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Noel v. Moore

United States District Court, N.D. New York

February 1, 2017

DAVIDSON NOEL, a/k/a Noel Davidson, Plaintiff,
v.
BRIAN MOORE, C.O., et al., Defendants.

          DECISION AND ORDER

          Lawrence E. Kahn U.S. District Judge

         I. INTRODUCTION

         Pro se Plaintiff Davidson Noel, a/k/a Noel Davidson, commenced this civil rights action in November 2016, asserting claims arising out of his confinement at Riverview Correctional Facility (“Riverview C.F.”). Dkt. No. 1 (“Complaint”). After review in accordance with 28 U.S.C. §§ 1915(e) and 1915A(b), the Court found that the Complaint was subject to dismissal for failure to state a claim upon which relief may be granted. Dkt. No. 8 (“December Order”) at 13. Because Plaintiff's claims against defendants Moore and Doe based on interference with legal mail, denial of access to the courts, and failure to properly investigate his grievance, and his Fourteenth Amendment failure-to-investigate claim against defendant Fiffiled, were also found to be repetitive and duplicative of Plaintiff's claims in Noel v. Moore (Noel I), No. 16-CV-996 (N.D.N.Y. filed Aug. 11, 2016), an earlier filed action, those claims were dismissed with prejudice and without leave to amend, Dec. Order at 13.

         Plaintiff was afforded the opportunity to present an amended complaint if he wished to pursue his retaliation and medical care claims. Id. at 13-14. This Amended Complaint is now before the Court for review. Dkt. No. 11 (“Amended Complaint”).

         II. DISCUSSION

         Plaintiff's seventeen-page Amended Complaint is a disjointed and at times repetitive restatement of the claims asserted in his original Complaint. Am. Compl.[1] Original defendants C.O. Moore, C.O. “John Doe, ” and Sgt. Fiffiled are the only defendants named in the Amended Complaint. Plaintiff seeks an award of $81, 000, 000 in damages. Id. at 15.

         A. Claims Dismissed with Prejudice

         In the Amended Complaint, Plaintiff reasserts his claims that a piece of incoming legal mail from the Court of Claims was tampered with on March 21, 2016, that he was denied access to the courts as a result, and that Sgt. Fiffiled failed to properly investigate his grievance. Id. at 3-13.[2]

         These claims were dismissed with prejudice and without leave to amend upon initial review of the original Complaint. Dec. Order at 12.[3] Moreover, Plaintiff was specifically advised in the December Order that “[c]laims dismissed with prejudice shall not be included in an amended complaint.” Id. Because these claims are not properly asserted in Plaintiff's Amended Complaint, the Court will not consider them further.

         B. Retaliation Claim

         In his original Complaint, Plaintiff claimed that C.O. Moore threatened him with physical harm and denied him “adequate law library access” in retaliation for his having filed a grievance regarding the incident with his legal mail. Compl. at 8. Plaintiff did not allege that he suffered any injury as a result of the alleged misconduct, which was described in wholly conclusory terms. Id. Upon review, this Court concluded that Plaintiff had not alleged facts sufficient to plausibly suggest that the actions taken by C.O. Moore were sufficiently “adverse” for purposes of a First Amendment retaliation claim. Dec. Order at 9-10. This claim was therefore dismissed without prejudice for failure to state a claim. Id. at 13-14.

         In his Amended Complaint, Plaintiff restates his retaliation claim against C.O. Moore. Am. Compl. at 6. Plaintiff describes the adverse action taken against him as follows:

Davidson Noel ha[s] received several threats by Officer Brian Moore who allegedly yelled at me while he told another officer to kill me during recreation s[e]cluded area pat frisk unsupervised no cameras to beating me up break my harm and any verbal threats abused vulgarity made several comment harm to Davidson Noel promised to insulting me or any adverse action disrespectful . . . .

Id. Plaintiff also claims that C.O. Moore denied him law library call-outs on more than one ...


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