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dismissing an access-to-courts claim because " plaintiff's conclusory allegations that the defendants caused him irreparable harm in his ability to litigate . . . state and federal claims . . . or that the loss of [his] legal materials caused him irreparable harm to exercise his rights of access to the courts are simply insufficient to state a claim"
Summary of this case from Little v. Mun. Corp.Opinion
No. 99 Civ. 4933 (GBD).
December 10, 2004
OPINION
Pro se plaintiff brings suit alleging violations of his constitutional rights under the First, Fifth, Sixth, Eighth, and Fourteenth Amendments. All defendants move to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). For the reasons stated below, defendants' motion to dismiss is granted.
BACKGROUND
Plaintiff Jonathan Odom, currently an inmate at Attica Correctional Facility, brings this pro se action alleging violations of various constitutional rights against 80 defendants. Plaintiff commenced his initial action on July 9, 1999, amended that complaint on September 9, 1999 and submitted the current Second Amended Complaint ("Complaint") on May 22, 2000. The gravamen of plaintiff's complaint is that the defendants violated his constitutional rights in retaliation for having filed a federal civil rights action and grievances against the prison system, its officers, and its administrators. Plaintiff alleges that the defendants transferred him to numerous correctional facilities, assaulted him, initiated unwarranted disciplinary proceedings against him; prevented him from presenting a defense during these proceedings; refused to review his appeals of the adverse determinations from these disciplinary hearings; obstructed his access to the court system and to his legal materials; and denied him medical care "in retaliation for . . . having exercised his constitutional right to file federal and state lawsuits and grievances against named defendants and/or unconstitutional prison conditions and treatment." Id. at 30, ¶ 92. Plaintiff further claims that an unofficial policy exists within the DOCS to improperly investigate harassment complaints. Id. at 15-16, ¶¶ 40-49. This policy was designed to "discredit all prisoners' claims of staff misconduct" and to "prepare all DOCS' reports in a manner which favorably establishes the credibility of the facility and department." Id. at 7, ¶ 19. Lastly, plaintiff challenges the DOCS grievance procedure, alleging that numerous defendants "were not providing sufficient office time for inmate grievance representatives/clerks to meaningfully and effectively perform their official responsibilities and duties." Id. at 16, ¶ 50. Plaintiff alleges that this practice deprived "inmates of a fair opportunity to have their grievances timely and impartially investigated, processed and heard at all stages." Id. at 32, ¶ 96. These actions allegedly infringed upon plaintiff's First, Sixth, Eighth, and Fourteenth Amendment rights in violation of 42 U.S.C. § 1983 ("§ 1983").
Plaintiff alleges that he has been an inmate at the following correctional facilities: Sing Sing; Clinton; Great Meadows; Attica; Five Points; and Southport. It is undisputed that plaintiff was transferred to various correctional institutions between July 9, 1999 and May 22, 2000.
Although plaintiff's complaint also states a Fifth Amendment claim, plaintiff has not identified which of his many causes of action state a claim under the Fifth Amendment. Neither has plaintiff identified what conduct was committed by any of the defendants in violation of the Fifth Amendment. Plaintiff's complaint, outside of the first paragraph entitled "Jurisdictional Statement" does not again mention the Fifth Amendment and a review of plaintiff's complaint shows no cognizable Fifth Amendment claim. Accordingly, plaintiff's Fifth Amendment claim is dismissed.
In their motion to dismiss, defendants first argue that plaintiff's claims are barred by the statute of limitations; that plaintiff has failed to allege that he exhausted his administrative remedies; and that plaintiff's claim for money damages is barred under the Prison Litigation Reform Act (" PLRA") for failure to allege physical injury. Defendants also argue that plaintiff's complaint substantively fails to state a cognizable retaliation claim, a violation of due process claim, an excessive use of force claim, or a medical indifference claim. Defendants additionally argue that plaintiff does not demonstrate a claim for denial of access to the courts, nor does plaintiff allege the requisite personal involvement in the asserted constitutional violations.
Plaintiff filed his original complaint on July 9, 1999. Defendants argue, therefore, that any cause of action which stems from any alleged occurrence prior to July 9, 1996 is time-barred. Although defendants are correct that the statute of limitations for § 1983 actions in New York is three years, see Harris v. City of New York, 186 F.3d 243, 247-48 (2d Cir. 1999) (establishing that the statute of limitations for § 1983 claims under New York law is three years), defendants do not specify which of plaintiff's claims should be dismissed. A review of plaintiff's complaint, however, uncovers only one allegation of conduct occurring prior to July 9, 1996. Plaintiff alleges that "[o]n February 19, 1996, the defendant Keane sought to transfer plaintiff' to a different correctional facility in violation of his constitutional rights. Complaint at 8, ¶ 22-23. Defendants' motion to dismiss plaintiff's claim arising from this alleged transfer is therefore granted.
Defendants further assert that plaintiff's complaint must be dismissed because he fails to plead that he exhausted the administrative grievance process in pursuit of his claims. Defendants subsequently withdrew this argument as applied solely to plaintiff's claims of excessive force in a letter dated August 29, 2000. "In general, exhaustion of state remedies is not a prerequisite to an action under § 1983." Heck v. Humphrey, 512 U.S. 477, 480, 114 S.Ct. 2364, 2369, 129 L.Ed.2d 383 (1994). Pursuant to 42 U.S.C. § 1997e(a), however, Congress has required inmates seeking to maintain actions challenging prison conditions under Section 1983 to first exhaust all available administrative remedies. Enacted as part of the Prisoner Litigation Reform Act of 1996 (" PLRA"), exhaustion is a mandatory requirement. See Booth v. Churner, 532 U.S. 731, 739, 121 S.Ct. 1819, 1824, 149 L.Ed.2d 958 (2001). Plaintiff's complaint is devoid of any allegation that he exhausted the administrative grievance process in pursuit of his claims. Although the Court dismisses plaintiff's claims on other grounds, they are also dismissed for failing to allege that he sufficiently exhausted his administrative remedies.
