see also is untimely under the three-year statute of limitations Kneitel v. Goord, No. 9:05--cv--30, 2008 WL 2485061, at applicable to § 1983 claims. See Palmer v. Stuart, 274 *5 (N.D.N.Y. June 18, 2008) ("As per any potential Fed.Appx. 58, 58 (2d Cir.2008); McKithen v. Brown, 481 liberty interest created by statute or regulations in the State F.3d 89, 100 n. 12 (2d Cir.2007), cert. denied, 552 U.S. of New York, the governing statute clearly states that 1179, 128 S.Ct. 1218, 170 L.Ed.2d 59 (2008). '[p]articipation in a temporary release program shall be a privilege. Nothing contained in this article may be construed to confer upon any inmate the right to participate ... in a temporary release program' ") (quoting N.Y. Correct. L. § 855(9)). Cf. Friedl v. City of New York, 210 F.3d 79, 84 (2d Cir.2000) ("Prisoners on work release have a liberty interest in continued participation in such programs") (emphases added).

Finally, to the extent that plaintiff sues defendants in their official capacities, his claims are barred by sovereign immunity. See Whitfield v. O'Connell, 09 Civ.1925, 2010 WL 1010060, at *4 (S.D.N.Y. Mar. 18, 2010) ("[B]ecause Section 1983 does not abrogate a state's sovereign immunity and the State of New York has not waived its immunity, claims against DOCS for both monetary and injunctive relief are barred under the Eleventh Amendment") (citations omitted), aff'd, 402 Fed.Appx. 563 (2d Cir.2010), cert. denied, ------ U.S. --------, 131 S.Ct. 2132, 179 L.Ed.2d 920 (2011); Smith v. Paterson, No. 08 Civ. 3313, 2010 WL 4359225, at *3 (S.D.N.Y. Nov. 3, 2010) ("Neither the fact that individuals and not the state are named as defendants in this action, nor the fact plaintiffs characterize the relief sought as equitable, overcomes the Eleventh Amendment bar") (citing Edelman v. Jordan, 415 U.S. 651, 666--668, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974)).


Defendants' motion to dismiss the complaint (Dkt. # 6) is granted, and the complaint is dismissed.


FN1. The New York State Department of

Correctional Services internet Inmate Lookup website,, indicates that plaintiff was released from DOCS custody, to the custody of the New York State Division of Parole, on November 14, 2011.


Bloom v. Fischer --- F.Supp.2d ----, 2012 WL 45470 (W.D.N.Y.) END OF DOCUMENT

B io-Reference (collectively the "Bio-Reference

Defendants") move to dismiss the Amended Complaint pursuant to Rules 12(b)(1) and 12(b)(6) and, in the Only the Westlaw citation is currently available. alternative, they move for summary judgment. For the This decision was reviewed by West editorial staff following reasons, the State Defendants' and the and not assigned editorial enhancements. Bio-Reference Defendants' motions to dismiss the Amended Complaint are granted.

United States District Court, FN1. Numerous other individual State Defendants named and unnamed in the Amended S.D. New York. Complaint have not been served.

Those named John WHITFIELD, Plaintiff, Defendants are: DOCS Inmate Grievance v. Program Director Thomas G. Eagen, Drs. David Dr. David O'CONNELL, et al., Defendants. O'Connell, J, Perilli, Lester Wright, Jerome Fein, No. 09 Civ.1925(WHP). "Everett," Gerald Ginsberg, Heidi L. Fine, M.A. Halko, Andrew Shapiro, and F. Lancellotti; and March 18, 2010. Registered Nurses Philip Erickson, Michael Mr. John Whitfield, Woodbourne, NY, pro se. Michener, Colleen Bennett, Margaret Coloni, Ruth Gilligan, James McMahon, Robert Magee, Christina Chinwe Okereke, Esq., New York State Office Cathie Turta-Yohe, Carol Kunes, Baib of the Attorney General, New York, NY, for State Koziarski, Leacy Miller, D. Rick, Mana Jones, Defendants. Joyce Gutowski, Suzette Cainper, Elizabeth Hamawy, Roberta Jahn-Sissoko, and Valerie Joseph T. Pareres, Esq., Rachel Hilary Poritz, Esq., Jane Monroe. Silverson, Pareres & Lombardi, L.L.P., New York, NY, for Bio-Reference Defendants.



