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Delville Bennett v. Officer Wesley

April 29, 2013


The opinion of the court was delivered by: Jesse M. Furman, United States District Judge:


PlaintiffDelville Bennett brings this action, pro se, against Defendants Raymond S. Koskowski, Jr., former Deputy Superintendant of Green Haven Correctional Facility ("Green Haven"), and Green Haven correction officers Mark Wesley and James Thorpe, pursuant to Title 42, United States Code, Section 1983.*fn1 In his Complaint, Bennett alleges that Defendants violated his constitutional rights under the Eighth Amendment while he was incarcerated at Green Haven. Defendants have moved, pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, for dismissal of the Complaint in its entirety because (1) Defendants are protected by Eleventh Amendment immunity, (2) Plaintiff failed to exhaust his administrative remedies as required by the Prison Litigation Reform Act of 1995, (3) Plaintiff failed to state valid constitutional claims, (4) there was no personal involvement by Koskowski, and (5) Koskowski is entitled to qualified immunity. (Docket No. 44). For the reasons stated below, Plaintiff's claims for monetary damages against Defendants in their official capacities are dismissed with prejudice as barred by the Eleventh Amendment. Defendants' motion to dismiss for failure to exhaust is converted into a motion for summary judgment and is granted.


The following facts are taken from the Complaint and evidence submitted by the parties. The Court assumes these facts to be true for the purpose of deciding this motion and construes them in the light most favorable to Plaintiff. See, e.g., LaFaro v. N.Y. Cardiothoracic Grp., PLLC, 570 F.3d 471, 475 (2d Cir. 2009). Bennett is a New York State prison inmate currently incarcerated at the Franklin Correctional Facility in Malone, New York. (Docket No. 59). At all times relevant to this action, however, Plaintiff was incarcerated at Green Haven.

Plaintiff's Complaint alleges two sets of incidents in which Defendants harassed, assaulted, threatened, and retaliated against him, subjecting him to cruel and unusual punishment in violation of his constitutional rights. (Docket No. 2). First, Plaintiff alleges that on May 25, 2010, while he was outside of his cell, Officer Wesley pushed him up against a wall and frisked him. (Compl. ¶¶ 22-23). Wesley removed items from Plaintiff's pockets and threw them on the floor, placed his hands between Plaintiff's legs, and grabbed and squeezed Plaintiff's testicles, causing Plaintiff to cry out in pain. (Id. ¶¶ 22-24). Wesley then slammed Plaintiff's back against the wall, squeezed his throat, blew cigarette smoke into his face, and threatened him with future assault if Wesley saw Plaintiff "looking at any other females." (Id. ¶¶ 25-26). According to the Complaint, Officer Thorpe then pushed Plaintiff back into his cell and both officers confiscated Plaintiff's property. (Id. ¶ 26). Plaintiff subsequently requested an "Emergency Sick-Call," but Wesley threatened Plaintiff that reporting to "Sick-Call" would not be in his "best interest." (Id. ¶ 27). Plaintiff contends that for approximately one week following this incident, Wesley and Thorpe harassed him and denied him medical attention, "call-outs" to Green Haven's law library, as well as meals and recreational periods. (Id. ¶ 28). Plaintiff further alleges that he was not allowed to leave his cell for five to seven days after the incident. (Id. ¶ 29).

On May 27, 2010, Plaintiff spoke with Koskowski concerning the May 25th incident and the alleged harassment. (Id. ¶ 30). Koskowski told Plaintiff to send him a letter explaining what happened, which Plaintiff did on May 31, 2010. (Id.). Plaintiff contends that he never received a response to his letter, although he states that the period of harassment ceased on June 1, 2010. (Id. ¶¶ 30, 42).