Defendants additionally argue, in response to plaintiff's request for punitive damages, that the Prison Litigation Reform Act bars plaintiff from seeking monetary damages for alleged constitutional violations where the inmate-plaintiff does not suffer physical injury. As plaintiff's complaint is devoid of any allegation of physical injury, plaintiff's request for punitive damages is denied. See 42 U.S.C. § 1997e(e).
Defendants also argue that plaintiff has insufficiently pled a conspiracy claim under 42 U.S.C. § 1985. Plaintiff's complaint, even liberally construed, does not allege any conspiracy under 42 U.S.C. § 1985. If plaintiff intended to present a conspiracy claim under § 1985, his complaint insufficiently alleges a conspiracy and such a claim must be dismissed.
ANALYSIS
I. Standard of Law Applied to Motions to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(6)Federal Rule of Civil Procedure 12(b)(6) provides that in response to a claim for relief in a pleading, a party may make a motion to assert the defense of "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). In deciding a motion to dismiss, a court should liberally construe the complaint, "`accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in the plaintiff's favor.'" Kforce Inc. v. Alden Personnel, Inc., 288 F.Supp.2d 513, 515-16 (S.D.N.Y. 2003) (quoting Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). "`The issue to consider is not whether the plaintiff will ultimately prevail but whether [he] is entitled to offer evidence to support the claims.'" New v. Ashcroft, 293 F.Supp.2d 256, 257 (E.D.N.Y. 2003) (quoting Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir. 1995)). The complaint may only be dismissed if plaintiff "can prove no set of facts in support of his claim which would entitle him to relief." Id. Moreover, where plaintiff is proceeding pro se, the Court should hold his submissions to a less stringent standard than had the pleadings been drafted by an attorney. Id.
II. 42 U.S.C. § 1983
To maintain a cause of action under 42 U.S.C. § 1983, plaintiff must allege: (i) a violation of a federal statute or constitutional right and (ii) must show that the alleged deprivation was committed by a person "acting under the color of state law."West v. Atkins, 487 U.S. 42, 48 (1988), 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). Plaintiff asserts the following claims under § 1983: violations of his First Amendment right to free speech in his first cause of action; violations of his constitutional rights caused by an unofficial DOCS policy in his second cause of action; violations of his due process rights and access to the courts under the Fourteenth Amendment in his first, third, fourth and sixth causes of action; and violations of his right to be free from cruel and unusual punishment under the Eighth Amendment in his fifth cause of action.
Plaintiff also brings a claim for violation of his rights under the Sixth Amendment. Complaint at 2. However, given that plaintiff's complaint does not proffer any allegations that could support a cause of action under the Sixth Amendment, this claim must also be dismissed.
A. Retaliation Claims
Plaintiff's retaliation claim focuses on conduct which he alleges was performed by specific individuals "in retaliation for . . . having exercised his constitutional right to file federal and state lawsuits and grievances against named defendants and/or unconstitutional prison conditions and treatment." Id. at 30, ¶ 92. At the center of plaintiff's retaliation claim are the numerous transfers he received to various correctional facilities. Plaintiff alleges that these transfers were initiated and illegally justified by numerous, unwarranted disciplinary actions. Specifically, plaintiff asserts that defendants relied on "dismissed or expunged misbehavior reports," false testimony, and documentary evidence which were "legally insufficient, incomplete and/or altered to sustain the charges against plaintiff as justification for transferring him. Complaint at 8, 10 ¶¶ 23, 29-30. During the disciplinary hearings to address these misbehavior reports, plaintiff alleges that he was prevented from presenting a defense and that the officers who conducted the various hearings relied on false and legally insufficient testimony and other evidence in sustaining the charges against him. Lastly, plaintiff claims that his administrative appeals of the adverse decisions that came from these proceedings were inadequately reviewed. Complaint at 8-11 ¶¶ 22-32.
Plaintiff further alleges that he was twice assaulted by different officers in retaliation for his filing of lawsuits and grievances. Plaintiff alleges that subsequent to the first assault by defendant Koupash, the defendant filed a false misbehavior report to justify his assault. At the hearing concerning this misbehavior report, plaintiff alleges that the officer provided false testimony and that evidence which could have exonerated him was destroyed. Plaintiff also claims that the defendant who conducted the hearing prevented plaintiff from presenting a defense and relied on legally insufficient, incomplete and altered evidence. Subsequent to the hearing, plaintiff alleges that defendants insufficiently reviewed his administrative appeals. Complaint at 11-13, ¶¶ 33-37.
Plaintiff alleges that on December 7, 1999, defendant Koupash assaulted him prior to transferring plaintiff from Great Meadow and that defendant Weaver assaulted him on December 18, 1997 following plaintiff's transfer from Clinton to Great Meadows. Complaint at 11, 22, ¶¶ 33, 68. Although plaintiff does not allege that these assaults violated his Eighth Amendment rights, such an alleged violation would also fail to state a claim. To prevail on an excessive force claim, a plaintiff first must show that the alleged use of force is "objectively actionable." United States v. Walsh, 194 F.3d 37, 50 (2d Cir. 1999). A claim of excessive force may be established even if the victim does not suffer serious or significant injury if plaintiff can demonstrate that the amount of force used is more than de minimus, or otherwise involves force "repugnant to the conscience of mankind." Id. at 48. Plaintiff makes no such allegation. Second, a plaintiff alleging excessive force must also meet a subjective requirement; he must show that the defendant acted wantonly with a "sufficient culpable state of mind." Id. at 50. Where a state official is accused of using excessive force against an inmate, the inquiry turns on "whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm." Id. at 48-49. Plaintiff's complaint is also devoid of such an allegation.