For purposes of these motions, this Court accepts the following allegations of the Amended Complaint as WILLIAM H. PAULEY III, District Judge. true.FN2 Whitfield has been in DOCS custody since June

*1 Plaintiff pro se John Whitfield ("W hitfield") 1988. At that time, he entered Downstate Correctional brings this federal civil rights action against the New York Facility ("Downstate") and has been housed over the last State Department of Correctional Services ("DOCS"), twenty years in at least six DOCS facilities around New various named and unnamed DOCS officials and medical York State. (Amended Verified Complaint dated Sept. 27, professionals at six New York State prisons in their 2009 ("Compl.") ¶ 59.) individual and official capacities, Bio-Reference FN2. In his Complaint, Whitfield references L a b o r a t o r i e s s / h / a M e d i l a b s L a b o r a t o r y grievances # SS-39628-04, # WB-14349-08 and ("Bio-Reference"), Robert L. Rush, Ph.D. ("Dr.Rush"), # WB14427-08, and five laboratory reports and unnamed Bio-Reference technologists. Defendants Dr. dated June 2, 1988, September 23, 1993, March N. Muthra ("Dr.Muthra"), Dr. Khee Tint Maw 22, 1995, August 30, 2001, and July 29, 2006. ("Dr.Maw"), Philip Williams ("Williams"), Brian Fischer

FN1 These documents, which Whitfield submitted ("Fischer"), and DOCS (collectively the "State with his opposition papers, are incorporated by Defendants") move to dismiss the Amended Complaint reference and properly considered on a motion to pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal dismiss. See, e.g., Sanchez v. Velez, No. 08 Civ. Rules of Civil Procedure. Defendants Dr. Rush and 1519(NRB), 2009 WL 2252319, at *1 & n. 1 When the pain persisted after completing the antibiotic (S.D.N.Y. July 24, 2009) (considering pro se treatment, he attended sick call and asked to see a doctor. plaintiff's grievances referenced in the complaint (Compl.¶ 56.) on motion to dismiss).

On August 13, 2008 W hitfield received copies of his Whitfield has complained to DOCS medical staff DOCS medical records that he had requested. (Compl.¶ about lower back, kidney, chest and lung pain for years. 56.) Whitfield claims they showed that "as far back as (Compl.¶¶ 58, 94, 101.) He asserts DOCS employees March 1995 there was clear documentary evidence of omitted many of his complaints from his Ambulatory bacteria in his urine." (Compl.¶ 56.) Specifically, a Health Records. (Compl.¶ 97.) On November 6, 2000, laboratory report from Attica Correctional Facility Whitfield received treatment for bacterial pneumonia from ("Attica") dated March 22, 1995 indicated a "few" Williams, a physician's assistant at Sing Sing Correctional bacteria in his urine (Pl. Aff. Ex. B: Laboratory report Facility ("Sing Sing"). (Compl.¶¶ 6, 74.) Whitfield alleges dated Mar. 22, 1995 ("Attica Lab Report")), yet according that although he experienced a severe allergic reaction to to Whitfield he did not receive antibiotics for that the prescribed antibiotic, Williams forced him to continue condition at Attica (Compl.¶ 56). Further, two laboratory taking the medication and refused to prescribe another. reports from Sing Sing dated August 30, 2001 and July 29, (Compl.¶ 100.) 2006 recorded "moderate" bacteria in his urine and abnormal hematology results such as low white blood cell On October 5, 2004, Whitfield filed grievance # and platelet counts. (Compl. ¶ 57; Pl. Aff. Ex. B: SS-39628-04 (the "Chest Pain Grievance") at Sing Sing Laboratory reports dated Aug. 30, 2001 and July 29, 2006 with the Inmate Grievance Resolution Committee (the ("Sing Sing Lab Reports").) The Sing Sing Lab Reports "IGRC") complaining that the Medical Department's were ordered by Drs. Muthra and Maw, physicians in Sing treatment of his ongoing chest pain was inadequate and Sing's Medical Department. (Compl. ¶¶ 4-5, 73; Sing Sing requesting to see an outside physician. (Compl. ¶ 54; Lab Reports.)

