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holding a single search fails to rise to the level of a constitutional violation, even where the plaintiff satisfied the subjective requirement for such a claim
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No. 12 Civ. 5052 (RJS)
07-16-2013
CESAR MATEO, Plaintiff, v. C. BRISTOW, et al., Defendants.
Plaintiff is proceeding pro se. Defendants are represented by Kevin R. Harkins, Assistant Attorney General of the State of New York, 120 Broadway, 24th Floor, New York, New York 10271.
MEMORANDUM AND ORDER :
Cesar Mateo ("Plaintiff"), proceeding pro se, brings this action under 42 U.S.C. § 1983 against Corrections Officers C. Bristow ("Bristow"), E. Ramos ("Ramos"), E. Maldonado ("Maldonado"), and R. Dean ("Dean" and, collectively with Bristow, Ramos, and Maldonado, "Defendants"), alleging violations of the First, Eighth, and Fourteenth Amendments of the United States Constitution. Now before the Court is Defendants' motion to dismiss this action in its entirety. For the reasons set forth below, Defendants' motion is granted in part and denied in part.
I. BACKGROUND
A. Facts
Plaintiff, an inmate at Sing Sing Correctional Facility, alleges that Defendants violated his constitutional rights during two incidents in June 2012. The first occurred on June 16, the day Plaintiff was due to be married. (Compl. ¶ 1.) Plaintiff alleges that on that morning, as he was in his cell preparing for his wedding ceremony, Dean and Maldonado came by, ordered him out of the cell, and frisked him. (Id. ¶¶ 1-2.) The two officers then searched Plaintiff's cell. (Id. ¶ 3.) Plaintiff alleges that during the search, Maldonado told him, "This is your wedding gift, bitch!," "Now you are keeplocked," and, "This came from Sergeant Gamble." (Id. ¶ 6.) He also alleges that Dean told him, "So, you think that we are going to let you get married in this jail after all those grievances and lawsuits against officers," and that both officers made "threatening physical and facial gestures" that made Plaintiff fear for his safety. (Id. ¶¶ 5-7.) Plaintiff further alleges that the officers threatened to feed him rat poison and attempted to physically assault him. (Id. ¶ 20.) According to Plaintiff, Dean and Maldonado ended up confiscating Plaintiff's radio, headphones, masking tape, and laundry bag, as well as Plaintiff's mirror, which they broke while using it to conduct the search. (Id. ¶ 4.) Plaintiff also alleges that he was placed in keeplock confinement following the search. (Id. ¶ 16.)
All facts are drawn from the Complaint ("Compl.") and the exhibits attached thereto. In deciding this motion, the Court has also considered Defendants' Memorandum of Law in Support of Their Motion to Dismiss ("Mem."), Plaintiff's Affirmation in Opposition ("Opp'n"), and Defendants' Reply Memorandum ("Reply").
Inmates on keeplock confinement are subject to a variety of restrictions on top of those normally imposed on prisoners, including limitations on visitation, correspondence, commissary access, and property. See N.Y. Comp. Codes R. & Regs. tit. 7, § 301.6 (2013).
The second incident took place the following day, June 17. On that day, a corrections officer served him with an inmate misbehavior report, dated June 15, 2012, authored by Bristow and co-signed and witnessed by Ramos (the "Misbehavior Report"). (Id. ¶ 10.) The report alleged that, on June 15, 2012, "[Plaintiff] was playing his radio without the use of headphones" and twice refused to comply with Bristow's order to turn the radio off. (Id. ¶ 11, Ex. 2 at 1.) Plaintiff alleges that the incident described in the Misbehavior Report never actually occurred and that, at the time that incident supposedly took place, Plaintiff was asleep. (Id. ¶ 12-13.) Plaintiff was later found not guilty of the allegations in the report. (Id. ¶ 14, Ex. 2 at 2.)
B. Procedural History
Plaintiff filed his Complaint on June 26, 2012. (Doc. No. 2.) On January 11, 2013, Defendants filed their motion to dismiss. (Doc. No. 18.) Plaintiff submitted an affirmation in opposition to that motion on February 1, 2013 (Doc. No. 20), and the motion was fully briefed as of March 1, 2013 (Doc. No. 21).