Plaintiff makes similar allegations regarding another misbehavior report, dated March 1, 2000. Plaintiff asserts that the misbehavior report was unfounded, that the officer who issued it provided false testimony at his hearing, and that the official who conducted the hearing relied on legally insufficient evidence as well as false testimony and prevented plaintiff from presenting a defense. Complaint at 12-13, ¶¶ 37-39. Finally, plaintiff alleges that he was denied medical care and that the defendants obstructed his access to the court system and to his legal materials in retaliation for his lawsuits and grievances.
Defendants argue that plaintiff has offered nothing beyond "bald allegations of general misconduct." Defendants' Brief at 23. They assert that plaintiff has failed to ascribe specific conduct to specific defendants and that plaintiff's allegations that he was retaliated against are "wholly vague and conclusory." Defendants' Brief at 23-24. Defendants further argue that plaintiff's claims regarding his inability to file grievances or lawsuits is belied by "plaintiff's admission in the complaint that, despite his troubles, he pursued numerous grievances and lawsuits." Id. at 24. Lastly, defendants stress that plaintiff's allegations of retaliatory false misbehavior reports cannot sustain a claim of a constitutional violation as "a prison inmate has no constitutional right to be free from being falsely accused in a misbehavior report — there must be more, such as retaliation against the prisoner for exercising a constitutional right." Id.
Defendants do not address plaintiff's retaliation claim as a First Amendment claim, but rather as a general action under § 1983. Defendant's Brief at 22. However, because plaintiff specifically invokes the First Amendment in page two of the Complaint and then alleges that defendants have acted "in retaliation for plaintiff having exercised his constitutional right to file federal and state lawsuits and grievances against [them]," plaintiff's claim will be analyzed as a First Amendment retaliation claim. Complaint at 2; Complaint at 30, ¶ 92.
The First Amendment provides that Congress shall make no law "abridging the freedom of speech" or abridging the right "to petition the Government for a redress of grievances." U.S. CONST. amend. I. In order to establish that defendants have retaliated against plaintiff in violation of his First Amendment rights, plaintiff must demonstrate "(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." Scott v. Coughlin, et al., 344 F.3d 282, 287 (2d Cir. 2003); see also Nicholas v. Davis et al., 74 Fed.Appx. 131, 134 (2d Cir. 2003). The allegations advanced must be non-conclusory. Due to the potential for fabrication of retaliation claims, courts have required a "higher level of detail in [the] pleading[s]."Johnson v. Eggersdorf et al., 8 Fed.Appx. 140 (2d Cir. 2001) (quoting Gill v. Mooney, 824 F.2d 192, 194 (2d Cir. 1987));see also Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995). Furthermore, courts, recognizing that claims of retaliation by prisoners can be easily abused, have held that a retaliation claim that is wholly conclusory can be dismissed on the pleadings alone. See Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996).
Plaintiff meets the first prong by alleging that the filing of grievances and lawsuits is constitutionally protected. The Second Circuit has held that "retaliation against a prisoner for pursuing a grievance violates the right to petition government for the redress of grievances guaranteed by the First and Fourteenth Amendments and is actionable under § 1983." Graham v. Henderson, 89 F.3d 75, 80 (2d Cir. 1996) (citing Franco v. Kelly, 854 F.2d 584 (2d Cir. 1988)). The right to petition the government for redress of grievances includes the right to file lawsuits as well as the right to pursue administrative grievances. Franco, 854 F.2d at 589. Indeed, the right to petition government for redress of grievances is "among the most precious of the liberties safeguarded by the Bill of Rights." United Mine Workers v. Illinois State Bar Ass'n, 389 U.S. 217, 222, 88 S.Ct. 353, 19 L.Ed.2d 426 (1967). Plaintiff's claim, therefore, is clearly a protected right of redress under the First Amendment.
Plaintiff additionally satisfies the second prong by alleging adverse action by the defendants against him. Specifically, plaintiff alleges that in retaliation for his filing of lawsuits and grievances, he was transferred from one correctional facility to another, he was assaulted, he was denied medical care, false charges and misbehavior reports were filed against him, at the hearing for those reports he was prevented from asserting a defense, subsequent to those hearings his appeals of adverse decisions were inadequately addressed, and finally, he was prevented from having access to the courts and to his legal materials.
Courts have found conduct to constitute adverse action when "it would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights."Baskerville v. Blot 224 F.Supp.2d 723 (S.D.N.Y. 2002).
Plaintiff alleges that he was transferred from Sing Sing ("Sing Sing") Correctional Facility to Clinton Correctional Facility ("Clinton"); from Clinton to Great Meadow Correctional Facility ("Great Meadow") and from Great Meadow to Attica Correctional Facility ("Attica"). Complaint at 9, ¶ 24. Furthermore, although it is has been firmly established that an inmate has no right to be in a particular correctional facility, otherwise constitutional acts may be actionable if carried out in retaliation for plaintiff's exercise of First Amendment rights.See Soto v. Iacavino, 2003 WL 21281762 (S.D.N.Y. 2003).
A claim of retaliatory assault sufficiently describes such adverse conduct that would deter a reasonable inmate from engaging in activity protected by the First Amendment. Rivera v. Goord 119 F.Supp.2d 327, 340 (S.D.N.Y. 2000) (finding that defendants' alleged conduct, which included retaliatory assault, were "likely to `chill a person of ordinary firmness from continuing to engage' in activity protected by the First Amendment). Id.
Plaintiff, however, fails to carry his burden for the third prong. In a retaliation claim, a plaintiff has the initial burden of showing that defendants' actions are based on an improper motive. Scott, 344 F.3d at 288. Moreover, because claims of retaliation may be easily fabricated, such claims by prisoners must be examined with "skepticism and particular care." Johnson v. Eggersdorf, 8 Fed.Appx. 140, 144 (2d Cir. 2001) (finding that inmate failed to allege specific facts and direct evidence under heightened pleading requirements for prisoner retaliation claims). While defendants do not dispute that they indeed transferred plaintiff on multiple occasions and that they carried out disciplinary proceedings against him, plaintiff does not proffer any allegations to establish that these actions were taken because of an improper motive pertaining to the protected speech.
