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Adekoya v. Herron

United States District Court, Second Circuit

November 19, 2013

PRlNCE A.Z.K. ADEKOYA, II, Plaintiff,
MARTIN D. HERRON, Facility Director, Buffalo Federal Detention Facility, et al., Defendants.


MICHAEL A. TELESCA, District Judge.

I. Introduction

Prince A.Z.K. Adekoya, II ("Adekoya" or "Plaintiff") instituted this pro se action pursuant to 42 U.S.C. § 1983, Bivens v. Six Unknown Named Agents , 403 U.S. 388 (1971), and other federal and state laws and statutes. All defendants worked at the Buffalo Federal Detention Facility ("BFDF") in Batavia, New York, during the times relevant to the instant action. Presently before the Court are a motion to dismiss the amended complaint by Matthew Buck ("Buck"), Michael Finnigan ("Finnigan"), Terry Florian ("Florian"), Martin Herron ("Herron"), and Kurt Lasley ("Lasley") (collectively, the "Federal Defendants")[1], as well as a motion to dismiss by defendant Tracy Battaglia, L.P.N. ("Nurse Battaglia").

II. Background

1. Prior Proceedings

Plaintiff is a native and citizen of Nigeria who entered the United States in 1992 or 1993. After being convicted on charges of Attempted Unlawful Use of Unauthorized Access Devices (18 U.S.C. § 1029(a)(2)) and Unlawful Use of Identifying Information Belonging to Another (18 U.S.C. § 1028(a)(7)), Plaintiff served 57 months in prison. See United States v. Adekoya, 214 F.App'x 82, 2007 WL 186659 (2d Cir. Jan. 22, 2007). Plaintiff filed habeas petitions challenging his convictions in this District and in the Southern District of New York, which were denied. See Adekoya v. Herron, 6:10-CV-06272 (W.D.N.Y.); Adekoya v. Herron, 1:10-CV-9299 (S.D.N.Y.).

As a result of these criminal convictions, Plaintiff was ordered removed from the United States. On November, 9, 2010, Plaintiff filed a petition for review challenging the removal order in the United States Court of Appeals for the Second Circuit. Adekoya v. Holder, No. 10-4585 (2d Cir. 2010). On March 28, 2013, the Second Circuit granted the petition for review in part, denied it in part, and dismissed the pending motions for a stay of removal. In particular, the Second Circuit remanded the matter to the Bureau of Immigration Appeals to address a jurisdictional issue regarding Plaintiff's filing of a motion to reopen his administrative proceedings.

A repeat filer in federal court, Plaintiff has complained repeatedly and unsuccessfully regarding the conditions of his confinement over the years. See Adekoya v. Federal Bureau of Prisons, et al., 1:06-CV-6969 (S.D.N.Y.) (dismissed by district court on motion; affirmed on appeal); Adekoya v. Federal Bureau of Prisons, et al., 1:08-CV-1484 (S.D.N.Y.) (dismissed by district court for failure to exhaust administrative remedies; affirmed on appeal); Adekoya v. Federal Bureau of Prisons, et al., 1:08-CV-5912 (S.D.N.Y.) (dismissed by district court); Adekoya v. Chertoff, et al., 2:08-CV-3994, 2009 WL 539884 (D. N.J. Mar. 4, 2009) (dismissed by district court on initial screening), Adekoya v. Chertoff, et al., 2:08-CV-3994, 2009 WL 2990130 (D.N.J. Sept. 16, 2009) (dismissed by district court after amended complaint filed), Adekoya v. Chertoff, et al., No. 11-1990, 2011 WL 2461343 (3d Cir. Jun. 21, 2011) (per curiam) (affirming district court's grant of summary judgment in defendants' favor); Adekoya v. Yar'adua, et al., 1:09-CV-1372 (S.D.N.Y.) (dismissed for lack of subject matter jurisdiction; Second Circuit dismissed plaintiff's appeal on the grounds that it "lack[ed] an arguable basis in law or fact"); Adekoya v. Holder, et al., 1:09-CV-10325 (S.D.N.Y.) (dismissed by district court; affirmed on appeal).

2. The Instant Action

On November 15, 2010, Plaintiff commenced this lawsuit against numerous defendants regarding alleged mistreatment and constitutional violations while he was housed at the BFDF. In its initial order (Docket #4), the Court (Skretny, D.J.) advised Plaintiff that due to the verbosity of his complaint, he was required to file an amended complaint in compliance with Federal Rules of Civil Procedure ("F.R.C.P.") 8 and 10. Plaintiff was instructed in detail to provide non-conclusory allegations indicating who did what, where, and when.

Plaintiff then filed a 119-page amended complaint with two volumes of exhibits totaling 178 pages. See Amended Complaint ("Am. Compl.") [#7][2]; Exhibits A-Z [#7-1]; Exhibits Aa-Uu [#7-2]. Plaintiff either ignored or did not understand the Court's previous instructions, for his amended complaint is as prolix, jumbled, and confusing as his initial complaint. After reviewing the amended complaint under 28 U.S.C. 1915(e)(2)(B), the Court (Siragusa, D.J.), in an order dated May 16, 2011 [#8], nevertheless permitted several claims to proceed: (1) interference with religious practices; (2) unconstitutional conditions of confinement; (3) denial of access to the courts; (4) deprivation of adequate medical treatment; (5) retaliation for filing grievances and complaints; and (6) discrimination and denial of equal protection based on his race and religion. Two medical defendants, Brenda Bailey, M.D. and Deborah Bishop, P.A., were terminated based on the amended complaint, and Nurse Battaglia was added.

