United States District Court, S.D. New York
OPINION AND ORDER
S. ROMAN, UNITED STATES DISTRICT JUDGE.
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
incident that is central to this case occurred while
Plaintiff was an inmate at Sing Sing Correctional Facility
("Sing Sing"). (See Compl. at 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.
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.
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).
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).
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
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. ...