United States District Court, W.D. New York
JOHNNIE P. WASHINGTON, Plaintiff,
KAREN CROWLEY, S. MOORE, CAROL HILLMAN, BONNIE MORRIS, J. ALOI, M. NEMIER, REPERT, HANA MARTIN, M. SMITH, TESTSTANI II, SARGEANT AYERS, VICKI SEAFORD, MS. WINTERS, LAURA HAMILTON and M. COOK, Defendants.
DECISION AND ORDER
DAVID G. LARIMER, District Judge.
Plaintiff, Johnnie P. Washington, filed this pro se action seeking relief under 42 U.S.C. § 1983 (Docket No. 1). Plaintiff then filed numerous letters and documents with the Court indicating he was attempting to supplement his complaint (Docket Nos. 3-6). By Order dated January 28, 2014, plaintiff was directed to amend his complaint and include all claims he is intending to bring against all parties so that the Court may review a single pleading (Docket No. 7). The plaintiff has now filed an amended complaint (Docket No. 8).
The Court has reviewed plaintiff's amended complaint pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A. Plaintiff alleges that defendants improperly placed him on New York State's Sex Offender Registry and took various unlawful actions against him at several prisons throughout New York State, including physically assaulting him at Southport Correctional Facility.
For the reasons set forth below, plaintiff's claim of improper placement on the sex offender registry against defendant Crowley and his claim of use of excessive force against defendants Smith, Teststanti and Ayers may proceed forward against these defendants in their individual capacity and official capacity claims are dismissed. Plaintiff's claims of verbal harassment, false misbehavior reports and weapons planted in his cell are dismissed with prejudice. Plaintiff's claim of denial of privileges is dismissed without prejudice. Anthony Annucci, Acting Commissioner of the New York State Department of Corrections and Community Supervision ("DOCCS"), is added as a defendant in his official capacity for the purpose of effectuating any equitable relief which may be granted to plaintiff. Defendants Moore, Hillman, Morris, Aloi, Nemier, Repert, Martin, Seaford, Winters, Hamilton and Cook are dismissed from this action.
Sections 1915(e)(2)(B) and 1915A(a) of 28 U.S.C. require the Court to conduct an initial screening of this complaint. The Court shall dismiss a complaint if the action (i) is frivolous or malicious; (ii) fails to state a claim upon which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b); see also Abbas v. Dixon, 480 F.3d 636 (2d Cir. 2007).
In evaluating the complaint, the Court must accept as true all of the factual allegations and must draw all inferences in plaintiff's favor. See Larkin v. Savage, 318 F.3d 138, 139 (2d Cir. 2003) (per curiam); King v. Simpson, 189 F.3d 284, 287 (2d Cir. 1999). "Specific facts are not necessary, " and the plaintiff "need only give the defendant fair notice of what the... claim is and the grounds upon which it rests.'" Erickson v. Pardus, 551 U.S. 89, 93(2007) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks and citation omitted); see also Boykin v. Keycorp, 521 F.3d 202, 213 (2d Cir. 2008) (discussing pleading standard in pro se cases after Twombly ). "A document filed pro se is to be liberally construed, ..., and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson, 551 U.S. at 94 (internal quotation marks and citations omitted). Generally, the Court will afford a pro se plaintiff an opportunity to amend or to be heard prior to dismissal "unless the court can rule out any possibility, however unlikely it might be, that an amended complaint would succeed in stating a claim.'" Abbas, 480 F.3d at 639 (quoting Gomez v. USAA Federal Savings Bank, 171 F.3d 794, 796 (2d Cir. 1999) (per curiam)).
Plaintiff brings this action pursuant to 42 U.S.C. § 1983. "To state a valid claim under 42 U.S.C. § 1983, the plaintiff must allege that the challenged conduct (1) was attributable to a person acting under color of state law, and (2) deprived the plaintiff of a right, privilege, or immunity secured by the Constitution or laws of the United States." Whalen v. County of Fulton, 126 F.3d 400, 405 (2d Cir. 1997) (citing Eagleston v. Guido, 41 F.3d 865, 875-76 (2d Cir.1994)).
NATURE OF CLAIMS
Plaintiff's amended complaint read as a whole alleges that defendants have committed constitutional violations against him because they have information that he is a sex offender. Plaintiff asks for relief including that the Court "investigate" his inmate records and have "any and every sexual document removed or expunged" from his records. Plaintiff states that the constitutional basis for his claims is the Ninth Amendment.
In deference to plaintiff's pro se status, the plaintiff's allegations have been read to "raise the strongest arguments that they suggest." Weixel v. Board of Educ. City of New York, 287 F.3d 138, at *146 (2d Cir. 2002) citing McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (internal quotation marks omitted). For this reason, plaintiff's claims have not been analyzed by the confines of the Ninth Amendment.
Sex Offender Registration
Plaintiff alleges that defendant Crowley, the Deputy Superintendent of Programs at Wende Correctional Facility, improperly placed him on the New York State Sex Offender Registry. See New York Sex Offender Registration Act ("SORA"), N.Y. Correct. Law § 168. Plaintiff alleges that he does not have a conviction that qualifies for the sex offender registry based on the date of the particular conviction.
Plaintiff has alleged sufficient facts to allow the claim of improper placement on the sex offender registry to go ...