The opinion of the court was delivered by: Andrew T. Baxter, U.S. Magistrate Judge
This matter has been referred to me for Report and Recommendation, pursuant to 28 U.S.C. § 636(b) and Local Rules N.D.N.Y. 72.3(c), by the Honorable Gary L. Sharpe, Chief United States District Judge.
In this amended civil rights complaint, plaintiff alleges that
defendants improperly retained plaintiff in administrative segregation
at Shawangunk Correctional Facility without due process*fn1
for "over" five hundred and seventy five days. (Amended
Complaint ("AC") ¶ 9). Plaintiff claims that this lengthy stay in
administrative segregation ("Ad Seg") violated his First, Fourth, and
Eighth Amendment rights, and he also claims that he has been denied
Equal Protection. (AC at pp.24-27).*fn2 Plaintiff
seeks injunctive and substantial monetary relief.
Presently before the court is defendant's motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) and (b)(6). (Dkt. No. 19). For the following reasons, this court will recommend granting the motion in part and denying it in part.
I. Facts and Procedural History
Plaintiff alleges that when he was incarcerated at Downstate Correctional Facility ("Downstate") in 2009,*fn3 he was allowed to be in General Population. (AC ¶ 1). Plaintiff states that he was in General Population at Downstate for approximately one and one half months before he was transferred to Shawangunk Correctional Facility ("Shawangunk"). Upon his transfer to Shawangunk, he was told that he would be placed in Ad Seg. Plaintiff claims that although he had a hearing prior to Ad Seg placement, he was not allowed to introduce any exhibits or letters of reference in an effort to prove that he should not be placed in restrictive confinement. (AC ¶¶ 6, 8).
Plaintiff states that he maintained "an outstanding disciplinary record," and he was given no reason for his continued confinement in Ad Seg. (AC ¶¶ 8-9). However, plaintiff also states that he was placed in Ad Seg "as a result of the people plaintiff knew or knows on the outside . . . ." (AC ¶ 10) (emphasis in original). Plaintiff also states that the defendants' belief that plaintiff is "a threat to its [sic] security or other inmates" is "insane" and "extreme." (Id.)
Plaintiff states that his conditions in Ad Seg have been unconstitutionally harsh. He was denied use of the telephone and denied access to his "spiritual leader" when plaintiff's father died. Plaintiff states that his right to visitation, association, and possession of personal property were limited, and his commissary and package privileges were limited. (AC ¶¶ 12-13). Plaintiff alleges that he had the same restrictions placed upon him as inmates who were in the Special Housing Unit ("SHU") for disciplinary violations. He was shackled when he was escorted to the showers, and had no contact with his "peers." (AC ¶ 14).
Plaintiff filed this action on July 11, 2011, naming 19 defendants, including the State of New York and several John/Jane Does. (Dkt. No. 1). On October 12, 2011, Chief Judge Sharpe ordered plaintiff to file an amended complaint or risk dismissal of the action based on his failure to state a claim against any of the named defendants. (Dkt. No. 7). On November 9, 2011, plaintiff filed this amended complaint. (Dkt. No. 8). Chief Judge Sharpe reviewed the amended complaint, finding that the amended complaint "consists of a copy of the original complaint, to which Bowens appended 'an explanation as to why each defendant is being sued.'" (Dkt. No. 10 at 3) (citing AC at 44).
Although plaintiff included an "explanation" in his amended complaint, he still failed to state a claim with respect to several defendants, including the John/Jane Doe defendants. (Dkt. No. 10 at 3-4). The court found that the plaintiff's "explanation" with respect to these individuals was "wholly conclusory" and did not suffice to suggest personal involvement. (Dkt. No. 10 at 4). The court dismissed defendants Beilein, Pingotti, Capone, Salo, Boll, and Annucci without prejudice. (Id.) Chief Judge Sharpe also dismissed claims against the Department of Corrections and Community Supervision ("DOCCS") and the State of New York with prejudice. (Dkt. No. 10 at 5). Chief Judge Sharpe dismissed any individual claims for damages against defendant Fischer, but allowed the case to proceed on the issue of prospective injunctive relief as against defendant Fischer in his official capacity. (Id.)
