United States District Court, N.D. New York
DECISION AND ORDER
Lawrence E. Kahn U.S. District Judge
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.
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
seventeen-page Amended Complaint is a disjointed and at times
repetitive restatement of the claims asserted in his original
Complaint. Am. Compl. 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.
Claims Dismissed with Prejudice
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
claims were dismissed with prejudice and without leave to
amend upon initial review of the original Complaint. Dec.
Order at 12. 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.
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.
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 ...