Factors that can lead to an inference of improper motive includes: 1) the temporal proximity of the filing of a grievance and the alleged retaliatory act; 2) the inmate's prior good disciplinary record; 3) vindication at a hearing on the matter; and 4) statements by the defendant regarding his motive for disciplining plaintiff. Rivera v. Goord, 253 F.Supp.2d 735, 749 (S.D.N.Y. 2003).
In the instant case, plaintiff makes no allegations from which to infer an improper motive. Although these factors may not be exclusive, plaintiff's complaint is devoid of any allegations from which the Court could infer improper motive. Similar to the inmate in Johnson, plaintiff in the instant case has "merely juxtaposed the grievances he filed against disciplinary charges filed against him." Johnson, 8 Fed.Appx. at 144. For example, plaintiff asserts that defendants transferred him on December 7, 1999 for retaliatory reasons, yet in sequential terms, this act occurred long after plaintiff filed his second amended complaint against defendants in October of 1996. If plaintiff is attempting to refer to retaliatory action taken more immediately in response to an unspecified grievance, even a liberal construction of the Complaint does not allow the Court to insert specific dates in order to interpret plaintiff's intended allegations. Given that plaintiff fails to allege facts supporting the finding of a nexus between his lawsuits and grievances and post-hearing transfers, his allegations lack the "higher level of detail" and "factual basis" upon which courts have required for pleadings. Id. (quoting Gill v. Mooney, 824 F.2d 192, 194 (2d Cir. 1987) and Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 1983)).
As plaintiff has alleged retaliation in wholly conclusory terms and provided insufficient factual allegations to support his retaliation claim, the defendants' motion to dismiss is granted and plaintiff's retaliation claim is dismissed. Johnson, 8 Fed.Appx. at 144 (finding that "a complaint which alleges retaliation in wholly conclusory terms may safely be dismissed on the pleadings alone"). Id.
B. Fourteenth Amendment Due Process Claims
Although plaintiff's due process claims and the facts in support of these claims are not clearly outlined in his complaint, a liberal reading of his complaint supports three due process claims centered on separate sets of allegations. The first set of allegations, as outlined in his first cause of action, alleges a due process cause of action centered on plaintiff's transfers to other correctional facilities. Similar to his retaliation claims, plaintiff alleges that he was transferred to other correctional facilities; that numerous disciplinary actions, related proceedings and false misbehavior reports were filed to support these transfers; that at the disciplinary hearings for these misbehavior reports, he was not allowed to prepare a defense, call witnesses, or "marshal documentary evidence;" that at these hearings, the named defendants improperly relied on dismissed or expunged misbehavior reports and false testimony; and that the defendants insufficiently reviewed his administrative appeals. Plaintiff alleges that these activities violate the Fourteenth Amendment's due process clause. Complaint at 30, 9-10, ¶¶ 91, 27-30.
Each defendant specifically named by plaintiff is not alleged to have engaged in each activity described within this paragraph. Rather, plaintiff generally alleges that defendants contributed to the violation of his due process rights.
Plaintiff also alleges, in his fourth cause of action, that from May 21, 1997 to December 7, 1999, the defendants repeatedly impeded his access to the courts in violation of the Fourteenth Amendment, both as a retaliation measure and to prevent plaintiff from reporting on the allegedly unlawful practices occurring in the grievance programs at Great Meadow and Attica correctional facilities. Complaint at 32, ¶ 97-98. Plaintiff asserts that defendants screened his court petitions, stole and/or destroyed his legal documents, hampered his use of the law library, and harassed him. Complaint at 20-23, ¶¶ 62 — 73. Plaintiff claims that the loss of his legal materials "caused him irreparable harm to exercise his right of access to the courts." Complaint at 21, ¶ 66. Similarly, in his sixth cause of action, plaintiff alleges that the defendants destroyed plaintiff's law books, legal notes and research materials. Complaint at 22, ¶ 71. Plaintiff maintains that the defendants deliberately flooded his cell in order to ruin his legal materials, hampered his access to the law library to prevent him from carrying out research and meeting court deadlines, and took his writing supplies, stamps, notes, and rough draft worksheets during retaliatory cell searches in which they tossed his property all around. Complaint at 23, ¶ 72;id. at 21, ¶¶ 65-66. Plaintiff asserts that defendants' allegedly retaliatory actions obstructed his access to the courts and caused material prejudice to his ability to litigate pending lawsuits against state officials in violation of the Fourteenth Amendment. Id. at 23, ¶ 71; id. at 33-34, ¶ 102.
Plaintiff's third cause of action asserts claims against the inmate grievance program. Essentially, plaintiff argues that the defendants' grievance program at Great Meadow Correctional Facility and Attica Correctional Facility insufficiently addresses his grievances and conducts the grievance program in a way that prevents a timely investigation and adjudication of any particular grievance. Plaintiff alleges that defendants operate the grievance program in such a way as to "make a mockery of the requirement of the exhaustion of administrative remedies." Id. at 58.
The defendants argue that "plaintiff makes no specific claim that he suffered any unduly harsh punishment as a result of the various disciplinary proceedings that he asserts were falsely brought." Defendants' Brief at 21. Defendants maintain that the absence of any allegation that plaintiff suffered any atypical or significant hardship is fatal to plaintiff's due process claim.
The Due Process Clause of the Fourteenth Amendment provides that no State "shall deprive any person of life, liberty, or property, without due process of law." U.S. CONST. amend. XIV. The Supreme Court has established a two-part test to determine whether a plaintiff has stated a due process claim under the Fourteenth Amendment. First, a plaintiff must allege that he or she possesses a constitutionally protected liberty or property interest that has been interfered with by the state. Second, the court examines what process the state provided and whether it was constitutionally adequate. See Zinermon v. Burch, 494 U.S. 113, 125, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990) (holding that what is unconstitutional in a procedural due process claim is the deprivation of a constitutionally protected interest in life, liberty, or property without due process of law).