Finally, Chief Judge Sharpe allowed the plaintiff's damage action to proceed against defendants Joseph T. Smith, Albert Prack, and Lucien J. LeClaire, Jr. individually. (Dkt. No. 10 at 6-7). These remaining defendants have filed the motion to dismiss. (Dkt. No. 19).
A. Legal Standards for Fed. R. Civ. P. 12(b)(6)
To survive dismissal for failure to state a claim, the complaint must contain sufficient factual matter, accepted as true, to state a claim that is "plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "[T]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements," do not suffice. Id. (citing Bell Atl. Corp., 550 U.S. at 555). Plaintiff's factual allegations must also be sufficient to give the defendant "'fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atl. Corp., 550 U.S. at 555 (citation omitted).
When ruling on a motion to dismiss, the court must accept as true all of the factual allegations contained in the complaint and draw all reasonable inferences in the non-movant's favor. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citations omitted); Int'l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 71 (2d Cir. 1995). The court must heed its particular obligation to treat pro se pleadings with liberality. Phillips v. Girdich, 408 F.3d 124, 128 (2d Cir. 2005); Tapia-Ortiz v. Doe, 171 F.3d 150, 152 (2d Cir. 1999) (per curiam).
B. Legal Standards for Fed. R. Civ. P. 12(b)(1)
A motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) is addressed to the court's jurisdiction. The standard of review for a motion under Rule 12(b)(1) is "'substantively identical'" to the standard under Rule 12(b)(6). Kaufman v. All Seasons Marine Works, Inc., No. 3:11-CV-1874, 2012 WL 4928862, at *2 (D. Conn. Oct. 16, 2012) (quoting Lerner v. Fleet Bank, N.A., 318 F.3d 113, 128 (2d Cir. 2003)). One difference in the two rules is that in a motion under Rule 12(b)(1), the party asserting the court's jurisdiction has the burden of proof to demonstrate that subject matter jurisdiction exists, while in a motion under Rule 12(b)(6), the movant bears the burden of proof. Id.
Another difference between the two rules is that while the court's review of a motion under Rule 12(b)(6) is generally limited to the four corners of the complaint with some exceptions, in a motion under Rule 12(b)(1), the court may resolve factual issues by reference to evidence outside the pleadings, including affidavits. Id. at *3 (quoting State Employees Bargaining Agent Coal. v. Rowland, 494 F.3d 71, 77 n.4 (2d Cir. 2007)).
In his amended complaint, plaintiff requested that defendants be ordered to release him from Ad Seg. In the part of their motion to dismiss addressed to lack of subject matter jurisdiction, defendants state that plaintiff has now been released from Ad Seg, and has been transferred to the Assessment and Program Preparation Unit ("APPU") at Clinton Correctional Facility. In support of this argument, defendants have submitted the declaration of James Facteau, Corrections Captain at Clinton Correctional Facility. (Dkt. No. 19-2; Facteau Decl. ¶ 3). Captain Facteau states that on December 6, 2011, defendant Smith issued an order, releasing plaintiff from Ad Seg. (Id. & Ex. A). On December 19, 2011, plaintiff was transferred to Clinton's APPU, where he has been incarcerated since that time. (Id. ¶¶ 4-5 & Ex. B). The APPU is a housing unit at Clinton which is designed to house high profile, easily targeted, or victim-prone inmates. (Id. ¶ 6). Captain Facteau states that APPU inmates have all the privileges accorded to inmates in general population, including all the privileges about which plaintiff is complaining in this amended complaint. (Id. ¶ 7).
Exhibit A to the Facteau Declaration is Superintendent Smith's order releasing plaintiff from Ad Seg, finding that his "status in Administrative Segregation is no longer warranted." (Facteau Decl. Ex. A). The first part of the order indicates the reason that plaintiff was initially placed in Ad Seg, but then states that plaintiff's behavior was "problem free," and his "attitude towards staff continues to be positive."
(Id.) Exhibit B shows that plaintiff was transferred to Clinton's APPU on December 19, 2011. Thus, it is clear that plaintiff has not been ...