Plaintiff's Affidavit in Support of Opposition to Defendants' Motion to Dismiss and Motion for Summary The Attica Lab Report and the Sing Sing Lab Reports Judgment dated Aug. 4, 2009 ("Pl.Aff.") Ex. A: Inmate were issued by Bio-Reference, an independent laboratory Grievance Complaint dated Oct. 5, 2004.) On November that performed the testing of samples sent by requesting 3, 2004, Fischer, the Superintendent of Sing Sing, denied DOCS physicians who treated Whitfield. (Compl.¶ 10.) Whitfield's appeal from the IGRC's adverse decision. Dr. Rush is, and was at all relevant times, the Director of (Compl. ¶¶ 8, 78; Pl. Aff. Ex. A: Superintendent decision Bio-Reference. (Compl.¶ 11.) Whitfield alleges that on appeal dated Nov. 3, 2004.) Whitfield then appealed to Bio-Reference did not identify the specific bacteria found the Central Office Review Committee (the "CORC"), in his urine or conduct antibiotic sensitivity tests after which denied his grievance on December 1, 2004. urinalyses showed the presence of bacteria on March 22, (Compl.¶ 54.) 1995, August 20, 2001, and July 29, 2006. (Compl.¶¶ 79-80.) He further claims that the Bio-Reference *2 In June 2008, Whitfield was transferred from Sing Defendants instituted a policy discouraging Bio-Reference S in g to W o o d b o u r n e C o r r e c tio n a l F a c ility employees from using costly techniques like bacteria ("Woodbourne"). (Compl.¶¶ 1, 55.) On arrival, Whitfield identification and sensitivity tests on inmate samples. received a series of medical examinations, including blood (Compl.¶ 81.) and urine tests. (Compl.¶ 55.) On July 28, 2008, Woodbourne medical staff informed Whitfield that he had On August 18, 2008, Whitfield met with Dr. F. a urinary tract infection and prescribed a seven-day Lancellotti ("Dr.Lancellotti"), a physician in the antibiotic regimen. (Compl.¶ 55.) Whitfield alleges that Woodbourne Medical Department, to inquire about his while taking the prescribed antibiotic, his "long-standing abnormal test results. (Compl.¶¶ 39, 58.) Dr. Lancellotti chest and lung pain flared up substantially." (Compl.¶ 56.) conducted additional blood and urine tests to confirm the antibiotic treatment removed all bacteria, as well as an requesting treatment "by an outside physician" and the x-ray and an EKG. (Compl.¶ 58.) Whitfield alleges that removal of "the doctors who ignored [his] urinary tract despite his requests, Dr. Lancellotti refused to conduct infection." (Compl. ¶ 61; Pl. Aff. Ex. D: Inmate Grievance other tests to determine whether the bacterial infection Complaint dated Sept. 13, 2008.) Dr. Lancellotti damaged any organs. (Compl.¶ 58.) Whitfield was responded on September 25, 2008 by stating that "there subsequently informed that the blood and urine tests were was nothing currently wrong with [Whitfield's] health." negative for the presence of bacteria. (Compl.¶ 58.) (Compl.¶ 123.) The CORC denied Whitfield's grievance on appeal on November 19, 2008. (Compl. ¶ 54; Pl. Aff. *3 Whitfield then ordered a copy of his entire DOCS Ex. D: CORC Grievance Decision dated Nov. 19, 2008.) medical file. (Compl.¶ 59.) In reviewing that file on September 8, 2008, Whitfield learned that the first On November 17, 2008, Dr. Lancellotti performed a urinalysis conducted when he entered DOCS custody at laser surgical removal of a wart on Whitfield's tricep. Downstate in June 1988 indicated the presence of bacteria (Compl.¶ 63.) Whitfield alleges that Dr. Lancellotti treated in his urine. (Compl. ¶ 59; Pl. Aff. Ex. B: Laboratory him roughly during the procedure, left a deep gash and report dated June 2, 1988 ("Downstate Lab Report")) He portions of the wart behind, and failed to prescribe pain also discovered a laboratory report from Attica dated killers. (Compl.¶ 63.) Whitfield filed grievance # September 23, 1993 reporting a "marked decrease" in WB-14427-08 (the "Retaliation Grievance") on November platelet count. Whitfield claims that report "confirm [ed] 26, 2008 alleging Dr. Lancellotti acted in retaliation for the presence of a spreading bacterial infection." (Compl. the Infection Grievance. (Compl.¶¶ 63, 125.) The CORC ¶ 73; Affidavit of John Whitfield dated Nov. 5, 2009 Ex. denied the Retaliation Grievance on January 28, 2009. B: Laboratory report dated Sept. 23, 1993 ("Attica Lab (Compl.¶ 54.)