II. LEGAL STANDARD
On a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the Court must accept all well-pleaded allegations contained in the complaint as true and draw all reasonable inferences in the plaintiff's favor. See ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007); Grandon v. Merrill Lynch & Co., 147 F.3d 184, 188 (2d Cir. 1998). Pro se filings in particular are read liberally and interpreted "to raise the strongest arguments that they suggest." Pabon v. Wright, 459 F.3d 241, 248 (2d Cir. 2006) (internal quotation marks omitted). To state a legally sufficient claim, a complaint must allege "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 (2009). However, a pleading that only "offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.'" Id. (quoting Twombly, 550 U.S. at 555). If the plaintiff "ha[s] not nudged [his] claims across the line from conceivable to plausible, [his] complaint must be dismissed." Twombly, 550 U.S. at 570. Although the Court construes the Complaint liberally because Plaintiff is pro se, the Complaint must still contain factual allegations that raise a "right to relief above the speculative level" in order to survive a motion to dismiss. Dawkins v. Gonyea, 646 F. Supp. 2d 594, 603 (S.D.N.Y. 2009) (quoting Twombly, 550 U.S. at 555) (internal quotation marks omitted).
III. DISCUSSION
Although the Complaint does not clearly define Plaintiff's various causes of action, the Court construes it to assert claims for (1) retaliation, in violation of the First and Fourteenth Amendments; (2) deprivation of property, in violation of the Fourteenth Amendment; (3) wrongful confinement, in violation of the Eighth and Fourteenth Amendments; and (4) harassment, in violation of the Eighth and Fourteenth Amendments. Defendants seek to dismiss these claims on the grounds that Plaintiff failed to exhaust his administrative remedies and, in any event, failed to adequately plead any cause of action. The Court will address Defendants' exhaustion argument and then proceed to consider the individual claims.
A. Exhaustion of Administrative Remedies
The Prison Litigation Reform Act of 1996 ("PLRA") prevents any prisoner from filing a § 1983 suit "until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e. The PLRA's exhaustion requirement is "mandatory," Porter v. Nussle, 534 U.S. 516, 524 (2002), and "'applies to all inmate suits about prison life,'" Johnson v. Killian, 680 F.3d 234, 238 (2d Cir. 2012) (quoting Porter, 534 U.S. at 532). "To properly exhaust a claim, a prisoner must comply with state grievance procedures." Kasiem v. Switz, 756 F. Supp. 2d 570, 575 (S.D.N.Y. 2010) (citing Jones v. Bock, 549 U.S. 199, 218 (2007)). In New York, prisoners must exhaust each level of a three-tiered grievance system. Id. (citing N.Y. Comp. Codes R. & Regs. tit. 7, § 701.5); see also Muhammad v. Pico, No. 02 Civ. 1052 (AJP), 2003 WL 21792158, at *8 (S.D.N.Y. Aug. 5, 2003) (describing New York's grievance system). "Failure to exhaust is an absolute bar to an inmate's action in federal court. " George v. Morrison-Warden, No. 06 Civ. 3188 (SAS), 2007 WL 1686321, at *2 (S.D.N.Y. June 11, 2007); accord Burgos v. Craig, 307 F. App'x 469, 470 (2d Cir. 2008) ("[Exhaustion] must be completed before suit is filed . . . .").
The Second Circuit, however, has recognized three grounds for exceptions to the exhaustion requirement. See Hemphill v. New York, 380 F.3d 680, 686 (2d Cir. 2004). First, a court must ask "whether administrative remedies were in fact 'available' to the prisoner." Id. (quoting Abney v. McGinnis, 380 F.3d 663, 667 (2d Cir. 2004)). Second, a court should inquire whether the defendants' actions estop them from raising the defense of non-exhaustion. Id. Finally, a court must determine whether any "'special circumstances' have been plausibly alleged that justify 'the prisoner's failure to comply with administrative procedural requirements.'" Id. (quoting Giano v. Goord, 380 F.3d 670, 676 (2d Cir. 2004)).
