United States District Court, S.D. New York
OPINION AND ORDER
Vincent L. Briccetti United States District Judge
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
pending is defendants' motion to dismiss the amended
complaint pursuant to Rules 12(b)(1) and 12(b)(6). (Doc.
reasons set forth below, the motion is GRANTED in part and
DENIED in part.
Court has subject matter jurisdiction pursuant to 28 U.S.C.
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.
23, 2013, plaintiff was granted an
“area-of-preference” transfer from Eastern
Correctional Facility to Woodbourne. (Am. Compl. at
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).
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).
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.
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).
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.
October 7, 2014, plaintiff was transferred to Franklin.
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.
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.
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).
to the New York State Department of Corrections and Community
Supervision website, plaintiff was released to parole on
September 8, 2016.
Standard of Review
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
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
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.
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.
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.
Court disagrees with respect to plaintiff's transfer from
Woodbourne to Franklin, but agrees with respect to