Report").) Both lab reports were issued by Bio-Reference.

On September 12, 2008, Whitfield again met with Dr. DISCUSSION Lancellotti and requested to see a specialist. (Compl.¶ 60.)

Dr. Lancellotti denied Whitfield's request for an I. Legal Standard ultrasound or an MRI of his kidneys but ordered an x-ray. *4 "A court faced with a motion to dismiss pursuant (Compl.¶ 60.) to both Rule 12(b)(1) and 12(b)(6) must decide the jurisdictional question first because a disposition of a Rule W hitfield alleges that Defendants "[a]t all times 12(b)(6) motion is a decision on the merits and, therefore, relevant ... acted pursuant to the policies ... promulgated an exercise of jurisdiction." Magee v. Nassau Cty. Med. by [DOCS] ." (Compl.¶ 47.) Based on the laboratory Ctr., 27 F.Supp.2d 154, 158 (E.D.N.Y.1998). When reports in his medical file and Defendants' inactions, considering a motion to dismiss under either Rule 12(b)(1) Whitfield claims that Defendants "entered into an or 12(b)(6), the Court accepts the material facts alleged in agreement to ignore [his] urinary tract infection" of twenty the complaint as true and draws all reasonable inferences years duration "to bring about his death." (Compl.¶¶ in the plaintiff's favor. Jaghory v. N.Y. State Dep't of 91-94.) Whitfield also claims that in furtherance of the Educ., 131 F.3d 326, 329 (2d Cir.1997). conspiracy, employees at the Greenhaven Correctional Nonetheless, "factual allegations must be enough to Facility ("Greenhaven") removed laboratory reports from raise a right of relief above the speculative level, on the his file in October 1991 and January 1993, and that Dr. assumption that all of the allegations in the complaint are Heidi L. Fine destroyed an x-ray taken November 6, 2000. true." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556, 127 (Compl.¶¶ 59, 95, 99.) He further alleges that Defendants' S.Ct. 1955, 167 L.Ed.2d 929 (2007) (requiring plaintiff to actions prevented him from discovering his true medical plead "enough fact [s] to raise a reasonable expectation condition until July 28, 2008. (Compl.¶ 106.) that discovery will reveal evidence of [his claim]"). "To survive a motion to dismiss, a complaint must contain On September 13, 2008, Whitfield filed grievance # sufficient factual matter, accepted as true, to 'state a claim WB-14349-08 (the "Infection Grievance") at Woodbourne to relief that is plausible on its face.' " Ashcroft v. Iqbal, --- U.S. ----, ----, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 against DOCS for monetary and injunctive relief are (2009) (quoting Twombly, 550 U.S. at 570). A court's dismissed. "consideration [on a motion to dismiss] is limited to facts III. Statute of Limitations: Defendants Williams & Fischer stated on the face of the complaint, in documents appended to the complaint or incorporated in the A. In General complaint by reference, and to matters of which judicial notice may be taken." Allen v. WestPoint-Pepperell, Inc., *5 "In section 1983 actions, the applicable limitations 945 F.2d 40, 44 (2d Cir.1991). period is found in the 'general or residual [state] statute

[of limitations] for personal injury actions.' " Pearl v. City A pro se litigant's submissions are held to "less of Long Beach, 296 F.3d 76, 79 (2d Cir.2002) (quoting stringent standards than [those] drafted by lawyers." Owens v. Okure, 488 U.S. 235, 249-50, 109 S.Ct. 573, Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 102 L.Ed.2d 594 (1989)) (alterations in original). In New L.Ed.2d 652 (1972). Courts must "liberally construe York, the applicable statute of limitations is three years. pleadings and briefs submitted by pro se litigants, reading N.Y. C.P.L.R. § 214(5); see also Pearl, 296 F.3d at 79. such submissions 'to raise the strongest arguments they "For statute of limitations purposes, a pro se prisoner's suggest.' " Bertin v. United States, 478 F.3d 489, 491 (2d complaint is deemed filed on the date that the prisoner Cir.2007) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 turn[s] his complaint over to prison officials for transmittal (2d Cir.1994)). "These liberal pleading rules apply with to the court, not when the court actually receives it." particular stringency to complaints of civil rights Abbas v. Dixon, 480 F.3d 636, 638 & n. 1 (2d Cir.2007) violations." Phillip v. Univ. of Rochester, 316 F.2d 291, (internal quotation marks omitted). Because Whitfield 293-94 (2d Cir.2003). Nevertheless, the court need not delivered his original complaint to Woodbourne prison accept as true "conclusions of law or unwarranted authorities on September 23, 2008, his only actionable deductions of fact." First Nationwide Bank v. Gelt claims are those that accrued on or after September 23, Funding Corp., 27 F.3d 763, 771 (2d Cir.1994) (citations 2005. omitted).

