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Brown v. Fischer

United States District Court, Second Circuit

October 8, 2013

FRANK BROWN, Plaintiff,
v.
SUPERINTENDENT FISCHER, et al., Defendants.

DECISION AND ORDER

MICHAEL A. TELESCA, District Judge.

I. Introduction

Frank Brown ("Plaintiff"), proceeding pro se, instituted this action pursuant to 42 U.S.C. 1983, alleging that Defendants violated his constitutional rights while he was an inmate in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS") housed at Elmira Correctional Facility ("Elmira"). The Court (Larimer, D.J.) dismissed the Complaint (Dkt #1) in its entirety pursuant to 28 U.S.C. § 1915(e)(B)(i), finding that it was "composed of the type of fantastic, ' delusional' and incredible' allegations that warrant dismissal as factually frivolous." Order dated June 27, 2011, p. 3 (Dkt #9). Judge Larimer denied leave to replead on the basis that amending the Complaint would be futile. Id., p. 4.

Plaintiff appealed to the United States Court of Appeals, which vacated Judge Larimer's order and remanded the case to provide Plaintiff an opportunity to proceed with respect to the following causes of action: (1) his Eighth Amendment excessive force claim (First Claim); (2) his First Amendment retaliation claims that are not based on food-tampering incidents (Second and Fourth Claims); (3) his First Amendment mail-tampering claims (Third and Eleventh Claims); (4) his Fourteenth Amendment due process claim against correctional officers (Sixth Claim); (5) his First Amendment free exercise claim (Tenth Claim); and (6) his claim alleging that individual DOCCS officials allowed prison employees to commit constitutional violations (Fourteenth Claim), "to the extent that the claims are brought against individual defendants, as the claims state non-frivolous causes of action." Brown v. Fischer, 11-2809-pr (2d Cir. Dec. 2, 2011), issued as mandate Jan. 12, 2012 (Dkt #16). The Second Circuit dismissed the appeal with respect to all of the foregoing claims, to the extent that Plaintiff's allegations were directed against DOCCS, on the basis that as state agencies are not "persons" amenable to suit under 42 U.S.C. § 1983. Id . Finally, the Second Circuit dismissed the Fifth, Seventh, Eighth, Ninth, and Twelfth Claims as lacking any arguable basis in fact or law. Id.

Thus, the First, Second, Third, Fourth, Six, Tenth, Eleventh, and Fourteenth Claims were allowed to proceed. Defendants have moved to dismiss these remaining claims pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure ("Rule 12(b)(6)") for failure to state a claim upon which relief may be granted. Plaintiff has opposed the motion. For the reasons that follow, Defendants' motion is granted in its entirety, and the Complaint is dismissed.

II. General Legal Principles

A. Motions to Dismiss for Failure to State a Claim

Rule 12(b)(6) allows dismissal of complaints based upon the plaintiff's failure "to state a claim upon which relief can be granted." FED. R. CIV. P. 12(b)(6). In order "[t]o survive a motion to dismiss under [Rule 12(b)(6)], a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. '" Ashcroft v. Iqbal, ___ U.S. ___, ___ , 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (emphasis supplied)). In assessing a claim's plausibility, the district court must "assume [the] veracity" of all well-pleaded factual allegations contained in the complaint, Iqbal , 129 S.Ct. at 1950, and draw every reasonable inference in favor of the plaintiff, Zinermon v. Burch , 494 U.S. 113, 118 (1990). However, the plaintiff's allegations must consist of more than mere labels or a "formulaic recitation of the elements of a cause of action, " and bare legal conclusions are "not entitled to the assumption of truth." Iqbal , 129 S.Ct. at 1949-50.

The facial plausibility standard is met when "the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal , 129 S.Ct. at 1949. Although this standard does not require a showing of a probability" of misconduct, it does demand more than "a sheer possibility that a defendant has acted unlawfully." Id . Thus, "where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, " dismissal is appropriate. Starr v. Sony BMG Music Entertainment , 592 F.3d 314, 321 (2d Cir. 2010) (quoting Iqbal , 129 S.Ct. at 1950); see also Twombly , 550 U.S. at 570 (noting that where plaintiffs "have not nudged their claims across the line from conceivable to plausible, their complaint must be dismissed"). If, even assuming the truthfulness of the allegations, they "could not raise a claim of entitlement to relief, this basic deficiency should be exposed at the point of minimum expenditure of time and money by the parties and the court." Twombly , 550 U.S. at 558.

B. Construction of Pro Se Pleadings

The Supreme Court has noted that "[a] document filed pro se is to be liberally construed, ' and must be held to less stringent standards than formal pleadings drafted by lawyers.'" Erickson v. Pardus , 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble , 429 U.S. 97, 106 (1976)); see also Bertin v. United States , 478 F.3d 489, 491 (2d Cir. 2007). Because Plaintiff is acting pro se, the Court will construe his submissions liberally, "to raise the strongest arguments they suggest." Bertin , 478 F.3d at 489.

III. Discussion

A. First Claim: Excessive Force

In support of his first claim, Plaintiff alleges that he was subjected to an excessive use of force in violation of the Eighth Amendment on March 27, 2006. Corrections officers alleged to have been involved include Harvey, Chorney, Perfetti, and Steinhopper. Defendants argue that this claim is time-barred because it ...


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