1. Disciplinary Hearings
It is well settled that "a prisoner asserting a § 1983 claim for denial of due process at a disciplinary hearing must first identify a liberty interest protected by the Due Process Clause of which he was deprived."Williams v. Goord, 111 F.Supp.2d 280, 288 (S.D.N.Y. 2000) (internal citations omitted). Once a prisoner identifies the state-created liberty interest allegedly deprived, he must then make a threshold showing that the deprivation of which he complains imposed an "atypical and significant hardship in relation to the ordinary incidents of prison life." Sims v. Artuz, 230 F.3d 14, 22 (2d Cir. 2000); see Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). The prisoner must establish that "the state has granted its inmates, by regulation or by statute, a protected liberty interest in remaining free from that confinement or restraint." Frazier v. Coughlin, 81 F.3d 313, 317 (2d Cir. 1996). Once the prisoner meets these two elements, the Court then addresses "whether the deprivation of that liberty interest occurred without due process of law." Sealey v. Giltner, 116 F.3d 47, 51 (2d Cir. 1997) (internal quotations and citations omitted).
Although plaintiff alleges several incidents in his complaint of false misbehavior reports, improper conduct during disciplinary hearings, improper reliance on dismissed or expunged misbehavior reports and denial of his right to produce witnesses and generally present a defense, the Court is strained in trying to identify any liberty interest which plaintiff claims he was denied through these activities. Plaintiff doesn't claim, for example, that good time credits were taken away from him nor that he was subjected to time in a Special Housing Unit ("SHU") or segregated confinement as a result of these acts.
Although plaintiff titles Part 1 of his Statement of Facts within his complaint "Plaintiff's Retaliatory Transfers in Segregated Confinements for His Litigation Against DOCS" plaintiff makes mention of the SHU only twice in his complaint. The first instance arises in the context of plaintiff's access to the courts claim.
Upon information and belief, defendant Ruff acting alone and/or in conjunction with another named defendant, intentionally and knowingly and willfully searched plaintiff's bags in his absence, and arbitrarily stole various items of his personal property, including his pro se legal materials, all of his notes, research materials, and rough draft worksheets on or about December 17, 1998 after plaintiff escorted to SHU by defendant Ryan."
Complaint at 21, ¶ 64. Plaintiff then alleges that defendants Carpenter, Burns and James "failed to act and credit the plaintiff with the illegal SHU time that all had been reversed towards the other SHU time when these reversals was [sic] received into the facility." Complaint at 26, ¶ 82. This allegation, without further supportive factual allegations, is insufficient to support a due process claim for transfer to segregated confinement. Plaintiff fails, for example, to allege specific facts detailing the nature and length of his confinement or when these segregated confinements occurred, referring to them only in passing in the context of other claims.
His complaint is devoid of any allegation that identifies what punishment he received as a result of these various disciplinary proceedings. Rather, plaintiff's complaint seems to imply that all of these activities were conducted to justify transferring him to different correctional facilities. Indeed, the allegations in plaintiff's complaint rely on an alleged deprivation of his right to not be transferred. This claim, however, must fail. It is well established that the transfer of a prisoner from one institution to another does not trigger the protection of the Due Process Clause. See Meachum v. Fano, 427 U.S. 215, 225, 96 S.Ct. 2532, 2538, 49 L.Ed.2d 451 (1976); see also Bell v. Artuz, No. 98 Civ 4710 (MBM) 1999 WL 253607 *5 (S.D.N.Y.) (citing Cf. Olim v. Wakinekona, 461 U.S. 238, 245 (1983). The Constitution does not guarantee that the convicted prisoner will be placed in any particular prison where "[t]he conviction has sufficiently extinguished the defendant's liberty interest to empower the State to confine him in any of its prisons,"Meachum v. Fano, 427 U.S. at 225, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976) (emphasis in original). Prison officials have broad discretion to transfer prisoners to another facility. See Montanye v. Haymes, 427 U.S. 236, 243, 96 S.Ct. 2543, 2547-48, 49 L.Ed.2d 466 (1976). As plaintiff has not sufficiently alleged a liberty interest that is protected by the due process clause, his claims regarding his disciplinary hearings must be dismissed.
2. Denial of Access to the Courts
In his sixth cause of action, plaintiff alleges that the defendants acted to "harass, hamper, deter, prevent and obstruct [his] access to the courts in order to cause materially (sic) prejudice to his ability to litigate his pending lawsuits against state officials." Complaint at 33-34, ¶ 102. Specifically, plaintiff alleges that from May 21, 1997 to December 7, 1999 the defendants "did knowingly impede, obstruct and constantly interfered with plaintiff in gaining access to the Courts." Id. at 20, ¶ 62. Plaintiff further maintains that from June 28, 1997 to December 7, 1999, defendant Poirier "was screening all plaintiff's petitions sent to be typed before sending to the Federal Courts." Id. at 20, ¶ 63. Defendant Ruff allegedly "stole various items of his personal property, including his pro se legal materials, all of his notes, research materials, and rough draft worksheets." Id. at 20-21, ¶ 64. Plaintiff alleges that the defendants further hampered his ability to gain access to the law library to complete his research thereby preventing him from meeting mandatory court deadlines. Id. at 21, ¶ 65. During a cell search, defendants Greene and Phillips allegedly tossed "his personal and legal property all around, before intentionally and selectively taking all his writing supplies, stamps, notes and rough draft worksheets from his cell" causing him "irreparable harm to exercise his rights to access to the courts." Id. at 21, ¶ 66. Defendant Sawyer allegedly "searched through plaintiff's draft bags on December 6, 1999" and "stole various items out of his personal property . . . selectively taking all [of] plaintiff's pro se legal materials that he had prepared of all litigations against state officials." Id. at 22, ¶ 70. The documents that were left, including legal law books, notes, legal materials were "willfully ripped apart" by other defendants. Plaintiff further alleges that on March 1, 2000, defendant Spencer "flooded plaintiff's cell to ruin all of his legal materials and law books on his cell floor." Id. at 25, ¶ 72. Lastly, plaintiff asserts that certain Special Housing Unit surveillance videotapes were not preserved.