"Federal law determines when a section 1983 cause of

II. Eleventh Amendment and Sovereign Immunity action accrues ... [which occurs] ... when the plaintiff knows or has reason to know of the injury which is the "Neither a state nor one of its agencies nor an official basis of his action." Pearl, 296 F.3d at 80 (internal of that agency sued in his or her official capacity is a quotation and citations omitted). "The cause of action 'person' under § 1983." Spencer v. Doe, 139 F.3d 107, accrues even though the full extent of the injury is not then 111 (2d Cir.1998); see also Will v. Mich. Dep't of State known or predictable." Wallace v. Kato, 549 U.S. 384, Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 391, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007). Likewise, (1989). "Therefore, state officials cannot be sued in their "[d]elay in discovering the cause of the injury does not official capacities for retrospective relief under section prevent the claim from accruing" because it is ' "discovery 1983." Huminski v. Corsones, 386 F.3d 116, 133 (2d of the injury, not discovery of the other elements of the Cir.2004) (citing Will, 491 U.S. at 71). Moreover, because claim, [that] starts the clock.' " Gonzalez v. Wright, 665 Section 1983 does not abrogate a state's sovereign F.Supp.2d 334, 348-49 (S.D.N.Y.2009) (quoting Rotella immunity, Quern v. Jordan, 440 U.S. 332, 341, 345, 99 v. Wood, 528 U.S. 549, 555, 120 S.Ct. 1075, 145 L.Ed.2d S.Ct. 1139, 59 L.Ed.2d 358 (1979), and the State of New 1047 (2000)). Moreover, "[t]he existence of a conspiracy York has not waived its immunity, claims against DOCS does not postpone the accrual of causes of action arising for both monetary and injunctive relief are barred under out of the conspirators' separate wrongs." Pinaud v. Cty. the Eleventh Amendment. Santiago v. N.Y. State Dep't of of Suffolk, 52 F.3d 1139, 1156 (2d Cir.1995).

Corr. Servs., 945 F.2d 25, 31-32 (2d Cir.1991).

Accordingly, Whitfield's § 1983 claims against the Whitfield alleges that Williams deliberately refused individual State Defendants in their official capacities and to treat his underlying urinary tract infection or prescribe an alternative antibiotic when treating his bacterial the underlying claim without first requiring the pneumonia on November 6, 2000. Whitfield claims exhaustion of administrative remedies" where "a Fischer denied his Chest Pain Grievance on November 3, claim ... [inter alia ] ... fails to state a claim upon 2004. Even if Whitfield could not have discovered the which relief can be granted." 42 U.S.C. § cause of his alleged injuries or the existence of the alleged 1997e(c)(2); see also McCoy v. Goord, 255 conspiracy until July 28, 2008, his claims against Williams F.Supp.2d 233, 252 (S.D.N.Y.2003). and Fischer both accrued well before September 23, 2005.

A. Deliberate Indifference to Serious Medical Needs

B. Tolling: Continuing Violation and Fraudulent Concealment To state a claim of inadequate medical treatment in violation of the Eighth Amendment, "a prisoner must "To assert a continuing violation for statute of allege acts or omissions sufficiently harmful to evidence limitations purposes," the plaintiff must allege (1) "an deliberate indifference to serious medical needs." Estelle ongoing policy of deliberate indifference to his or her v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d serious medical needs"; and (2) for each defendant, "some 251 (1976). The Eighth Amendment standard includes acts in furtherance of the policy within the relevant statute objective and subjective criteria: (1) "the deprivation of limitations period." Shomo v. City of N.Y., 579 F.3d alleged must be, objectively, sufficiently serious"; and (2) 176, 179, 182-84 (2d Cir.2009). To rely on the fraudulent "a prison official must have a sufficiently culpable state of concealment doctrine, a plaintiff must make mind[:] deliberate indifference to inmate health or safety." non-conclusory allegations of "a conspiracy or other Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, fraudulent wrong which precluded his possible discovery 128 L.Ed.2d 811 (1994). of the harms that he suffered." Pinaud, 52 F.3d at 1157; Under the objective element, an inmate must allege see also Shomo, 579 F.3d at 85 (plaintiff must allege "it his medical needs were "sufficiently serious," a standard would have been impossible for a reasonably prudent that "contemplates a condition of urgency, one that may person to learn about his or her cause of action" (emphasis produce death, degeneration, or extreme pain." Hathaway in original)). v. Coughlin, 37 F.3d 63, 66 (2d Cir.1994) (internal

