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Shannon v. Venettozzi

United States District Court, S.D. New York

January 8, 2015




Pro se plaintiff Jesse Shannon commenced this action against numerous individuals on June 29, 2013 for alleged violations of his federal constitutional rights and state law rights while he was in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS") at Sing Sing Correctional Facility ("Sing Sing"). (Complaint, ECF No. 2.) His claims primarily allege sexual abuse when corrections officer ("C.O.") Jermaine McTurner conducted four separate pat frisks on plaintiff in 2011, and retaliation in connection with his complaints relating thereto. Plaintiff seeks both damages and injunctive relief.

On July 11, 2014, defendants moved to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6). (ECF No. 64.) The motion became fully briefed on August 29, 2014. (ECF Nos. 65, 70, 75). On November 14, 2014, plaintiff filed what was styled as a motion to dismiss defendant's reply; however, liberally construed, this filing is in effect a separate motion by plaintiff seeking to amend his complaint. (ECF No. 80).

For the reasons set forth below, defendants' motion to dismiss is GRANTED, and plaintiff's motion to amend is DENIED.


Plaintiff Jesse Shannon alleges that on four separate occasions between August 16, 2011 and November 20, 2011, C.O. McTurner sexually abused him while conducting a pat frisk. (Compl. ¶¶ 18, 20-22, 25.) Each of these pat frisk searches occurred when plaintiff had to use the bathroom while visiting with his wife. (Id.) As an example, plaintiff alleges that on August 16, 2011, C.O. McTurner sexually assaulted him in the presence of C.O. Moore for 15 seconds when he "overly searched Plaintiff in an aggressive and very provocative manner". (Id. ¶ 18.)

Plaintiff contends that he notified area supervisors, Sergeant Kasper and Sergeant Colon, about the assault, but they failed to get involved. (Id. ¶¶ 18, 20, 21.) Plaintiff also filed grievances against C.O. McTurner and Sergeant Kasper in August 2011 and against other corrections staff in November 2011. (Id. ¶¶ 19, 23, 26 n.2.) Multiple staff members allegedly retaliated against plaintiff because he filed complaints. (Id. ¶¶ 19, 26 n.2, 28-29.) Plaintiff describes those instances of retaliation as follows:

On or about January, 29, 2012, C.O. Moore fabricated a misbehavior report in retaliation for plaintiff's filing a grievance complaint against C.O. McTurner; plaintiff was held in keeplock confinement for 45 days as a result of the report. (Id. ¶ 28, Prelim. St.)

On February 15, 2012, C.O. Gregory confiscated a magazine called "Scrilla Guerillaz." (Id. ¶ 29.) The following day, C.O. Gregory told plaintiff that he would not receive the magazine because of his grievance complaints. (Id. ¶ 30.) On February 20, 2012, plaintiff filed a new grievance against C.O. Gregory and on February 25, 2012, he filed a misdemeanor complaint with the Westchester District Attorney's Office. (Id. ¶ 31.) On March 21, 2012, Lt. Werlau approached plaintiff to inform him that he should speak with Lt. Werlau first before filing criminal charges against corrections officers. (Id. ¶ 32.)

On December 6, 2012, another Scrilla Guerillaz magazine arrived for plaintiff. Lt. Werlau subsequently "harassed, intimidated and interrogated" plaintiff about his involvement in an interview that another inmate gave to the magazine. (Id. ¶ 33.) Lt. Werlau ordered non-party K. James and C.O. Velez to search plaintiff's cell wherein they confiscated several items including four Scrilla Guerillaz magazines. (Id. ¶ 37.) Plaintiff was placed on keeplock status and confined to his cell for failure to sufficiently answer Lt. Werlau's questions. (Id.) On December 8, 2012, plaintiff was served with a Tier III misbehavior report for violating rules against unauthorized organization and lying. (Id. ¶¶ 36, 38.) The report related to plaintiff's being a member of "Scrilla Guerillaz, " which the prison considered an unauthorized organization because it is a "military minded organization". (Id. ¶ 41.) During the Tier III disciplinary hearing, Lt. Werlau testified that plaintiff appeared in several issues of the Scrilla Guerillaz magazine without permission. (Id. ¶ 42.) Plaintiff's wife testified that she gave the magazine permission to use her name in the interview. (Id. ¶ 40.) On January 8, 2013, Deputy Keyser found plaintiff guilty of the misbehavior report and imposed a penalty of 90 days in keeplock confinement and loss of certain privileges. (Id. ¶ 34-35.) Plaintiff alleges that the disciplinary actions were a form of retaliation and that Deputy Keyser deliberately disregarded evidence. (Id. ¶ 45, 48, 50.)


