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Dozier v. Franco

United States District Court, S.D. New York

June 22, 2018

GARY LEE DOZIER, JR., Plaintiff,
v.
C.O. FRANCO, Defendants.

          OPINION AND ORDER

          NELSON S. ROMAN, UNITED STATES DISTRICT JUDGE.

         Plaintiff Gary Lee Dozier, Jr. ("Plaintiff"), proceeding pro se, commenced this action on May 4, 2017, pursuant to 42 U.S.C. § 1983 for alleged Eighth Amendment violations, (see Complaint ("Compl."), (ECF No. 1)), against Defendant CO. Franco ("Franco" or "Defendant"). Presently before the Court is Defendant's motion to dismiss Plaintiffs Complaint for failure to state a cause of action and for sovereign immunity pursuant to Federal Rules of Civil Procedure 12(b)(6) and 12(b)(1), respectively ("Defendant's Motion"). (See Defendant's Brief in Support of his Motion to Dismiss ("Def Br.") (ECF No. 14).) Plaintiff has failed to oppose Defendant's Motion. The Court deems the motion fully submitted and renders the following decision on the merits. For the following reasons, Defendant's Motion is GRANTED.

         FACTUAL BACKGROUND

         The incident that is central to this case occurred while Plaintiff was an inmate at Sing Sing Correctional Facility ("Sing Sing").[1] (See Compl. at 2.)[2] On January 22, 2017, at approximately 9:30 a.m., before walking to "keeplock recreation", Plaintiff was subjected to a frisk by a corrections officer. (Id. at 3.) All inmates must be frisked before they enter “keeplock recreation.” (Id.) Franco performed the frisk of Plaintiff, and “squeezed, grabbed, and fondled [Plaintiff's] genital area twice.” (Id.) While he was doing so, he attempted to loosen Plaintiff's “belt and go threw [sic] [his] boxers to do it again.” (Id.) Plaintiff contends that as a result of this incident, he was given pain medication, but suffers “constant pain in [his] genital area” and “a permanent phobia of being pat frisked.” (Id.) Plaintiff alleges no other facts.

         LEGAL STANDARD

         I. 12(b)(6)

         Dismissal is proper on a 12(b)(6) motion to dismiss unless the complaint “contain[s] sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The critical inquiry is whether the plaintiff has pled sufficient facts to nudge the claims “across the line from conceivable to plausible.” Twombly, 550 U.S. at 555.

         Courts must construe pro se pleadings in a particularly liberal fashion, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret them “to raise the strongest arguments that they suggest, ” Harris v. City of N.Y., 607 F.3d 18, 24 (2d Cir. 2010) (internal quotations and citation omitted). Nevertheless, a pro se plaintiff's pleading must contain factual allegations that sufficiently “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), and the Court's duty to construe the complaint liberally is not “the equivalent of a duty to re-write it, ” Geldzahler v. New York Medical College, 663 F.Supp.2d 379, 387 (S.D.N.Y. 2009).

         II. 12(b)(1)

         Without subject matter jurisdiction, the Court is devoid of the “power to adjudicate the merits of the case.” Carter v. HealthPort Tech., LLC, 822 F.3d 47, 55 (2d Cir. 2016); see also Morrison v. Nat'l Australia Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008), aff'd, 561 U.S. 247 (2010); Alliance for Envt'l Renewal, Inc. v. Pyramid Crossgates Co., 436 F.3d 82, 87-88 (2d Cir. 2006). If an official or entity is entitled to sovereign immunity, a court has no subject matter jurisdiction to hear the case. See Cooper v. N.Y. State Dep't of Mental Health, No. 01-CV-943 (AGS), 2001 WL 456348, at *1 (S.D.N.Y. May 1, 2001); see also Trotman v. Palisades Interstate Park Comm'n, 557 F.2d 35, 37-38 (2d Cir. 1977).

         DISCUSSION

         I. Sovereign Immunity

         Defendant moves to dismiss all claims alleged against him in his official capacity as barred by sovereign immunity. (See Def. Br. at 4-5.) Plaintiff's Complaint does not specify whether he is suing Defendant in his individual capacity only, or his individual and official capacity. (See generally Compl.) To the extent Plaintiff's claims are asserted against Defendant in his official capacity, they are barred by the doctrine of sovereign immunity.

         It is axiomatic that a state is immune from suit in federal court, absent abrogation by Congress. See Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54-56 (1996); Dube v. State Univ. of New York, 900 F.2d 587, 594 (2d Cir. 1990). This immunity extends to agents and employees of DOCCS, as they are considered “arms of the state.” Dube, 900 F.2d at 594-95; see also Matteo v. Perez, No. 16-CV-1837(NSR), 2017 WL 4217142, at *7 (S.D.N.Y. Sept. 19, 2017). Section 1983 has not carved out an exception to the doctrine of sovereign immunity, thus claims against state agents in their official capacity pursuant to Section 1983 are ripe for dismissal. Matteo, 2017 WL 4217142, at *7 (citing Reynolds v. Barrett, 685 F.3d 193, 204 (2d Cir. 2012) and Koehl v. ...


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