Defendants seek to dismiss Plaintiff's Complaint on the grounds that Plaintiff failed to exhaust his administrative remedies. Where nonexhaustion is clear from the face of a complaint, a court should dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6). See Kasiem, 756 F. Supp. 2d at 574; McCoy v. Goord, 255 F. Supp. 2d 233, 251 (S.D.N.Y. 2003). However, where nonexhaustion is not clear from the face of a complaint, a court should convert a Rule 12(b) motion into a Rule 56 motion for summary judgment "limited to the narrow issue of exhaustion and the relatively straightforward questions about . . . whether remedies were available, or whether exhaustion might be, in very limited circumstances, excused." McCoy, 255 F. Supp. 2d at 251. In doing so, a court must notify the parties of the conversion, id., and "afford [them] the opportunity to present supporting material," Friedl v. City of New York, 210 F.3d 79, 83 (2d Cir. 2000) (internal quotation marks omitted). Such notice and opportunity are "especially important when a plaintiff is pro se." McCoy, 255 F. Supp. 2d at 251.
Here, Plaintiff clearly filed the instant action before pursuing any administrative avenue of relief. (See Compl. at 4.) This does not mean, however, that nonexhaustion is clear on the face of the Complaint. Exhaustion is required only with respect to "such administrative remedies [as] are available," 42 U.S.C. § 1997e, and the Second Circuit has recognized that even when administrative remedies are officially available, threats by prison officials may "render[] . . . procedures that would ordinarily be available . . . effectively unavailable." Hemphill, 380 F.3d at 687 (emphasis added). Plaintiff's Complaint alleges facts that, if true, could establish that administrative remedies were functionally unavailable to him. Specifically, Plaintiff alleges that while Dean and Maldonado were tossing his cell, Dean told him, "So, you think that we are going to let you get married in this jail after all those grievances and lawsuits against officers." (Compl. ¶ 7.) When considered alongside the allegations that Maldonado and Dean threatened to poison Plaintiff, attempted to assault him, and intentionally damaged his property - all on Plaintiff's wedding day - Dean's barely veiled threat that Plaintiff would suffer harm from filing further grievances conceivably could have "deter[red] a prisoner of 'ordinary firmness' from filing an internal grievance." Hemphill, 380 F.3d at 688. Because Plaintiff's Complaint plausibly alleges that administrative remedies were unavailable, and an inmate must exhaust only available remedies, the Court finds that nonexhaustion is not clear from the face of the Complaint. Accordingly, the Court cannot resolve the issue of exhaustion on Defendants' Rule 12(b)(6) motion.
The fact that Plaintiff protested the June 16, 2012 search in multiple letters to prison officials (see Opp'n Ex. 1 (letter to Sing Sing's acting superintendent, dated June 18, 2012), Ex. 2 (same), Ex. 3 (letter to DOCS Commissioner and Associate Inspector General, dated June 19, 2012)) does not undermine his claim that Dean and Maldonado's threats deterred him from using the administrative grievance procedure. See Hemphill, 380 F.3d at 688 ("[I]t should be pointed out that threats or other intimidation by prison officials may well deter a prisoner of 'ordinary firmness' from filing an internal grievance, but not from appealing directly to individuals in positions of greater authority within the prison system, or to external structures of authority such as state or federal courts.").
The Court's inability to resolve the issue of exhaustion at this stage, however, does not preclude it from addressing Defendants' remaining arguments in favor of dismissal. Under § 1997e, a court "shall on its own motion or on the motion of a party dismiss any action brought with respect to prison conditions under [§ 1983] . . . if the court is satisfied that the action . . . fails to state a claim upon which relief can be granted." 42 U.S.C. § 1997e(c). Put more simply, a "court may consider unexhausted claims on the merits only to dismiss them . . . for failure to state a claim." McCoy, 255 F. Supp. 2d at 252. Accordingly, the Court will proceed to address Defendants' remaining arguments in support of dismissing Plaintiff's claims.