The second set of incidents occurred in mid-July 2010. On July 7, 2010, after experiencing conflict with his cellmate, Plaintiff alleges that he sent a confidential communication to Green Haven's Movement and Control Officer, requesting a change in cell. (Id. ¶ 31). On or around July 12, 2010, Wesley read Plaintiff's letter aloud to his cellmate and then disconnected the electricity in Plaintiff's cell. (Id. ¶¶ 32-33). Subsequently, Plaintiff sent a letter to Koskowski requesting a complete investigation as to why the confidential communication was disclosed. (Id. ¶ 35). Plaintiff alleges that Koskowski never responded in writing or interviewed Plaintiff regarding this second incident. (Id.).

Plaintiff commenced this action on November 28, 2011. (Docket No. 2). Plaintiff seeks a declaratory judgment that Defendants violated his constitutional rights. He also seeks compensatory and punitive damages. (Compl. Prayer for Relief). On December 21, 2012, Defendants filed the instant motion. (Docket No. 44).


A. Standard of Review

In deciding a motion to dismiss for failure to state a claim under Rule 12(b)(6), a court ordinarily "must confine itself to the four corners of the complaint." Staehr v. Hartford Fin. Servs. Grp., Inc., 547 F.3d 406, 425 (2d Cir. 2008). Where, as in this case, "exhaustion of administrative remedies is a prerequisite to bringing suit, a court may take judicial notice of the records and reports of the relevant administrative bodies, as well as the facts set forth therein." Wilson v. N.Y.C. Police Dep't, No. 09 Civ. 2632 (PAC) (HBP), 2011 WL 1215031, at *6 (S.D.N.Y. Feb. 4), report and recommendation adopted, 2011 WL 1215735 (S.D.N.Y. Mar. 25, 2011) (citing Smart v. Goord, 441 F. Supp. 2d 631, 637-38 (S.D.N.Y. 2006), reconsidered in part, No. 04 Civ. 8850 (RWS), 2008 WL 591230 (S.D.N.Y. Mar. 3, 2008)).

When a party submits additional materials for the court to consider, the court has discretion to either disregard the materials outside the pleadings or, after giving the parties "a reasonable opportunity to present all the material that is pertinent to the motion," convert the motion to dismiss into one for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 12(d); Sahu v. Union Carbide Corp., 548 F.3d 59, 66 n.1 (2d Cir. 2008). Exercise of such discretion will turn on "whether or not the proffered material, and the resulting conversion from the Rule 12(b)(6) to the Rule 56 procedure, is likely to facilitate the disposition of the action." Stephens v. Bayview Nursing & Rehab. Ctr., No. 07 Civ. 596 (JFB) (AKT), 2008 WL 728896, at *2 (E.D.N.Y. Mar. 17, 2008) (internal quotation marks omitted).

Here, the Court concludes in its discretion that conversion of Defendants' motion to dismiss is proper. Specifically, Defendants expressly referenced and submitted materials outside of the pleadings for the Court's consideration. Defendants gave notice to Plaintiff that the Court might treat Defendants' Rule 12(b)(6) motion as a motion for summary judgment, and informed Plaintiff that if he did not respond "by filing sworn affidavits and other papers as required by Rule 56(e)," his "COMPLAINT MAY BE DISMISSED." (See Docket No. 47). See, e.g., Hernandez v. Coffey, 582 F.3d 303, 308 n.2 (2d Cir. 2009) (citing cases finding that a Local Rule 12.1 Notice provides sufficient notice to pro se parties). In his opposition brief, Plaintiff cited the legal standard on a motion for summary judgment and presented materials that he thought were pertinent to a summary judgment motion. Thus, the Court will review Defendants' converted motion under the governing standards for summary judgment.

Summary judgment is appropriate when the record demonstrates that there are no genuine issues of material fact in dispute and that one party is entitled to judgment as a matter of law. See Fed. R. Civ. P 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A genuine issue of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The moving party bears the initial burden of informing the court of the basis for its motion and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, that demonstrate the absence of a genuine issue of material fact. See Fed. R. Civ. P. 56(a), (c); Celotex, 477 U.S. at 323. In ruling on a motion for summary judgment, all evidence must be viewed in the light most favorable to the non-moving party, Overton v. N.Y. State Div. of Military & Naval Affairs, 373 F.3d 83, 89 (2d Cir. ...

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