The opinion of the court was delivered by: Thomas J. Mcavoy Senior United States District Judge
Plaintiff Ariel Paulino commenced this action by filing a civil rights complaint and in forma pauperis application. Dkt. No. 1 ("Compl."); Dkt. No. 2 ("IFP Application"). By Decision and Order filed May 14, 2012, plaintiff was granted leave to proceed in forma pauperis and, following review of his complaint pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b), his complaint was dismissed, but plaintiff was granted leave to amend. Dkt. No. 7 (the "May Order"). Presently before the Court for review is a motion for reconsideration of the May Order. Dkt. No. 9. Plaintiff has also submitted an amended complaint. Dkt. No. 10 (Am. Compl.). For the reasons set forth below, the motion for reconsideration is denied; some of the claims in the amended complaint are dismissed; and the remaining claims in the amended complaint are accepted for filing.
A. The Original Complaint and the May Order
Upon review, and construing plaintiff's complaint liberally, plaintiff's complaint was found to assert the following claims: (1) defendants Commissioner Fischer ("Commissioner") of the New York State Department of Corrections and Community Supervision ("DOCCS") and the Deputy Commissioner ("Deputy Commissioner") of DOCCS were deliberately indifferent to the wrongdoing of their employees; (2) defendant John Doe # 3 issued plaintiff a disciplinary ticket which was false, and not based upon sufficient evidence, and defendants Nunez, Sgt. John Doe # 2, and defendant John Doe # 1, Superintendent of Cape Vincent C.F. ("Superintendent"), knew or should have known that the disciplinary ticket issued by John Doe # 3 was false and backed by no evidence; (3) plaintiff was denied due process and equal protection because the misbehavior report issued to him by John Doe # 3 was not signed under penalty of perjury, and at the subsequent disciplinary hearing, defendant Knapp (the hearing officer) did not require the witnesses for the correctional facility to testify under penalty of perjury; (4) plaintiff was denied due process and equal protection because his visitor was intimidated into implicating plaintiff for her marijuana possession and later harassed while testifying at plaintiff's disciplinary hearing; (5) plaintiff's phone calls were recorded, without a warrant; (6) defendants failed to conduct an adequate investigation into the charges brought against plaintiff; (7) defendants conspired to bring false charges against plaintiff by threatening his witness to either testify against him or face her own criminal charges; (8) defendant John Doe # 1, Superintendent, failed to intervene to correct the alleged wrongdoing by his employees; and (9) defendant Knapp denied plaintiff due process at his disciplinary hearing. May Order at 4-5.
The Court found that any amendment of the following claims would be futile, and thus dismissed them with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b): (1) plaintiff's claims against defendants John Doe # 3, Nunez, Sgt. John Doe # 2, and John Doe # 1 (Superintendent) relating to the issuance of an allegedly false (and unsworn) misbehavior report; and (2) plaintiff's claim that the defendants failed to adequately investigate the charges lodged against plaintiff. May Order at 17. Additionally, defendant Nunez was dismissed with prejudice. Id. The remaining claims set forth in the complaint were dismissed without prejudice to plaintiff filing an amended complaint. Id.
B. Motion for Reconsideration
A court may justifiably reconsider its previous ruling if: (1) there is an intervening change in the controlling law; (2) new evidence not previously available comes to light; or (3) it becomes necessary to remedy a clear error of law or to prevent manifest injustice. Delaney v. Selsky, 899 F. Supp. 923, 925 (N.Y.N.D. 1995) (citing Doe v. New York City Dep't of Soc. Servs., 709 F.2d 782, 789 (2d Cir.), cert. denied, 464 U.S. 864 (1983)). The standard for granting a motion for reconsideration is strict. Shrader v. CSX Transportation, Inc., 70 F.3d 255, 257 (2d Cir. 1995). A motion for reconsideration "should not be granted where the moving party seeks solely to relitigate an issue already decided." Id. Furthermore, a motion for reconsideration is not to be used for "presenting the case under new theories, securing a rehearing on the merits, or otherwise taking a 'second bite at the apple.'" Sequa Corp. v. GBJ Corp., 156 F.3d 136, 144 (2d Cir. 1998).
In his motion for reconsideration, plaintiff does not suggest that there has been either an intervening change in the controlling law or that he has discovered new evidence, thus it appears that he seeks reconsideration to remedy a clear error of law or to prevent a manifest injustice. Among other things, plaintiff claims that the May Order was incorrect to the extent that it found that (1) the issuance of a false misbehavior report does not state a constitutional claim and (2) plaintiff's complaint had failed to include sufficient allegations to plausibly suggest that the supervisory defendants were responsible for the wrongdoing which he alleged in his complaint. See generally Dkt. No. 9.
Plaintiff argues that a false misbehavior report can amount to a constitutional violation because (1) it results in immediate adverse consequences to the inmate and (2) when written to harass, annoy or intimidate the inmate, it violates New York State regulations. Dkt. No. 9 at 1-2, 6-7. "[T]he only way that false accusations contained in a misbehavior report can rise to the level of a constitutional violation is when there has been more such as 'retaliation against the prisoner for exercising a constitutional right.'" Cusamano v. Sobek, 604 F. Supp. 2d 416, 471-72 (N.D.N.Y. 2009) (quoting Boddie v. Schnieder, 105 F.3d 857, 862 (2d Cir. 1997)).*fn1 The complaint is not read to assert a retaliation claim against Sgt. John Doe. Moreover, a violation of state laws or regulations does not rise to the level of a constitutional violation. See Hyman v. Holder, No. 96 Civ. 7748, 2001 WL 262665, at *6 (S.D.N.Y. Mar. 15, 2001). (Regardless of any alleged violations of internal regulations, the law is settled that the failure to follow a DOCS Directive or prison regulation does not give rise to a federal constitutional claim.) Plaintiff has not stated a basis for reconsideration with respect to the issuance of an alleged false misbehavior report.
Plaintiff also argues that "constructive notice" through receipt of appeals, letters, and grievances, can impose liability upon a supervisor for the wrongdoing of his or her subordinates. Dkt. No. 9 at 3. Plaintiff thus asserts that the May Order was incorrect to the extent that the supervisory defendants were dismissed. Id. at 3-6. Although plaintiff is correct that, under certain circumstances a supervisor can be found liable for the wrongdoing of subordinates if the supervisor learned of the wrongdoing through reports, appeals, or otherwise, and failed to take corrective action, plaintiff failed to allege sufficient facts in his original complaint to impose such liability upon the supervisory defendants. Therefore, plaintiff's motion for reconsideration fails in this regard.
The Court has thoroughly reviewed the remainder of plaintiff's motion for reconsideration and finds that plaintiff presents no basis for reconsideration of the May Order. Thus, plaintiff's motion for ...