B. Retaliation
The crux of Plaintiff's allegations is that Defendants retaliated against him for filing grievances. (See Compl. ¶¶ 18-19, 21-23.) To state a claim for retaliation under the First Amendment, a plaintiff must allege "(1) that the speech or conduct at issue was protected, (2) that the defendant took adverse action against the plaintiff, and (3) that there was a causal connection between the protected speech and the adverse action." Key v. Toussaint, 660 F. Supp. 2d 518, 525 (S.D.N.Y. 2009) (quoting Gill v. Pidlypchak, 389 F.3d 379, 380 (2d Cir. 2004)). Moreover, the allegations "must support an inference that the protected conduct was a 'substantial or motivating factor for the adverse actions taken by prison officials.'" Dorsey v. Fisher, 468 F. App'x 25, 27 (2d Cir. 2012) (quoting Bennett v. Goord, 343 F.3d 133, 137 (2d Cir. 2003)). Finally, in the prison context, the Second Circuit has defined "adverse action" objectively as "retaliatory conduct ' that would deter a similarly situated individual of ordinary firmness from exercising . . . constitutional rights.'" Gill, 389 F.3d at 381 (alteration in original) (quoting Davis v. Goord, 320 F.3d 346, 353 (2d Cir. 2003)).
Defendants devote considerable space to arguing that Plaintiff "bears a 'heightened burden of proof'" on his retaliation claim. (See Mem. 10 (quoting Key, 680 F. Supp. 2d at 525).) Of course, a burden of proof is not the same as a pleading burden and thus provides little guidance as to the standard the Court should apply on Defendants' motion to dismiss. See, e.g., McKethan v. N.Y. State Dep't of Corr. Servs., No. 10 Civ. 3826 (NRB), 2011 WL 4357375, at *8 (S.D.N.Y. Sept. 16, 2011); Williams v. Goord, 111 F. Supp. 2d 280, 290 (S.D.N.Y. 2000).
It is well-established that inmates' filing of grievances is a constitutionally protected exercise of their right under the First Amendment to petition the government for the redress of grievances. See, e.g., Graham v. Henderson, 89 F.3d 75, 80 (2d Cir. 1996) (citing Franco v. Kelly, 854 F.2d 584, 589 (2d Cir. 1988)); Andino v. Fischer, 698 F. Supp. 2d 362, 382 (S.D.N.Y. 2010). Here, although Plaintiff does not identify any particular grievance as the basis for the alleged retaliation he suffered, the Complaint makes clear that in the six months leading up to the incidents at issue, Plaintiff filed at least two grievances. (See Compl. Exs. 9, 10.) Thus, Plaintiff's retaliation claim satisfies the first pleading element.
Defendants, however, argue that the Complaint fails to adequately plead either the second or third elements of a retaliation claim. Because Plaintiff's claim is based on two separate incidents - the June 16, 2012 cell search (the "Search"), involving only Defendants Dean and Maldonado, and the June 17, 2012 Misbehavior Report, involving only Defendants Bristow and Ramos - the Court will consider those incidents separately.
1. The Search
Turning first to the Search, Plaintiff complains of several adverse actions. Specifically, he alleges that, in retaliation for past grievances, Dean and Maldonado tossed his cell, "malic[iously]" damaged his personal property, confiscated various items, verbally harassed and threatened him, and wrongfully subjected him to "keeplock" confinement in his cell. (Compl. ¶¶ 2-7, 16, 20.) Although not all of these actions are sufficient to constitute an adverse action for purposes of a retaliation claim, some clearly are. For example, a plaintiff may prevail on a retaliation claim by showing, inter alia, that prison officials "intentionally or deliberately lost or destroyed his property." See Key, 660 F. Supp. 2d at 526 (internal quotation marks omitted). Similarly, verbal threats may constitute an adverse action if they are sufficiently specific and direct. See Lunney v. Brureton, No. 04 Civ. 2438 (LAK) (GWG), 2007 WL 1544629, at *23 (S.D.N.Y. May 29, 2007) ("[V]erbal threats may constitute adverse action . . . depend[ing] on their specificity and the context in which they are uttered."); see also Mateo v. Fischer, 682 F. Supp. 2d 423, 434 (S.D.N.Y. 2010) ("The less direct and specific a threat, the less likely it will deter an inmate from exercising his First Amendment rights."); compare id. (concluding that a prison official's threat to break an inmate's neck was sufficiently "direct and specific" to constitute adverse action), with Bartley v. Collins, No. 95 Civ. 10161 (RJH), 2006 WL 1289256, at *6 (S.D.N.Y. May 10, 2006) (holding that threats such as "we going to get you, you better drop the suit" do not rise to the level of adverse action). Here, Plaintiff's allegations that Dean and Maldonado intentionally slammed his radio into the ground and threatened to feed him rat poison certainly suffice to state a claim for adverse action.
