STOLL, GLICKMAN & BELLINA, LLP (CYNTHIA HELEN CONTI-COOK, ESQ., Of Counsel), Brooklyn, New York, Attorneys for Plaintiff.
HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL OF THE STATE OF NEW YORK, (BENJAMIN K. AHLSTROM, ASSISTANT ATTORNEY GENERAL, Of Counsel), Buffalo, New York, Attorneys for Defendant.
JOHN T. CURTIN, District Judge.
On January 18, 2013, plaintiff, Frank Graham, filed a complaint alleging the violation of his rights under the First, Eighth, and Fourteenth Amendments to the United States Constitution and seeking damages pursuant to 42 U.S.C. § 1983. Specifically, plaintiff alleged that, in retaliation for journal entries he made while a parolee at a boot-camp style drug treatment program, he was subjected to cruel and unusual punishment and excessive force, and was later brought up on false disciplinary charges resulting in eight months of additional custody. Item 1. He alleged claims for the use of excessive force and deliberate indifference/failure to intervene under the Eighth Amendment, deprivation of due process under the Fourteenth Amendment, and retaliation under the First Amendment. He also alleged that the defendants acted in furtherance of a conspiracy. Presently before the court is defendants' partial motion to dismiss all but plaintiff's claim for excessive force. Item 6.
BACKGROUND and FACTS
According to the complaint (Item 1), on or about January 19, 2012, plaintiff was a parolee in the custody of the New York State Department of Correctional and Community Supervision ("DOCCS") at the Willard Treatment Center ("Willard"). Item 1, ¶ 7. On that date, he was called into the office of defendant Rodabaugh, a counselor at Willard, in the presence of defendant Peters. Id., ¶ 18. Defendant Rodabaugh read aloud passages from plaintiff's journal, which plaintiff had been required to keep as part of his treatment program. Id., ¶ 19. The passages questioned the competency of the staff at Willard. As defendant Rodabaugh questioned plaintiff about the journal, defendant Peters nudged plaintiff and used racial epithets in an effort to provoke a confrontation with plaintiff. Id. Finally, defendant Peters struck plaintiff on the head with his radio and called to the other defendants, who entered the room and "repeatedly stomped, hit, punched and kicked plaintiff on the ground." Id. Plaintiff alleged that the defendants failed to intervene to prevent the assault. Id., ¶ 26. He also alleged that the defendants "were engaged in a joint venture... to violate plaintiff's rights in retaliation for his constitutionally protected criticism of Willard staff and program." Id., ¶ 30.
The defendants subsequently initiated disciplinary proceedings against plaintiff. He was found guilty, but the charges were eventually reversed. Item 1, ¶ 23. Plaintiff alleged that the defendants conspired to falsely accuse plaintiff of initiating the assault and made false statements in reports and hearings. Id., ¶ 22. Instead of being released in January 2012, plaintiff remained in custody until September 2012. Id., ¶ 24.
In lieu of an answer, on August 9, 2013, defendants filed a partial motion to dismiss, arguing that plaintiff's due process claim fails to identify any denial of required process, the failure to intervene claim lacks any factual support, the First Amendment retaliation claim lacks the required element of protected activity, and plaintiff failed to adequately plead a conspiracy. Item 6. Plaintiff filed a response to the motion on September 9, 2013 (Items 8, 9), and the defendants filed a reply on September 13, 2013. Item 10. The court has determined that oral argument is unnecessary. For the following reasons, the defendants' motion is granted in part.
1. Standard on a Motion to Dismiss
In considering a motion to dismiss pursuant to Rule 12(b)(6), the court must take "factual allegations [in the complaint] to be true and draw[ ] all reasonable inferences in the plaintiff's favor." Harris v. Mills, 572 F.3d 66, 71 (2d Cir. 2009) (citation omitted). The court's function on a motion to dismiss is "not to weigh the evidence that might be presented at a trial but merely to determine whether the complaint itself is legally sufficient." Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir. 1985) (citation omitted). The court should not dismiss the complaint if the plaintiff has provided "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While the court should construe the factual allegations in the light most favorable to the plaintiff, "the tenet that [the court] must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Id.
2. Due Process Claim
In his complaint, plaintiff alleged that he was deprived of procedural due process in that the defendants initiated disciplinary proceedings against him based on false reports of the incident of January 19, 2012. As a result, instead of being released from the Willard drug ...