Plaintiff's allegations regarding his loss of access to the law library are also insufficient. Although reasonable access to a law library is guaranteed by the Constitution, see Bounds v. Smith, 430 U.S. at 821, 97 S.Ct. 1491, unlimited, unrestricted or unmanaged access at the demand of the prisoner is not required by the constitution. Prison officials may impose "reasonable restrictions" on use of prison law libraries. See Morello v. James, 810 F.2d 344, 346-47 (2d Cir. 1987). Plaintiff, however, does not allege the extent of his loss of access to the law library and how that loss was unreasonable. Plaintiff's complaint, furthermore, is devoid of any allegations describing the actual injury he suffered as a result. See Duff v. Coughlin, 794 F.Supp. 521, 524 (S.D.N.Y. 1992) (granting summary judgment against plaintiff where complaint did not identify prejudice suffered and no details were produced).
Defendants argue that plaintiff's denial of access to the courts claim must be dismissed. Specifically, they contend that plaintiff cannot establish the requisite intent or injury required in a denial of access to courts claim. See Defendants' Brief at 26. Defendants further assert that plaintiff makes no clear statement alleging that defendants acted with the deliberate purpose of denying plaintiff access to the courts.See id. Defendants maintain that plaintiff's complaint is "couched in wholly conclusory terms of a general conspiracy by all DOCS employees to essentially do everything within their power to deny plaintiff access to the court system." Id. Additionally, defendants argue that plaintiff fails to allege that he suffered a fatal disposition as a result of any actions by defendants and that regardless, delays in working on one's legal action do not amount to constitutional violations. Id. at 27. Lastly, defendants assert that plaintiff seeks relief for mere "hypothetical prospective claims." Id.
It has long been established that inmates have a constitutional right to "adequate, effective, and meaningful access to the courts." See Bounds v. Smith, 430 U.S. 817, 821, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977). Moreover, the Second Circuit has held that prison officials may not place burdens on that constitutional right. See Corby v. Conboy, 457 F.2d 251, 253-54 (2d Cir. 1972) (finding that plaintiff adequately stated a cause of action under § 1983 in alleging that prison officials hindered his ability to prepare legal papers by delaying his letters to courts, refusing him access to the prison typewriter and law library, and confiscating his law books); see also Hampton v. Scully, 1991 WL 18129 (S.D.N.Y.) (denying defendants' motion to dismiss with respect to plaintiff's claim of interference with his right of access to the courts where defendants allegedly removed or destroyed his law books and other legal materials).
In order to establish a violation of a right of access to courts, a plaintiff must demonstrate that defendants "`deliberately and maliciously interfered with his access to the courts, and that such conduct materially prejudiced a legal action he sought to pursue.'" Higgins v. Coombe, 1999 WL 760658, *2 (S.D.N.Y.) (citing Morello v. Smith, 810 F.2d 344, 347 (2d Cir. 1986). Plaintiff must show that defendant's efforts deliberately caused "actual injury." Monsky v. Moraghan, 127 F.3d 243, 247 (2d Cir. 1997) (quoting Lewis v. Casey, 518 U.S. 343, 348, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996)). The actual injury requirement for a denial of access to the courts is "more than just any type of frustrated legal claim." Lewis v. Casey, 518 U.S. 343, 116 S.Ct. 2174, 2181, 135 L.Ed.2d 606 (1996). The injury must go to plaintiff's ability to "attack their sentences, directly or collaterally, and in order to challenge the conditions of confinement." Id. A plaintiff must show how the destruction of documents could have impeded any suit that he had or could have brought. Hikel v. King, 659 F.Supp. 337, 340 (E.D.N.Y. 1987). "A delay in being able to work on one's legal action or communicate with the courts does not rise to the level of a constitutional violation." Herrera v. Scully, 815 F.Supp 713, 725 (S.D.N.Y. 1993) (citing Jones v. Smith, 784 F.2d 149, 151-52 (2d Cir. 1986)).
Construing plaintiff's complaint liberally and assuming the truth of plaintiff's allegations, a reasonable inference can be drawn that defendants acted intentionally and maliciously. Plaintiff alleges that defendants "knowingly and willfully" searched his belongings, "arbitrarily" stole or destroyed his legal documents, including his notes, research materials and rough draft work sheets, and in "bad faith," ripped apart his legal books. Complaint at 20-21, ¶¶ 64-65; Complaint at 23, ¶ 71. Further, plaintiff alleges that defendants "knowingly and willfully" selectively took his writing supplies and stamps, "tossed" his legal property around, and impeded his access to the law library. Complaint at 21, ¶¶ 65-66. Plaintiff asserts that defendants deliberately carried out these activities, either directly or as supervisors encouraging these activities, in retaliation for plaintiff's pending litigation against them and "with the belief and unlawful intention" of obstructing plaintiff's access to the courts. Complaint at 33, ¶¶ 101-02; Complaint at 21, ¶¶ 65-66; Complaint at 32, ¶ 98. Moreover, plaintiff alleges multiple incidents of defendants having allegedly "knowingly and willfully" interfered with his legal documents, rather than merely one incident. See Ramirez v. Holmes, 921 F.Supp. 204, 207 (S.D.N.Y. 1996) (finding single incident of denial of use of prison law library did not violate constitutional rights).