For example, numerous courts in this district have held that "a cell search is insufficient to support such a claim." Mateo v. Alexander, No. 10 Civ. 8427 (LAP), 2012 WL 864805, at *4 (S.D.N.Y. Mar. 14, 2012).
Plaintiff's allegations regarding his keeplock confinement, by contrast, are a closer call. Courts in this circuit have held that such confinement may constitute adverse action, but those cases have involved confinement for a significant period of time. See, e.g., Gill, 389 F.3d at 383-84 (three weeks); Gill v. Calescibetta, No. 00 Civ. 1553 (GTS) (DEP), 2009 WL 890661, at *5 (N.D.N.Y. Mar. 31, 2009) (sixteen days); Wells v. Wade, No. 96 Civ. 1627 (SHS), 2000 WL 1239085, at *3-4 (S.D.N.Y. Aug. 31, 2000) (thirteen days). Plaintiff entirely fails to allege the length of his keeplock confinement, and so the Court finds that Plaintiff's allegation of wrongful confinement is too vague and conclusory at this stage to establish it as an adverse action.
Defendants also argue that Plaintiff fails to allege a sufficient causal connection between his filing of grievances and Dean and Maldonado's adverse actions. (Mem. 11-12; Reply 7-8.) In fact, however, Plaintiff alleges that in the course of tossing Plaintiff's cell, Dean explicitly made such a connection by saying, "So, you think that we are going to let you get married in this jail after all those grievances and lawsuits against officers." (Compl. ¶ 7.) Defendants' motion papers conspicuously ignore this allegation, and the reason is obvious: it clearly establishes the causal connection that allows Plaintiff's claim to survive Defendants' motion to dismiss. Accordingly, Defendants' motion to dismiss Plaintiff's claim of retaliation must be denied with respect to Defendants Dean and Maldonado.
2. The Report
Defendants also attack the sufficiency of Plaintiff's allegation that Bristow and Ramos retaliated against him by filing a false misbehavior report. Although filing a false misbehavior report is not itself a constitutional violation, see Boddie v. Schnieder, 105 F.3d 857, 862 (2d Cir. 1997), it may constitute an adverse action for purposes of a retaliation claim, see Pidlypchak, 389 F.3d at 384. Thus, the sole question is whether the Complaint adequately supports an inference that Plaintiff's past grievances were a "substantial or motivating factor" in Ramos and Bristow's decision to issue the Misbehavior Report. See Dorsey, 468 F. App'x at 27 (internal quotation marks omitted).
Courts may infer a retaliatory motive from a variety of factors, including the timing of the report, cf. Gayle v. Gonyea, 313 F.3d 677, 683 (2d Cir. 2002) ("We have held that the temporal proximity of an allegedly retaliatory misbehavior report to a grievance may serve as circumstantial evidence of retaliation."), and the report's falsity, see Baskerville v. Blot, 224 F. Supp. 2d 723, 732 (S.D.N.Y. 2002) (noting that "the administrative dismissal of the misbehavior report . . . weigh[s] in plaintiff's favor); see also Gayle, 313 F.3d at 683 ("A false reason for the report's issuance would support the inference that the real reason was the improper one: retaliation."). Here, the Complaint supports a plausible inference that Bristow and Ramos issued the Misbehavior Report in retaliation for Plaintiff's past grievances. Plaintiff alleges that he received the report on June 17, just one day after his confrontation with Dean and Maldonado, and that the report ultimately was dismissed. (Compl. ¶ 10, 14, Ex. 2 at 1-2.) The report's timing thus connects it to Dean and Maldonado's confrontation with Plaintiff, while the ultimate disposition of the report suggests that the allegations were false. Together, these inferences suffice to establish a plausible retaliatory motive.
