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Nelson v. Correction Officer McGrain

United States District Court, Second Circuit

October 22, 2013

JEFFREY NELSON, Plaintiff,
v.
CORRECTION OFFICER MARC McGRAIN, Defendant.

DECISION AND ORDER

MICHAEL A. TELESCA, District Judge.

I. Introduction

Pro se plaintiff Jeffrey Nelson ("Nelson" or "Plaintiff"), an inmate in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS") commenced this action pursuant to 42 U.S.C. ยง 1983 asserting that Defendant Correction Officer Marc McGrain ("CO McGrain" or "Defendant") violated his constitutional rights on various occasions while he was housed at Southport Correctional Facility ("Southport"). Defendant has filed a motion for summary judgment (Dkt #7), which Plaintiff has opposed.

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)). 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.

B. Summary Judgment Standard

Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). Initially, the moving party must show that there is "an absence of evidence to support the non-moving party's case." Celotex Corp. v. Catrett , 477 U.S. 317, 325 (1986). Once the moving party has carried its burden, the opposing party must set forth "specific facts showing that there is a genuine issue for trial[, ]" FED. R. CIV. P. 56(e), and must introduce evidence beyond the mere pleadings to show that there is an issue of material fact concerning "an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex , 477 U.S. at 322.

A material fact is genuinely in dispute "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 reviewing court resolves "all ambiguities and draw[s] all inferences in favor of the nonmoving party in order to determine how a reasonable jury would decide." Aldrich v. Randolph Cent. Sch. Dist. , 963 F.2d 520, 523 (2d Cir. 1992) (citation omitted). Thus, "[o]nly when reasonable minds could not differ as to the import of the evidence is summary judgment proper." Bryant v. Maffucci , 923 F.2d 979, 982 (2d Cir.) (citing Anderson , 477 U.S. at 250-51), cert. denied, 502 U.S. 849 (1991). If, "as to the issue on which summary judgment is sought, there is any evidence in the record from which a reasonable inference could be drawn in favor of the opposing party, summary judgment is improper." Security Ins. Co. of Hartford v. Old Dominion Freight Line Inc. , 391 F.3d 77, 83 (2d Cir. 2004) (quotation omitted).

III. Discussion

Nelson alleges that CO McGrain violated his constitutional rights in various ways on several different occasions, and that these actions represent a pattern of retaliatory conduct directed at quelling his exercise of his First Amendment right to seek redress of grievances.

A. Verbal Harassment on August 29, 2011

On August 29, 20111, Plaintiff alleges that Defendant stated to him, "Stop writing complaints on the staffs [sic]! Do you hear me you deaf retard! Cause I can make your stay here very miserable!" Defendant then "pull[ed] his pants down and jam[med] his buttock[s] in the feed up slot and pass[ed] gas[, ]" while stating, "[I]f you don't hear that you will sure smell it!" Plaintiff's Affidavit ("Pl's Aff.") at 2. According to Plaintiff, these threats "intimidated [him] with fearful panic attack of worrying about being set up with unlawful contraband." Id . (citing Declaration of Assistant Attorney General Hillel Deutsch, Esq. ("Deustch Decl."), Exhibit ("Ex.") B).

Verbal harassment does not rise to the level of a constitutional violation. See Cuoco v. Moritsugu , 222 F.3d 99, 109 (2d Cir. 2000) (noting that "rudeness and name-calling does not rise to the level of a constitutional violation"); Purcell v. Coughlin , 790 F.2d 263, 265 (2d Cir. 1986) (similar). Because the verbal harassment and derogatory remarks alleged do not constitute a constitutional violation, the verbal harassment claim is dismissed. See, e.g., Prior v. Goord, ...


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