During the pendency of this action, Plaintiff was released from the BFDF. See Docket Entry dated 7/28/11 (noting Plaintiff's updated address).

The Federal Defendants have filed a motion to dismiss [#21] pursuant to F.R.C.P. 12(b)(6) on the basis that the Court lacks subject matter jurisdiction and that the amended complaint fails to state a claim on which relief may be granted. Plaintiff timely filed opposition papers [#27], and the Federal Defendants submitted a reply.

Tracy Battaglia, L.P.N. ("Defendant Battaglia"), represented by retained counsel, answered Plaintiff's amended complaint [#12] and filed a motion to dismiss [#28] on the basis that Plaintiff's amended complaint violates the strictures of F.R.C.P. 11. The Court (Larimer, D.J.) issued a text order [#29] on May 14, 2012, with regard to Defendant Battaglia's motion to dismiss, advising Plaintiff that if he did not respond to her motion, his complaint could be dismissed without a trial. Plaintiff has not filed papers in opposition to Defendant Battaglia's motion to dismiss.

The following defendants have neither answered nor moved to dismiss the amended complaint: Bassett, Crespo, Ferrando, George, Melancone, and William. According to Plaintiff, all of these individuals are/were security officers employed by the Valley Metro Barbosa Group, a company that contracted with ICE to provide security services at the BFDF. These defendants hereinafter are referred to as "the Contractor Defendants".

The matter was transferred to the undersigned on October 30, 2013. For the reasons that follow, the Federal Defendants' motion to dismiss is granted to the extent that the Court agrees that Plaintiff has failed to state claims upon which relief may be granted and therefore all claims against the Federal Defendants are dismissed with prejudice. The motion is denied to the extent that the Federal Defendants assert lack of subject matter jurisdiction.

The Court sua sponte, under the authority of 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1), dismisses the amended complaint in its entirety with prejudice against all remaining defendants, including Nurse Battaglia and the Contractor Defendants, for failure to state a claim upon which relief may be granted. The Court declines to exercise supplemental jurisdiction over Plaintiff's pendent state law claims, and those are dismissed with prejudice as well.

Nurse Battaglia's motion for dismissal pursuant to F.R.C.P. 11 is denied as moot in light of the Court's dismissal of the amended complaint against her for failure to state a claim.

III. 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 , 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (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 , 556 U.S. at 679, 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, " Iqbal , 556 U.S. at 678 (quoting Twombly , 550 U.S. at 555), and bare legal conclusions are "not entitled to the assumption of truth." Id. at 679.

"[I]f extrinsic evidence is a part of the pleadings, it may be considered on a motion to dismiss." Madu, Edozie & Madu, P.C. v. SocketWorks Ltd. Nigeria , 265 F.R.D. 106, 123 (S.D.N.Y. 2010). "Even where a document is not incorporated by reference, the court may nevertheless consider it where the complaint relies heavily upon its terms and effect, ' which renders the document integral' to the complaint." Chambers v. Time Warner Inc. , 282 F.3d 147, 153 (2d Cir. 2002) (quoting International Audiotext Network, Inc. v. American Tel. & Tel. Co. , 62 F.3d 69, 72 (2d Cir. 1995)). Therefore, the district court may consider exhibits as part of the pleadings "if these documents either are (1) attached to the complaint; (2) incorporated into the complaint by reference; or (3) integral to the complaint." Madu , 265 F.R.D. at 123.

B. Construction of Pro Se Pleadings

Despite the recent tightening of the standard for pleading a claim by the Supreme Court in Iqbal and Twombly, pleadings by pro se litigants continue to be accorded more deference than those filed by attorneys. Erickson v. Pardus , 551 U.S. 89, 94 (2007). Accordingly, this Court must continue to "construe [a complaint] broadly, and interpret [it] to raise the strongest arguments that [it] suggests.'" Weixel v. Board of Educ. , 287 F.3d 138, 146 (2d Cir. 2002) (quotation omitted).

C. Elements of a Bivens Claim

Jurisdiction in this action against the Federal Defendants is predicated upon Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics , 403 U.S. 388 (1971). The Supreme Court held in Bivens that "a citizen suffering a compensable injury to a constitutionally protected interest could invoke the general federal question jurisdiction of the district court to obtain an award of monetary damages against the responsible federal official." Butz v. Economou , 438 U.S. 478, 504 (1978). Recovery under Bivens can be against the federal official in his or her individual capacity only; official capacity suits are barred. Federal Deposit Ins. Corp. v. Meyer , 510 U.S. 471, 486 (1994). "Because an action against a federal agency or federal officers in their official capacities is essentially a suit against the United States, such suits are also barred under the doctrine of sovereign immunity, unless such immunity is waived." Robinson v. Overseas Military Sales Corp. , 21 F.3d 502, 510 (2d Cir. 1994) (citing Federal Deposit Ins. Corp. , 510 U.S. at 486; Kentucky v. Graham , 473 U.S. 159, 166-67 (1985)).

To state a valid Bivens claim, the plaintiff must specifically allege that each defendant was personally involved in the purportedly unconstitutional conduct. Thomas v. Ashcroft , 470 F.3d 491, 496-97 (2d Cir. 2006). Because personal involvement is a prerequisite to liability under Bivens, federal officials who are not personally involved in an alleged constitutional deprivation may not be ...

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