Accordingly, Plaintiff has established the three elements of a retaliation claim against Bristow and Ramos, and Defendants' motion to dismiss this claim must be denied.
C. Deprivation of Property
Defendants also move to dismiss any claim for destruction of property that Plaintiff brings. As the Court previously noted, it construes the Complaint's allegations that Dean and Maldonado wrongfully damaged and confiscated Plaintiff's property as stating a claim under the Fourteenth Amendment for deprivation of property without due process of law. Such a claim, however, "cannot be brought in federal court if the relevant state court provides an adequate remedy for the deprivation of [the property at issue]." Key v. Tanoury, No. 05 Civ. 10461 (SHS), 2006 WL 3208548, at *2 (S.D.N.Y. Nov. 3, 2006) (citing Hudson v. Palmer, 468 U.S. 517, 533 (1984)); see Allen v. City of New York, No. 09 Civ. 6229 (RMB), 2011 WL 1487077, at *4 (S.D.N.Y. Mar. 16, 2011). "New York State provides such a remedy in Section 9 of the New York Court of Claims Act, which permits an inmate such as [plaintiff] to pursue his claim for deprivation of property against the State in the Court of Claims." Tanoury, 2006 WL 3208548, at *2 (citing N.Y. Ct. Cl. Act § 9). Because Plaintiff has access to this remedy, he cannot state a claim for deprivation of property pursuant to 42 U.S.C. § 1983. See id.; see also Franco v. Kelly, 854 F.2d 584, 588 (2d Cir. 1988) ("[S]ection 1983 [can]not be made a vehicle for transforming mere civil tort injuries into constitutional injuries." (internal quotation marks omitted and alteration in original)); Love v. Coughlin, 714 F.2d 207, 208-09 (2d Cir. 1983) (holding that "no civil rights action lies if the state provides an adequate compensatory remedy"). Accordingly, insofar as Plaintiff seeks to assert a constitutional claim for deprivation of property, the claim must be dismissed.
D. Remaining Claims
In addition to the foregoing claims for retaliation and deprivation of property, the Court construes Plaintiff's Complaint to assert claims for wrongful confinement, in violation of the Fourteenth Amendment, and harassment, in violation of the Eighth and Fourteenth Amendments. Although Defendants' briefing does not discuss these claims, the Court may nevertheless address their sufficiency sua sponte. See 42 U.S.C. § 1997e(c) (permitting a court "on its own motion . . . [to] dismiss any action brought with respect to prison conditions under [§ 1983] . . . if the court is satisfied that the action . . . fails to state a claim upon which relief can be granted" (emphasis added)). Doing so, the Court has no trouble concluding that those claims are insufficiently pled to survive dismissal.
1. Wrongful Confinement
The Second Circuit has recognized that confinement separate from basic imprisonment - such as keeplock - can infringe prisoners' due process rights. See, e.g., Miller v. Selsky, 111 F.3d 7, 9 (2d Cir. 1997); see generally Williams v. Keane, No. 95 Civ. 379 (JGK) (AJP), 1997 WL 527677, at *5-6 (S.D.N.Y. Aug. 25, 1997) (collecting cases). A prisoner may assert a due process claim that such confinement violates a protected liberty interest by establishing, in part, that such confinement "'create[d] an atypical and significant hardship . . . in relation to the ordinary incidents of prison life.'" Shabazz v. Bezio, No. 12-674, 2013 WL 406693, at *2 (2d Cir. Feb. 4, 2013) (quoting Arce v. Walker, 139 F.3d 329, 334 (2d Cir. 1998)). To determine whether confinement constituted an atypical and significant hardship, a court must consider "'the extent to which the conditions . . . of the segregation differ from other routine prison conditions and the duration of the . . . segregation imposed.'" Id. (quoting Davis v. Barrett, 576 F.3d 129, 133 (2d Cir. 2009)). The Complaint here, however, does not permit the Court to make this determination. For example, it alleges no facts indicating that it was atypical for a prisoner to be kept in keeplock; that Plaintiff was assigned to keeplock in a procedurally defective manner; or that the length of Plaintiff's confinement was significant. Because Plaintiff makes no allegation that his keeplock confinement was atypical or significant, the Court must dismiss this claim.