*6 W hitfield does not claim that W illiams or Fischer quotations and citations omitted). However, a prisoner is participated in his treatment during the three years not required to allege that he "experiences pain that is at preceding the filing of this lawsuit. As for fraudulent the limit of human ability to bear, nor [must he allege] that concealment, the allegations in the Amended Complaint [his] condition will degenerate into a life-threatening one." acknowledge the possibility that Whitfield could have Brock v. Wright, 315 F.3d 158, 163 (2d Cir.2003). discovered his chronic urinary tract infection before July 28, 2008. First, Whitfield complained about his health The subjective element requires the prisoner to allege problems as far back as 2004. (Compl ¶ 54.) Moreover, "something more than mere negligence" yet "something when he requested access to his medical records, he less than acts or omissions for the very purpose of causing received them promptly. (See Compl ¶¶ 56, 59.) Whitfield harm or with knowledge that harm will result." Farmer, does not claim that any Defendant refused him access to 511 U.S. at 835; Weyant v. Okst, 101 F.3d 845, 856 (2d his medical file at any time. Accordingly, the claims Cir.1996). The defendant prison official must "know [ ] of against Williams and Fischer are time-barred and and disregard [ ] an excessive risk to inmate health or dismissed. safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of IV. Failure to State a ClaimFN3 serious harm exists and he must also draw the inference." Farmer, 511 U.S. at 837. "[M]ere medical malpractice is FN3. Although Defendants also move to dismiss not tantamount to deliberate indifference," unless "the on the ground that Whitfield failed to exhaust his malpractice involves culpable recklessness, i.e., ... a administrative remedies, "the court may dismiss conscious disregard of a substantial risk of serious harm."

Not Reported in F.Supp.2d, 2010 WL 1010060 (S.D.N.Y.)

(Cite as: 2010 WL 1010060 (S.D.N.Y.))

Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir.1998) a valid claim of medical mistreatment under the Eighth (quoting Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Amendment.").

Cir.1996)). "Because the Eighth Amendment is not a vehicle for bringing medical malpractice claims, nor a Whitfield's claims that Drs. O'Connell, Muthra and substitute for state tort law, not every lapse in prison Maw-who each ordered a single laboratory report-ignored medical care will rise to the level of a constitutional the presence of bacteria in his urine and failed to treat his violation." Smith v. Carpenter, 316 F.3d 178, 184 (2d alleged urinary tract infection are at most "isolated Cir.2003). omission[s] to act" which do "not support a claim under section 1983 absent special circumstances indicating an 1. Urinary Tract Infection evil intent, recklessness, or at least deliberate indifference

..." Avers v. Coughlin, 780 F.2d 205, 209 (2d Cir.1985) *7 The gravamen of the Amended Complaint is that (per curiam ). Even if, as Whitfield alleges, basic medical numerous named and unnamed medical personnel at six procedure required these Defendants to "take appropriate different prison facilities and at Bio-Reference ignored the additional steps" to determine the nature of the bacteria five laboratory reports indicating the presence of bacteria found, this is at most negligence, not deliberate in his urine and therefore failed to diagnose or treat his indifference. See Chance, 143 F.3d at 703. alleged urinary tract infection.FN4 This Court need not

decide whether Whitfield's alleged chronic urinary tract Whitfield further alleges that Drs. Fein, Everett, infection constituted a serious medical need because the Ginsberg, Fine and Halko, and no fewer than eighteen acts and omissions Whitfield alleges fail to rise to the level registered nurses ignored the laboratory reports when of deliberate indifference. treating him between January 1990 and July 2008.