Plaintiff does not, however, sufficiently allege how this conduct materially prejudiced any existing legal action. Plaintiff's complaint and his myriad of allegations simply do not state with any specificity the actual injury he suffered as a result of these activities. Plaintiff's conclusory allegations that the defendants' caused him "irreparable harm in his ability to litigate his state and federal claims against state officials" or that "the loss of these legal materials caused him irreparable harm to exercise his rights of access to the courts" are simply insufficient to state a claim. Complaint at 23, 21, ¶¶ 71, 66. Plaintiff does not allege, for example, what specific documents, including motions, pleadings, complaints, responsive papers, etc. he intended to file which he was subsequently prevented from filing. Furthermore, plaintiff does not allege that he would have brought a specific claim but for the actions and conduct of the defendants. Absent such allegations, defendants' motion to dismiss plaintiff's claim of denial of access to the courts is granted.
3. Grievance Procedure Claim
In his third cause of action, plaintiff alleges that the defendants' grievance program at Great Meadow Correctional Facility and Attica Correctional Facility "deprive[s] inmates of a fair opportunity to have their grievances timely and impartially investigated, processed, and heard." Complaint at 32, ¶ 96. Plaintiff asserts that the defendants "were not providing sufficient office time for inmate grievance representatives/clerks to meaningfully and effectively perform their official responsibilities and duties in violation of the Grievance Manual and Directive # 4040." Id. at 16, ¶ 50. Plaintiff alleges that the defendants circumvented the grievance process and denied inmates their right to a formal grievance hearing by making recommendations based on incomplete or biased records and restricting grievance representatives' ability to interview inmates. Complaint at 17, ¶ 53; Complaint at 18, ¶ 56. He also maintains that the defendants denied his complaints either summarily on the grounds that his claims could not be substantiated by fact, without addressing them, or by conducting investigations in the best interest of DOCS employees. Complaint at 19, ¶¶ 59, 60. Plaintiff additionally asserts: that defendants obstruct grievance committee representatives' ability to interview inmates by restricting facility access; that grievances are summarily denied on grounds that inmate's claim cannot be substantiated by fact; and that complaints are either not addressed or investigations, or if conducted, are "one-sided" and in the "best interest of the employees." Complaint at 18-19, ¶ 56-61.
Plaintiff specifically identifies defendants Duncan, Stinson, Reams, A. Brown, Eagen, Herbert, Caryl, and Struebel.
Plaintiff specifically mentions the duty to respond to grievance investigation requests, hold hearings, hear appeals, and conduct interviews. Complaint at 16 ¶¶ 51, 53, 54, 56.
Although plaintiff does not allege what constitutional right was violated under this cause of action, plaintiff's claim discusses his inability to receive a fair opportunity to present and have heard his grievances. The Court, therefore, will construe this cause of action as a claim under the Fourteenth Amendment. See Franco v. Kelly, 854 F.2d 584, 589 (allegation that state prison officials retaliated against inmate in violation of § 1983 implicates the "right to petition the government for redress of grievances as guaranteed by the First and Fourteenth Amendments").
The corrections officers' alleged failure to properly address plaintiff's grievances do not create a cause of action for denial of due process. Similar to plaintiff's previously addressed due process claims, plaintiff has failed to identify a liberty interest protected by the Due Process Clause. See Williams v. Goord, 111 F.Supp.2d 280, 288 (S.D.N.Y. 2000). While the filing of grievances is constitutionally protected, the manner in which grievance investigations are conducted do not create a protected liberty interest. See Torres v. Mazzuca, 246 F.Supp.2d 334, 342 (S.D.N.Y. 2003) (finding that because "[p]rison grievance procedures do not confer any substantive right upon an inmate requiring the procedural protections envisioned by the Fourteenth Amendment," claims that corrections officers failed to properly address plaintiff's grievances by conducting a thorough investigation to plaintiff's satisfaction must be dismissed); see also Mahotep v. DeLuca, 3 F.Supp.2d 385, 390 n. 3 (W.D.N.Y. 1998) (holding that because prison grievance procedures do not confer any substantive right upon an inmate, plaintiff's claims that defendants violated his Fourteenth Amendment rights by failing to conduct a fair and impartial investigation into plaintiff's grievances must be dismissed); see also Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993); see also Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1994). As plaintiff has failed to allege the violation of a liberty interest protected by the Fourteenth Amendment, his claim that the defendants violated his due process rights through their operation of the grievance program must also be dismissed.
The Court further found that "the breadth of any investigation remains in the discretion of the offices conducting the investigation." Torres, 246 F.Supp.2d at 342. Furthermore, "[u]nder the applicable standard in Sandin, the failure to conduct an extensive investigation into [plaintiff's] charges does not impose an "atypical and significant hardship" upon [plaintiff] sufficient to create a protected liberty interest.Id.
C. Medical Indifference Claim
In his fifth cause of action, plaintiff alleges that over the course of his incarceration at Great Meadow, defendant Nesmith acted with deliberate indifference by failing to treat his medical needs in violation of his Eighth Amendment rights. Complaint at 24, ¶ 74. Plaintiff asserts that defendant Nesmith "knowingly and willfully acted with deliberate indifference to plaintiff's health . . . after receiving `actual knowledge' of plaintiff's injuries." Complaint at 24, ¶ 74. Defendants contend that plaintiff's claim for Eighth Amendment medical indifference must be dismissed because "plaintiff fails to allege any medical condition from which he suffered that gave rise to a serious medical need towards which any defendants acted with deliberate indifference." Defendants' Brief at 29.
The Eighth Amendment bars the infliction of cruel and unusual punishment on inmates. U.S. CONST. amend. VIII To establish an Eighth Amendment claim, plaintiff must set forth facts supporting both objective and subjective components. The objective component requires plaintiff to allege that the deprivation of medical care was "sufficiently serious." Johnson v. Newport et al., No. 01 Civ. 9587 (SAS) 2003 WL 169797 *2 (S.D.N.Y.). "Only those deprivations denying `the minimal civilized measure of life's necessities'" constitute grounds for an Eighth Amendment violation. Wilson v. Seiter, 501 U.S. 294, 298, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991) (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)). To establish the subjective prong of the test, federal officials must have acted with culpability that rises to the level of deliberate indifference. Johnson, 2003 WL 169797 at *3. Accordingly, plaintiff must show that prison officials "intentionally denied, delayed access to, or intentionally interfered with prescribed treatment." Id.