2. Harassment
Plaintiff's Eighth Amendment claim is similarly inadequate. The Eighth Amendment's prohibition of cruel and unusual punishment bars cell searches that "lack[] any legitimate penological interest and [are] intended solely to harass." Jones v. Harris, 665 F. Supp. 2d. 384, 395 (S.D.N.Y. 2009). An Eighth Amendment claim arising from cell searches comprises a subjective element and an objective one. The former requires the prisoner to "assert facts indicating that the responsible prison official had a sufficiently culpable state of mind amounting to at least deliberate indifference to his constitutional rights." Id. The latter requires that "[t]he deprivation alleged by the prisoner . . . be sufficiently serious in objective terms such that it suggests denial of the minimal civilized measure of life's necessities." Id.
Here, Plaintiff satisfies the subjective element of an Eighth Amendment claim by alleging that Dean and Maldonado made several statements evincing their intent to harass and retaliate. See id. Plaintiff fails to satisfy the objective element, however, because he does not allege that Dean and Maldonado caused any injuries that are cognizable under the Eighth Amendment. Plaintiff may not have welcomed their search of his cell, but he offers no allegation that it represented a departure from "the ordinary course of prison life." Id. Indeed, given that the court in Jones found three searches over six weeks insufficient to establish cruel and unusual punishment, the one search to which Plaintiff was subjected hardly rises to the level of a constitutional violation. See id. Furthermore, to the extent Plaintiff bases his claim on the alleged destruction and confiscation of his property, it cannot be argued that deprivation of a radio, roll of tape, laundry bag, and mirror constitutes a "denial of the minimal civilized measure of life's necessities." Id.; see Wilson v. Seiter, 501 U.S. 294, 305 (1991) (holding that an Eighth Amendment claim for inadequate prison conditions must allege at least one "specific deprivation of a . . . human need"); Ford v. Phillips, No. 05 Civ. 6646 (NRB), 2007 WL 946703, at *9 (S.D.N.Y. Mar. 27, 2007) ("[A]s a matter of law, minor and temporary deprivations of property . . . do not violate the Eighth Amendment."). Accordingly, Plaintiff fails to state an Eighth Amendment claim for harassment.
To the extent Plaintiff intends to assert an Eighth Amendment harassment claim based on the Misbehavior Report, such a claim also would fail. It is well-established that a "a prison inmate has no general constitutional right to be free from being falsely accused in a misbehavior report." Boddie, 105 F.3d at 862; see also Mateo, 682 F. Supp. 2d at 432 (collecting cases).
E. Compensatory Damages
Defendants also move to strike any prayer for damages for emotional harm that Plaintiff wishes to assert. (See Compl. § V (requesting "[j]udgement [sic] in my favor for damages"); Mem. 14.). Under 42 U.S.C. § 1997e(e), "[n]o Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury." 42 U.S.C. § 1997e(e); see Thompson v. Carter, 284 F.3d 411, 417 (2d Cir. 2002) (interpreting § 1997e(e) as barring a plaintiff from "recover[ing] damages for mental or emotional injury for a constitutional violation in the absence of a showing of actual physical injury"). In this case, Plaintiff clearly fails to allege any physical injury. Accordingly, to the extent Plaintiff seeks damages for any emotional injuries Defendants caused, such damages are unavailable to him.