FN4. A district court has the power to sua sponte Whitfield does not allege at what point in that mostly dismiss claims against nonmoving defendants for time-barred eighteen-year period he was examined or failure to state a claim, as long as the plaintiff has treated by any of these Defendants, under what been given an opportunity to be heard. See circumstances, or for what medical conditions. Because Thomas v. Scully, 943 F.2d 259, 260 (2d Whitfield does not "identif[y] the particular events giving Cir.1991). In this case, Whitfield has been heard rise to [his] claim[s]" against these Defendants, his both in his Amended Complaint-which this Court Amended Complaint fails to give them "fair notice of what in its discretion permitted him to file after the the claim is and the grounds upon which it rests." Boykin motions under consideration were filed-and in v. KeyCorp., 521 F.3d 202, 214-15 (2d Cir.2008). his papers in opposition to those motions.

Whitfield's claims against Dr. Lancellotti concerning "[A]lthough the provision of medical care by prison treatment for his urinary tract infection also fail as "mere officials is not discretionary, the type and amount of disagreement[s] over [ ] proper treatment [which] do [ ] medical treatment is discretionary." Perez v. Hawk, 302 not create a constitutional claim." Chance v. Armstrong, F.Supp.2d 9, 21 (E.D.N.Y.2004). "[D]isagreements over 143 F.3d 698, 703 (2d Cir.1998); see also Joyner v. medications, diagnostic techniques ..., forms of treatment, Greiner, 195 F.Supp.2d 500, 505 (S.D.N.Y.2002) or the need for specialists or the timing of their (physician's refusal to order an MRI not actionable under intervention, are not adequate grounds for a Section 1983 the Eighth Amendment). "So long as the treatment given claim. These issues implicate medical judgments and, at is adequate," as Dr. Lancellotti's was here, "the fact that a worst, negligence amounting to medical malpractice, but prisoner might prefer a different treatment does not give not the Eighth Amendment." Sonds v. St. Barnabas rise to an Eighth Amendment violation." Chance, 143 Hosp. Corr. Health Servs., 151 F.Supp.2d 303, 312 F.3d at 703. (S.D.N.Y.2001); see also Estelle, 429 U.S. at 106 ("[A] complaint that a physician has been negligent in *8 Finally, W hitfield fails to state a claim against the diagnosing or treating a medical condition does not state Bio-Reference Defendants. A laboratory's choice not to perform bacteria identification and antibiotic sensitivity Therefore, a § 1983 conspiracy claim "will stand only tests on blood and urine samples are medical judgments of insofar as the plaintiff can prove the sine qua non of a § the kind that cannot give rise to a constitutional claim. See 1983 action: the violation of a federal right." Singer, 63 Estelle, 429 U.S. at 107. F.3d at 119 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 150, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970) (one of Accordingly, this Court grants Defendants' motions to the necessary elements of a § 1983 action is "that the dismiss W hitfield's deliberate indifference to serious defendant has deprived [the plaintiff] of a right secured by medical needs claims arising from the treatment of his the 'Constitution and laws' of the United States")). Since urinary tract infection. Whitfield's deliberate indifference to serious medical needs claims fail, his claim of a conspiracy also falls. 2. Wart Removal FN5. "[A] § 1985(3) claim generally describes a conspiracy of two or more persons for the Whitfield alleges that Dr. Lancellotti inadequately purpose of depriving of another of equal performed a laser surgical removal of a wart and refused protection of the laws or equal privileges and to prescribe pain killers during post-operative recovery. immunities under the laws." Dixon v. City of Warts do not constitute a serious medical need under the Lawton, Okla., 898 F.2d 1443, 1447 (10th Eighth Amendment. See Page v. Scott, No. 07 Civ. Cir.1990). However, " § 1985(3) requires proof 287(BES)(VPC), 2009 WL 604922, at *6 (D.Nev. Feb. that a conspirator's action was motivated by a 17, 2009) (plantar warts are not a serious medical need). class-based, invidiously discriminatory animus; Moreover, the allegedly hostile and incomplete there is no such requirement under § 1983." performance of a laser surgical wart removal and refusal Dixon, 898 F.2d at 1447 (citing Griffin v. to prescribe pain medication thereafter does not constitute Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, deliberate indifference. See White v. Corrs. Med. Servs., 29 L.Ed.2d 338 (1971)).

