United States District Court, S.D. New York
MEMORANDUM DECISION AND ORDER
B. DANIELS, United States District Judge
Rory Dolan brought this action under 42 U.S.C. § 1983
against five prison officials at the Fishkill and Cayuga
Correctional Facilities, where Plaintiff was previously
incarcerated. (First Am. Compl., ECF No. 59.) Plaintiff
alleged that the Defendants retaliated against him for
exercising his First Amendment rights. He also asserted
causes of action for violations of his Eighth and Fourteenth
Amendment rights. (Id. ¶¶ 91-110.)
Defendants moved to dismiss the Amended Complaint for failure
to state a claim pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure. (Defs.' Mot. to Dismiss, ECF
No. 62.) Before this Court is Magistrate Judge Gabriel
Gorenstein's January 18, 2017 Report and Recommendation
("Report, " (ECF No. 78)), recommending that
Defendants' motion be granted as to Plaintiffs claims
under the Eighth and Fourteenth Amendments and as to
Plaintiffs retaliation claims against Defendants Good and
Stallone, but denied as to Plaintiffs retaliation claims
against Defendants Connolly, Maines, and
Callender. (Report at 1.) This Court adopts that
Court "may accept, reject, or modify, in whole or in
part, the findings or recommendations" set forth within
a magistrate judge's report. 28 U.S.C. § 636(b)(1).
The Court must review de novo the portions of a
magistrate judge's report to which a party properly
objects. Id. Portions of a magistrate judge's
report to which no or merely perfunctory objections have been
made are reviewed for clear error. See Edwards v.
Fischer, 414 F.Supp.2d 342, 346-47 (S.D.N.Y. 2006).
Clear error is present only when "upon review of the
entire record, [the court is] left with the definite and firm
conviction that a mistake has been committed." Brown
v. Cunningham, No. 14-CV-3515, 2015 WL 3536615, at *4
(S.D.N.Y. June 4, 2015) (quoting United States v.
Snow, 462 F.3d 55, 72 (2d Cir. 2006)).
Judge Gorenstein advised the parties that failure to file
timely objections to the Report would constitute a waiver of
those objections on appeal. (Report at 25.) Defendants filed
timely objections to the Report. (Defs.' Objections to
the R. &. R. ("Defs.' Objs."), (ECF No.
81).) There is no clear error on the face of the
record as to those portions of the report to which no
objections were made. This Court has considered the issues
raised in the Defendants' objections and reviews de
novo the objected-to portions of the Report.
Rule 12(b)(6) motion challenges the legal sufficiency of the
claims asserted in a complaint." Trs. of Upstate
N.Y. Eng'rs Pension Fund v. Ivy Asset Mgmt., 131
F.Supp.3d 103, 119 (S.D.N.Y. 2015). In deciding a Rule
12(b)(6) motion, a court "accept[s] all factual
allegations in the complaint as true, and draw[s] all
reasonable inferences" in favor of the plaintiff.
Holmes v. Grubman, 568 F.3d 329, 335 (2d Cir. 2009)
(quoting Burch v. Pioneer Credit Recovery, Inc., 551
F.3d 122, 124 (2d Cir. 2008)). A court is "not, however,
'bound to accept conclusory allegations or legal
conclusions masquerading as factual conclusions.'"
Faber v. Metro. Life Ins. Co., 648 F.3d 98, 104 (2d
Cir. 2011) (quoting Rolon v. Henneman, 517 F.3d 140,
149 (2d Cir. 2008)). In order to survive such a motion, 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
CLAIMS UNDER THE EIGHTH AND FOURTEENTH AMENDMENTS
party objected to the Report's recommendations that
Plaintiffs claims under the Eighth and Fourteenth Amendments
be dismissed. (Report at 20-24.) Having found no clear error
as to those claims, this Court adopts the Report's
recommendations. As the Report notes, while Dolan argued in
his opposition memorandum of law that his "prolonged,
unlawful confinement in the Special Housing Unit"
violated the Eighth Amendment, the Complaint omits any
description of Dolan's conditions of confinement.
(Id. at 21-22.) Absent such allegations, the
Complaint does not meet the standard for an Eighth Amendment
claim based on prison conditions. See, e.g., Farmer v.
Brennan, 511 U.S. 825, 834 (1994).
the two Fourteenth Amendment claims asserted in Plaintiffs
memorandum of law- that Dolan's confinement in a Special
Housing Unit itself violated the Fourteenth Amendment, and
that his confinement for 12 days after his release date
violated substantive due process- Magistrate Judge Gorenstein
correctly determined that neither claim adequately states a
due process violation. (Id. at 23-24.) Further, Judge
Gorenstein properly deemed Plaintiff to have abandoned his
claim that Defendant Connolly assigned an unqualified hearing
officer, Defendant Maines, to preside over his
hearing. (Id. at 22-23.)
Report properly focused on whether the Complaint adequately
states retaliation claims against Defendants Connolly and
Good. "To state a claim for First Amendment
retaliation, a plaintiff must plausibly allege that '(1)
his speech or conduct was protected by the First Amendment;
(2) the defendant took an adverse action against him; and (3)
there was a causal connection between this adverse action and
the protected speech."' Stajic v. City of N.
Y., No. 1:16-CV-1258-GHW, 2016 WL 5717573, at *3
(S.D.N.Y. Sept. 30, 2016) (citing Matthews v. City of
N.Y., 779 F.3d 167, 172 (2d Cir. 2015)). In cases
involving prisoner retaliation claims, "[o]nly
retaliatory conduct that would deter a similarly situated
individual of ordinary firmness from exercising his or her
constitutional rights constitutes an adverse action for a
claim of retaliation." Vincent v. Sitnewski,
117 F.Supp.3d 329, 335 (S.D.N.Y. 2015) (quoting Dawes v.
Walker, 239 F.3d 489, 493 (2d Cir. 2001)). Further,
"[i]t is well settled that, in order to establish a
defendant's individual liability in a suit brought under
§ 1983, a plaintiff must show, inter alia, the
defendant's personal involvement in the alleged
constitutional deprivation." Grullon v. City of New
Haven, 720F.3dl33, 138 (2d Cir. 2013).
Report found, the protected speech element of the retaliation
analysis has been met in this case. See Dolan v.
Connolly, 794 F.3d 290, 295 (2d Cir. 2015)
("voicing grievances on behalf of a prison population as
a member of an inmate grievance body, such as the ILC"
is protected conduct) (citing Graham v. Henderson,
89 F.3d 75, 80 (2d Cir. 1996)). Further, because the
Defendants have not argued that there was a lack of causation
between Plaintiffs conduct and the alleged retaliation by
Connolly and Good, the Report properly focused on the
"adverse action" and "personal
involvement" aspects of the retaliation claim.
Report determined that the Complaint adequately stated a
First Amendment retaliation claim against Defendant Connolly
but not against Defendant Good. This Court adopts the