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Brown v. Cunningham

United States District Court, S.D. New York

February 14, 2017

REGGIE BROWN, Plaintiff,


          Vincent L. Briccetti United States District Judge

         Plaintiff Reggie Brown, proceeding pro se and in forma pauperis, brings this action under 42 U.S.C. § 1983, alleging defendants violated his constitutional rights by transferring him from Woodbourne Correctional Facility (“Woodbourne”) to Franklin Correctional Facility (“Franklin”) and then from Franklin to Greene Correctional Facility (“Greene”) in retaliation for the plaintiff's exercise of his First Amendment rights.

         Now pending is defendants' motion to dismiss the amended complaint pursuant to Rules 12(b)(1) and 12(b)(6). (Doc. #27).

         For the reasons set forth below, the motion is GRANTED in part and DENIED in part.

         This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331.


         For purposes of ruling on a motion to dismiss, the Court accepts all factual allegations of the amended complaint as true, and draws all reasonable inferences in plaintiff's favor.

         On May 23, 2013, plaintiff was granted an “area-of-preference” transfer from Eastern Correctional Facility to Woodbourne. (Am. Compl. at 7).[1]

         Plaintiff alleges that while housed at Woodbourne, he “was working, very hard, on achieving his High School Equivalency Diploma, so he could sign up for the summer of 2015 Bard College program.” (Am. Compl. at 5).

         However, beginning shortly after his arrival at Woodbourne, plaintiff became dissatisfied with the medical treatment he was receiving. He filed several grievances, “numerous letters, ” and, on August 6, 2014, he initiated an Article 78 petition in Supreme Court, Sullivan County, relating to his medical treatment at Woodbourne (Index No. 001862/2014). (Am. Compl. at 10).

         In September 2014, shortly after his Article 78 petition was served, plaintiff's “housing officer” told plaintiff he was being transferred to another facility. (Am. Compl. at 11). The housing officer told plaintiff he did not know why he was being transferred.

         Plaintiff then wrote a letter to defendant Cunningham, the Superintendent of Woodbourne, in which he asked why he was being transferred and explained he did not think it was justified. In particular, plaintiff allegedly informed Cunningham he had “never requested a transfer, signed a hub waiver, violated any of the prison rules and regulations, caught a ticket during his entire stay at Woodbourne, or done anything that would cause him to be transferred to another facility and lose his area-of-preference transfer.” (Am. Compl. at 11).

         By memorandum dated September 30, 2014, Cunningham confirmed plaintiff would be transferred. In particular, Cunningham wrote, “As discussed, as a result of your dissatisfaction with your medical treatment at this facility, your public criticism of the medical treatment of all inmates at Woodbourne Correctional Facility and your overall inability to get along with medical staff here, you are being transferred to a more suitable facility.” (Am. Compl. Ex. H).

         On October 7, 2014, plaintiff was transferred to Franklin.

         Plaintiff opposed this decision and sought transfer back to Woodbourne. On October 10, 2014, he filed a grievance to this effect. On October 29, 2014, plaintiff was informed he would “be submitted for an area-of-preference transfer.” (Am. Compl. Ex. I). Plaintiff was then placed on a waiting list for transfer back to his area-of-preference.

         Plaintiff then sent letters to defendants Anthony Annucci, Ann Marie McGrath, Jim Gambino, John/Jane Doe, Jeffrey McKoy, and Joseph Bellnier, requesting expedited transfer back to Woodbourne, but with no success.

         Plaintiff initiated this case on June 30, 2015. He alleges after defendants were served with the complaint, defendant McGrath “had plaintiff transferred” to Greene, “as a form of punishment.” (Am. Compl. at 14).

         According to the New York State Department of Corrections and Community Supervision website, plaintiff was released to parole on September 8, 2016.[2]


         I. Standard of Review

         “A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it.” Nike, Inc. v. Already, LLC, 663 F.3d 89, 94 (2d Cir. 2011) (internal quotation marks omitted). “[F]ederal courts are courts of limited jurisdiction and lack the power to disregard such limits as have been imposed by the Constitution or Congress.” Durant, Nichols, Houston, Hodgson, & Cortese-Costa, P.C. v. Dupont, 565 F.3d 56, 62 (2d Cir. 2009) (internal quotation marks omitted). The party invoking the Court's jurisdiction bears the burden of establishing jurisdiction exists. Conyers v. Rossides, 558 F.3d 137, 143 (2d Cir. 2009).

         In deciding a Rule 12(b)(6) motion, the Court evaluates the sufficiency of the operative complaint under the “two-pronged approach” articulated by the Supreme Court in Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). First, plaintiff's legal conclusions and “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, ” are not entitled to the assumption of truth and are thus not sufficient to withstand a motion to dismiss. Id. at 678; Hayden v. Paterson, 594 F.3d 150, 161 (2d Cir. 2010). Second, “[w]hen there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Ashcroft v. Iqbal, 556 U.S. at 679.

         To survive a Rule 12(b)(6) motion, the allegations in the complaint must meet a standard of “plausibility.” Id. at 678; Bell Atl. Corp. v. Twombly, 550 U.S. 544, 564 (2007). A claim is facially plausible “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. at 678. “The plausibility standard is not akin to a ‘probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id.

         The Court must liberally construe submissions of pro se litigants, and interpret them “to raise the strongest arguments that they suggest.” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (per curiam) (internal quotation marks and citation omitted). Applying the pleading rules permissively is particularly appropriate when, as here, a pro se plaintiff alleges civil rights violations. See Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008). “Even in a pro se case, however . . . threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010) (internal quotation marks and citation omitted). Nor may the Court “invent factual allegations” plaintiff has not pleaded. Id.

         II. Retaliation Under Section 1983

          Defendants argue plaintiff's amended complaint fails plausibly to allege that plaintiff was transferred in retaliation for exercising his First Amendment rights.

         The Court disagrees with respect to plaintiff's transfer from Woodbourne to Franklin, but agrees with respect to ...

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