No. 06 Civ. 680(SNL), 2006 WL 1391298, at *2 (E.D.Mo. May 19, 2006) (prisoner's allegations of "failure C. Retaliation to remove [his] warts entirely" and resulting pain "may be cognizable as a negligence or medical malpractice claim "[T]o survive a motion to dismiss a complaint, a under state law, [but] they are insufficient to sustain a plaintiff asserting First Amendment retaliation claims must constitutional violation"). Not surprisingly, this Court allege (1) that the speech or conduct at issue was could not find any decisions by courts in the Second protected, (2) that the defendant took adverse action Circuit concerning deliberate indifference claims as against the plaintiff, and (3) that there was a causal applied to non-venereal warts. Accordingly, this Court connection between the protected speech and the adverse dismisses Whitfield's deliberate indifference to serious action." Davis v. Goord, 320 F.3d 346, 352 (2d Cir.2003) medical needs claim concerning the wart removal with (internal quotation marks and citation omitted). It is well prejudice pursuant to Rule 12(b) (6). established that the filing of prison grievances is B. Conspiracy constitutionally protected conduct. See Graham v. Henderson, 89 F.3d 75, 80 (2d Cir.1996) ("retaliation To state a claim for "a § 1983 conspiracy, a plaintiff against a prisoner for pursuing a grievance violates the must [allege]:(1) an agreement between two or more state right to petition government for the redress of grievances actors ... (2) to act in concert to inflict an unconstitutional guaranteed by the First and Fourteenth Amendments"). injury; and (3) an overt act done in furtherance of that goal Nonetheless, "[c]courts properly approach prisoner causing damages." Pangburn v. Culbertson, 200 F.3d 65, retaliation claims with skepticism and particular care, 72 (2d Cir.1999).FN5 Because "Section 1983 is only a grant because virtually any adverse action taken against a of a right of action [,] the substantive right giving rise to prisoner by a prison official-even those otherwise not the action must come from another source." Singer v. rising to the level of a constitutional violation-can be Fulton Cty. Sheriff, 63 F.3d 110, 119 (2d Cir.1995). characterized as a constitutionally proscribed retaliatory act." Davis, 320 F.3d at 352; see also Williams v. Fisher, trial, the state claims should be dismissed as well.").

No. 02 Civ. 4558(LMM), 2003 WL 22170610, at *10 CONCLUSION (S.D.N.Y. Sept.18, 2003) ("because of the ease of fabricating a claim of retaliation, the Second Circuit For the foregoing reasons, the State Defendants' and requires the court to handle such claims with care"). the Bio-Reference Defendants' motions to dismiss the

*9 "[I]n the prison context [the Second Circuit has] Amended Complaint are granted. The Clerk of the Court defined 'adverse action' objectively, as retaliatory conduct shall terminate all pending motions and mark this case as 'that would deter a similarly situated individual of closed. ordinary firmness from exercising constitutional rights.' " SO ORDERED.

Gill v. Pidlypchak, 389 F.3d 379, 381 (2d Cir.2004) (emphasis in original and citation omitted). In considering S.D.N.Y.,2010. a prisoner retaliation claim, courts must bear in mind that "prisoners may be required to tolerate more ... than Whitfield v. O'Connell average citizens, before a [retaliatory] action taken against Not Reported in F.Supp.2d, 2010 WL 1010060 them is considered adverse." Davis, 320 F.3d at 353 (S.D.N.Y.) (internal quotation marks omitted); Young v. Strack, No. END OF DOCUMENT 05 Civ. 9764(WHP), 2007 WL 1575256, at *7 (S.D.N.Y. May 29, 2007).

Although courts in this district have recognized that a prison physician's retaliatory treatment may well constitute "adverse action," these cases involve the revocation of "necessary medical rehabilitative treatment," Williams, 2003 W L 22170610, at *11, or the denial of medical treatment for injuries later requiring surgery, Burton v. Lynch, --- F.Supp.2d ----, No. 08 Civ. 8791(LBS), 2009 WL 3286020, at *9, 11 (S.D.N.Y. Oct. 13, 2009). That Dr. Lancellotti may have performed a laser wart removal without the most pleasant of bedside manners, or that he may have left part of the wart behind and declined to prescribe pain killers falls far short of "adverse action" which would chill the speech of a similarly situated individual of ordinary firmness. Dr. Lancellotti's alleged actions are "simply de minimis and therefore ...

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