F. Qualified Immunity
Finally, in their Reply Memorandum, Defendants for the first time assert that Dean and Maldonado are entitled to qualified immunity in connection with their search of Plaintiff's cell. (Reply 8-9.) It is well established, however, that a court should not "consider arguments that are raised for the first time in a reply brief." Clubside, Inc. v. Valentin, 468 F.3d 144, 159 n.5 (2d Cir. 2006); see ABN Amro Verzekeringen BV v. Geologistics Ams., Inc., 485 F.3d 85, 97 n.12 (2d Cir. 2007) ("We decline to consider an argument raised for the first time in a reply brief. "); Patterson v. Balsamico, 440 F.3d 104, 113 n.5 (2d Cir. 2006) ("This Court generally will not consider arguments raised for the first time in a reply brief."); Fisher v. Kanas, 487 F. Supp. 2d 270, 278 (E.D.N.Y. 2007) (finding that an argument raised for the first time in a reply brief was waived); Playboy Enter. Inc. v. Dumas, 960 F. Supp. 710, 720 n.7 (S.D.N.Y. 1997) ("Arguments made for the first time in a reply brief need not be considered by a court.") (collecting cases). Defendants offer no reason why that rule should not apply here, and the Court perceives none. Accordingly, because Defendants failed to raise qualified immunity in their initial brief, the Court deems that argument waived for purposes of this motion and will not consider it. See Rowley v. City of New York, No. 00 Civ. 1793 (DAB), 2005 WL 2429514, at *5 (S.D.N.Y. Sept. 30, 2005) (declining to consider a qualified immunity argument raised for the first time in a reply brief).
Furthermore, even if they had not waived that argument, Dean and Maldonado still would not be entitled to qualified immunity at this stage. Defendants contend that qualified immunity should bar Plaintiff from bringing any claims based on the cell search because such searches are not a clearly established basis for First, Fourth, Eighth, or Fourteenth Amendment claims, (Reply 8-9.) Even if that is true as a legal matter, however, Plaintiff alleges much more than that Dean and Maldonado simply searched his cell. He accuses them of destroying his property, threatening him. and attempting to assault him. (See Compl, ¶¶ 3-7, 20.) Defendants' suggestion that this case is only about a cell search simply mischaracterizes Plaintiff's allegations and thus fails to articulate a basis for dismissing this action on immunity grounds.
IV. CONCLUSION
For the foregoing reasons, the Court grants in part and denies in part Defendants' motion to dismiss. Specifically, it dismisses Plaintiff's deprivation of property, wrongful confinement, and harassment claims. The Court also strikes any prayer for compensatory relief for any emotional harm that Plaintiff allegedly suffered. The Court's dismissal of Plaintiff's claims and prayer for compensatory damages, however, is without prejudice to filing an amended complaint. See Shabazz, 2013 WL 406693, at *1 ("[C]ourts should not dismiss a pro se complaint without granting the plaintiff at least one opportunity to amend." (citing Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000))). Accordingly, IT IS HEREBY ORDERED THAT Plaintiff shall submit any amended complaint by August 16, 2013. The Court reminds Plaintiff that any amended complaint must repeat all prior allegations from the Complaint necessary to state the relevant claims.
As to the remaining issues, the Court denies Defendants' motion to dismiss the Complaint on nonexhaustion grounds and to dismiss the retaliation claim against all Defendants. As a result, this case must proceed to discovery on the narrow issues of (1) whether Plaintiff's nonexhaustion of administrative remedies is excused as to each of the Defendants, and (2) Plaintiff's retaliation claim. In light of Plaintiff's incarcerated status, IT IS HEREBY ORDERED THAT this action is referred to the Honorable Gabriel W. Gorenstein, Magistrate Judge, for general pre-trial supervision and dispositive motions, as set forth in the accompanying referral order. SO ORDERED
/s/_________
RICHARD J. SULLIVAN
United States District Judge Dated: July 16, 2013
New York, New York
* * *
Plaintiff is proceeding pro se.
Defendants are represented by Kevin R. Harkins, Assistant Attorney General of the State of New York, 120 Broadway, 24th Floor, New York, New York 10271.
A copy of this order has been sent to:
Cesar Mateo 01A4789 Woodbourne Correctional Facility 99 Prison Road, PO Box 1000 Woodbourne, NY 12788