United States District Court, S.D. New York
OPINION AND ORDER
J. PAUL OETKEN, District Judge.
Plaintiff Rafael Leer ("Leer" or "Plaintiff"), proceeding pro se, brings this action alleging that he was subjected to excessive force while he was in custody at the Sing Sing Correctional Facility ("Sing Sing"). Leer's lawsuit names Sergeant Fisher, Sergeant Richard A. Moss, and Correction Officers Man[u]el Marmolejos, Francisco Caraballo, and Enrique Maldonado, who are alleged to be personally responsible for Leer's injuries, along with Brian Fischer (sued here as "Briant Fisher"), who at the time was the Commissioner of the New York State Department of Corrections and Community Supervision ("DOCCS"). Defendants move to dismiss the complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Leer requests that the Court assign him pro bono counsel and enter a default against Defendants. He also asks permission to amend his complaint. For the reasons that follow, Defendants' motion is granted in part and denied in part; Leer's requests for pro bono counsel and entry of default are denied; and Leer's motion for leave to file a second amended complaint is denied as moot.
According to the amended complaint, Leer was in custody at Sing Sing on April 14, 2011. (Dkt. No. 25 ("Am. Compl."), at 2.) At 8:45 a.m. that morning, Defendant Sergeant Moss escorted Leer to get medication. Because Leer was talking, he received a "ticket" and Defendant Sergeant Fisher came with four other correction officers and began to "kick and punch" Leer. ( Id. ) Leer was also hit in the face and other parts of his body by a correction officer using brass knuckles. ( Id. at 2-3.) Leer was beaten while on the way to the hospital (or perhaps the infirmary). ( Id. at 3.) While Leer was in the emergency room, Fisher made Defendant Correction Officer Enrique Maldonado use brass knuckles, placed on his hand underneath a medical glove, to hit Leer in the face. ( Id. ) Nurses on staff screamed for Fisher and the officers to stop beating Leer "before they kill[ed him], " but Fisher told the nurses on staff to leave the emergency room. ( Id. ) There was "blood all over, " Leer's body was bruised, and he "had to receive 10 stitches [on his] face." ( Id. ) Leer says that an officer named Lieutenant Mejia saw what was happening and told Defendants to stop. ( Id. )
Several years after the incident, Leer says, he still experiences pain in his back, left shoulder, and the side of his face. ( Id. ) He takes medication for the pain and suffers from posttraumatic stress disorder. ( Id. ) Leer also takes medications for mental conditions due to the assault, and says that since that day he is "not the same person." ( Id. ) He seeks compensation for his injuries and pain and suffering in the amount of $5 million, jointly and severally against all of the defendants, along with punitive damages in the amount of $50, 000, a declaration that his rights under the Constitution were violated, and his costs in this lawsuit. ( Id. at 5-6.)
Leer insists that he filed grievances with the grievance office at Sing Sing to complain about the assault by correction officers. ( Id. at 4.) The Inmate Grievance Resolution Committee claimed never to have received the grievance. ( Id. ) Leer also wrote to the Inspector General, the Attorney General's office, Internal Affairs, Department of Corrections Commissioner Brian Fischer, and the superintendent at Sing Sing. ( Id. ) Commissioner Fisher and the superintendent at Sing Sing also claimed not to have received the grievance. ( Id. ) Leer received a "tier 3 ticket" for an assault on staff, but never had a hearing; he just was asked by a lieutenant to make a recording explaining what had happened. ( Id. at 4.) Leer said that he was released shortly afterward on April 29, 2011. ( Id. ) After Leer wrote to Commissioner Fischer about the grievance, he received a letter in February 2013 from an official named Karen Bellamy on Fischer's behalf, who said neither her office nor the Sing Sing grievance office knew anything about Leer's grievance. ( Id. at 5.)
B. Procedural History
Leer filed this action on November 26, 2013. (Dkt. Nos. 1-2.) The initial complaint stated that Leer's injuries were suffered on June 14, 2011, or June 14, 2010. (Dkt. No. 2, at 2-3.) After Defendants noted that Leer was not in DOCCS custody on June 14, 2011, and asserted that a claim from June 14, 2010, would be time barred (Dkt. No. 10), Leer filed letters stating, variously, that his injuries were in fact suffered on April 14, 16, or 26, 2011. (Dkt. Nos. 12, 15, 17.) The City responded that there was a use of force incident involving Leer on April 14, 2011, and named several officers who were involved. (Dkt. No. 18.) On April 7, 2014, Leer filed an amended complaint naming these officers. (Am. Compl.) Before the motion to dismiss was filed, Leer filed several letters in which he states that he attempted to exhaust his administrative remedies. (Dkt. Nos. 34-35, 37.) On June 19, 2014, Defendants moved to dismiss. (Dkt. No. 42.) Leer has opposed the motion in several filings. (Dkt. Nos. 60, 65-67.) On June 25, 2014, Leer requested permission to file a second amended complaint (Dkt. No. 50), and, on September 19, 2014, he also requested that the Court provide him with pro bono counsel (Dkt. No. 64). On November 6, 2014, Leer requested that the Court enter a default judgment. (Dkt. No. 68.)
A. Legal Standard: Motion to Dismiss
On a motion to dismiss pursuant to Rule 12(b)(6), a court must "accept all allegations in the complaint as true and draw all inferences in the non-moving party's favor." City of New York v. Beretta U.S.A. Corp., 524 F.3d 384, 392 (2d Cir. 2008) (internal quotation marks omitted). To survive a motion to dismiss, a complaint must plead "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). A court will not consider mere conclusory allegations that lack a factual basis. Hayden v. Paterson, 594 F.3d 150, 160-61 (2d Cir. 2010).
A complaint filed pro se "must be construed liberally to raise the strongest arguments it suggests." Walker v. Schult, 717 F.3d 119, 124 (2d Cir. 2013) (brackets and internal quotation marks omitted). "[A] pro se litigant in particular should be afforded every reasonable opportunity to demonstrate that he has a valid claim." Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014) (internal quotation marks omitted). However, a pro se litigant must nonetheless "plead facts sufficient to state a claim to relief that ...