Under Federal Rule of Civil Procedure 12(b)(6), a defendant may move to dismiss a Complaint for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). To survive a Rule 12(b)(6) motion to dismiss, plaintiff "must provide the grounds upon which his claim rests through factual allegations sufficient to raise a right to relief above the speculative level.'" ATSI Commc'ns, Inc. v. Shaar Fund. Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In other words, the Complaint must allege "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570. "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). The Court accepts as true all well-pleaded factual allegations and draws all reasonable inferences in plaintiff's favor, but does not credit "mere conclusory statements" or "[t]hreadbare recitals of the elements of a cause of action." Id.

"[A] pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers..." Estelle v. Gamble, 429 U.S. 97, 106 (1976) (citations and internal quotation marks omitted). Accordingly, the Court "liberally construe[s] pleadings and briefs submitted by pro se litigants... reading such submissions to raise the strongest arguments they suggest." Bertin v. United States, 478 F.3d 489, 491 (2d Cir. 2007). However, even a pro se complaint must plead "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678; see Fuentes v. Tilles, 376 F.Appx. 91, 92 (2d. Cir. 2010) (affirming district court's dismissal of pro se complaint for failure to state a claim).


Liberally construed, plaintiff alleges claims under 42 U.S.C. § 1983 and New York state law for (1) sexual abuse and failure to protect (Compl. ¶ 68); (2) retaliatory actions for filing grievances (Compl. ¶¶ 28-36, 48, 71); (3) failure of due process relative to inmate disciplinary proceedings (Compl. ¶¶ 45, 49, 64, 66, 75-77); (4) being subjected to keeplock status and associated deprivation of various privileges (Compl. ¶¶ 54, 58, 60, 66, 70); and (5) violating his property rights, including the withholding and confiscation of "Scrilla Guerillaz" magazines and other personal property (Compl. ¶¶ 29, 33, 37, 62, 71, 73).[1]

For the reasons that follow, plaintiff fails to adequately plead any § 1983 or state law claim against the defendants.

A. Claims against defendants in their official capacities

Plaintiff brings claims against defendants in both their official and individual capacities. The claims against defendants in their official capacities are dismissed on the grounds of Eleventh Amendment sovereign immunity. The Eleventh Amendment prohibits suits against a state or its agency in federal court unless the state consents or there has been a valid abrogation of its sovereign immunity by an act of Congress. See Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 100-01 (1984). Section 1983 does not constitute such an abrogation. See Quern v. Jordan, 440 U.S. 332, 343 (1979); Davis v. New York, 316 F.3d 93, 101 (2d Cir. 2002) (affirming dismissal of § 1983 claims for damages against state, department, prison, and prison officials in their official capacities on Eleventh Amendment grounds). Accordingly, all claims against defendants in their official capacities are dismissed.

B. Failure to exhaust

Defendants challenge plaintiff's retaliation claim against Deputy Keyser and his claims regarding the conditions of his confinement while being held in keeplock on the grounds that plaintiff failed to exhaust his administrative remedies under the Prison Litigation Reform Act ("PLRA"). Under the PLRA, "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). "Exhaustion is mandatory' and applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes.'" Hernandez v. Coffey, 582 F.3d 303, 305 (2d Cir. 2009) (quoting Porter v. Nussle, 534 U.S. 516, 524 (2002)). Where a plaintiff's failure to exhaust his or her administrative remedies under the PLRA appears on the face of the complaint, dismissal is warranted at the pleading stage. See Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 74 (2d Cir. 1998).

Here, plaintiff exhausted his administrative remedies with respect to the sexual abuse allegations, but he never grieved his retaliation claim against Deputy Keyser or the conditions of his confinement while being held in keeplock. An inmate claiming that a defendant conducted a disciplinary hearing because of retaliatory motives must follow DOCCS' three-step process to exhaust administrative remedies. See, e.g., Scott v. Gardner, 287 F.Supp.2d 477, ...

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