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Lewis v. Annucci

United States District Court, S.D. New York

March 2, 2018

MICHAEL LEWIS, Plaintiff,
v.
COMMISSIONER ANNUCCI, et al., Defendants.

          OPINION & ORDER

          NELSON S. ROMAN, United States District Judge

         Pro Se Plaintiff Michael Lewis ("Plaintiff5) brought this action in forma pauperis against Defendants Commissioner Annucci ("Annucci"), Superintendent Perez ("Perez"), Lt. Robert Oliver ("Oliver"), and Deputy Superintendent for Security Cavaleri ("Cavaleri"), employees of the New York State Department of Corrections and Community Supervision ("DOCCS")[1] for alleged constitutional violations pursuant to 42 U.S.C. § 1983, alleging violations of his Eighth Amendment rights.

         Defendants Annucci, [2] Perez, Oliver, and Cavaleri move to dismiss the Amended Complaint as against them, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (See EFC No. 62, "Defendants' Motion.") For the reasons stated below, Defendants' motion is GRANTED.

         BACKGROUND

         The following facts, which are taken from the Amended Complaint, are construed in the light most favorable to Plaintiff, as he is the non-moving party.[3] See, Kleinman v. Elan Corp., 706 F.3d 145, 152 (2d Cir. 2013); Gonzalez v. Hasty, 651 F.3d 318, 321 (2d Cir. 2011).

         Plaintiff, an inmate at Downstate Correctional Facility, states that, at approximately 10:50 a.m. on November 30, 2015, Plaintiff was involved in two separate incidents involving CO. Florio, CO. Fuentes and CO. DiMaggio, in the presence of Lt. Limaye. (See Am. Compl. at 1.) While Plaintiff was waiting in the bathroom next to an inmate holding pen, CO. Florio and CO. DiMaggio restrained Plaintiffs arms while CO. Fuentes, who was behind Plaintiff, pulled down Plaintiffs pants and undershorts. (Id.) CO. Fuentes then inserted what Plaintiff felt to be a steal bar into his anus three times. (Id.) While this was occurring, Plaintiff was also repeatedly punched in his stomach and side by the correction officers. (Id.) Furthermore, the correction officers threatened Plaintiffs life if he was to tell anyone about the incident. (Id.) The object that appeared to be a steal bar was then again inserted into Plaintiffs anus two additional times. (Id.) Plaintiff was then punched in the back of his head. (Id.) Lt. Limaye was present during both incidents and eventually told the correction officers to stop. (Id.)

         STANDARD ON A MOTION TO DISMISS

         On a Rule 12(b)(6) Motion to Dismiss, the Court must accept all facts set forth in the complaint as true and draw all reasonable inferences in Plaintiffs favor. See, e.g., Burch v. Pioneer Credit Recovery, Inc., 551 F.3d 122, 124 (2d Cir. 2008) (per curiam). A claim will survive a Rule 12(b)(6) motion, however, only if the plaintiff alleges facts sufficient "to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (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. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). A plaintiff must show "more than a sheer possibility that a defendant has acted unlawfully." (Id.) Although "a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiffs obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Starr v. Sony BMG Music Entm't, 592 F.3d 314, 321 (2d Cir. 2010). A court should accept non-conclusoiy allegations in the complaint as true and draw all reasonable inferences in the plaintiffs favor. Ruotolo v. City of N.Y., 514 F.3d 184, 188 (2d Cir. 2008). If the plaintiffs pleadings "have not nudged [his or her] claims across the line from conceivable to plausible, [the] complaint must be dismissed." Twombly, 550 U.S. at 570.

         "Pro se complaints are held to less stringent standards than those drafted by lawyers, even following Twombly andlgbal." Thomas v. Westchester, No. 12 CV 6718 (CS), 2013 WL 3357171, at *2 (S.D.N .Y. July 3, 2013).[4] The court should interpret pro se complaints "to raise the strongest arguments that they suggest." Paboti v. Wright, 459 F.3d 241, 248 (2d Cir. 2006). Even so, "pro se plaintiffs . . . cannot withstand a motion to dismiss unless their pleadings contain factual allegations sufficient to raise a right to relief above the speculative level." Jackson v. N. Y.S. Dep't of Labor, 709 F.Supp.2d 218, 224 (S.D.N.Y.2010) (internal quotation marks omitted). Dismissal is justified where "the complaint lacks an allegation regarding an element necessary to obtain relief, " and the "duty to liberally construe a plaintiffs complaint [is not] the equivalent of a duty to re-write it." Geldzahler v. N.Y. Med. Coll, 663 F.Supp.2d 379, 387 (S.D.N.Y. 2009) (internal citations and alterations omitted).

         DISCUSSION

         A. §1983 Claims

         The Complaint appears to allege a constitutional claim for excessive force. Although Plaintiff has not specified a statutory basis for his claim, the Court analyzes claims of this type under 42 U.S.C. § 1983. To state a § 1983 claim, a plaintiff must allege (1) "that the defendants have deprived him [or her] of a right secured by 'the Constitution and laws' of the United States" and (2) "that the defendants acted under 'color of state law' in infringing his [or her] constitutionally protected right." Stevens v. Dutchess County, N. Y, 445 F.Supp. 89, 91 (S.D.N.Y. 1977) (quoting Van Horn v. Lukhard, 392 F.Supp. 384, 386 (E.D. Va. 1975)).

         B. Failure to State a Claim

         Individual defendants are liable for § 1983 violations only if they were "personally involved" in the constitutional deprivations. See Wright v. Smith,21 F.3d 496, 501 (2d Cir. 1994); Grullon v. City of New Haven, 720 F.3d 133, 138-39 (2d Cir. ...


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