Plaintiff's complaint fails to allege any specific physical conditions that required medical attention. In the absence of an identified medical need, there is no basis from which to conclude that plaintiff was at risk of "serious" harm due to deprivation of medical care as required by the objective component of the medical indifference standard. Furthermore, plaintiff does not allege facts which might give rise to a reasonable inference that defendant Nesmith knew of any medical needs borne by plaintiff. Although plaintiff alleges that Nesmith had received "`actual knowledge' of plaintiff's injuries" and that Nesmith "knew" plaintiff "faced a substantial risk of serious harm and totally disregarded that risk," plaintiff fails to proffer specific details concerning any medical condition or evidence to suggest that defendant Nesmith was indeed aware of it. Complaint at 24, ¶ 74. Moreover, plaintiff does not indicate in what manner defendant Nesmith demonstrated deliberate indifference to his medical needs.
Plaintiff has not alleged sufficient facts to substantiate a medical indifference claim. His Eighth Amendment claim, therefore, is also dismissed. See Delisser v. Goord, 2003 WL 133271 *5 (N.D.N.Y.) (finding plaintiff failed to demonstrate deliberate indifference when nothing in the record showed that defendants knew of and disregarded an excessive risk to plaintiff's health or safety, and plaintiff failed to allege specific facts regarding his medical condition and the behavior constituting deliberately indifferent conduct).
D. Monell Claim
In his second cause of action, plaintiff alleges that defendants have promulgated a policy or custom that encourages DOCS employees to conduct unlawful and unconstitutional investigations of harassment and discrimination in violation of 42 U.S.C. § 1983. Complaint at 14, ¶ 42. Plaintiff alleges that this policy is designed to discredit all prisoners' claims of staff misconduct and allows defendants to
In this cause of action, plaintiff specifically names some defendants, but does not allege that each defendant engaged in each of the behaviors described within this paragraph. Plaintiff generally alleges that defendants promulgated an unofficial policy that constituted an obstruction of justice.
Defendants have briefed this cause of action as a conspiracy claim under 42 U.S.C. § 1985 or 1986. Defendants' Grief at 30. However, where plaintiff has clearly alleged a "policy or custom of encouraging unconstitutional DOCS' employees activities throughout Great Meadow and Attica Correctional Facilities," the Court will address this cause of action as a policy or custom claim under 42 U.S.C. § 1983. Complaint at 2.
(1) prepare a record which discredits inmates' complaints; (2) allows them to create records which look favorable (sic) upon the departments in anticipation of potential litigation; (3) prevents inmates from substantiating their complaints; (4) prevents inmate grievance representatives from performing their duties and responsibilities on an inmate's behalf; and (5) condones staff harassment, discrimination and misconduct.
Complaint at 31, ¶ 94. In support of his claim, plaintiff submits a Memorandum from Deputy Commissioner of DOCS Stephen Bernardi addressed to all superintendents. See Exhibit B of Plaintiff's Complaint. Plaintiff alleges that the Memorandum "directs that each superintendent inform all staff investigating harassment/unlawful discrimination grievances to prepare their reports in a manner which favorably establishes the credibility of the facility and department." Complaint at 14, ¶ 42. Plaintiff further alleges that the report "directs all superintendents to make sure `under no circumstances should investigation reports be accessible to inmates,' to ensure their confidentiality; and that all investigation[s] of and response to these allegations is in the best interest of the employees involved and the good order of the facility." Complaint at 15, ¶ 44 (citing Exhibit B).
Plaintiff also points to another memorandum titled "Misbehavior Report Alleging Lying by an Inmate," dated January 24, 1996.Id. at 15, ¶ 46. Plaintiff alleges that this memorandum permits correction employees to "issue a misbehavior report against the inmate, charging him with a violation of rule 107.20 which states that lying, incomplete, misleading and/or false statements or information by inmates is prohibited." Complaint at 15, ¶ 47. The memo allegedly "directs that there are a number of very strong policy reasons for carefully delineating the circumstances when a disciplinary procedure for lying may be authorized on the basis of an inmate complaint." Complaint at 16, ¶ 48. Plaintiff asserts that this unofficial policy precludes inmates from substantiating their claims. Id. at 15, ¶ 45.
Plaintiff essentially alleges that through the policies encouraged by the memoranda, DOCS employees "promulgated, employed and enforced" an "unofficial policy" to interfere with investigations of inmate reports of harassment and discrimination by preparing records which discredit inmates and are biased towards staff, preventing inmates from substantiating their complaints, preventing grievance representatives from assisting inmates, and condoning staff misconduct towards inmates. Complaint at 31, ¶ 94. Defendants only briefly refer to this claim, arguing that plaintiff fails to state a viable policy or custom because allegations are "unclear, general, vague and conclusory." Defendants' Brief at 35.
In order to impose § 1983 liability against a municipal defendant, a plaintiff must set forth facts that demonstrate the alleged constitutional violation resulted from an official policy, custom or practice. Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690-91, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). A plaintiff must show "a direct causal link between a municipal policy or custom, and the alleged constitutional deprivation."City of Canton, Ohio v. Harris, 489 U.S. 378, 385, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). The existence of a policy or custom can be inferred from "circumstantial proof, such as evidence that the municipality so failed to train its employees as to display a deliberate indifference to the constitutional rights of those within its jurisdiction." Ricciuti v. New York City Transit Authority, 941 F.2d 119, 123 (2d Cir. 1991). However, inferences must be supported by "explicit factual allegations"; a mere assertion that a municipality has such a custom or policy is insufficient. Fanelli v. Town of Harrison, 46 F.Supp.2d 254, 258 (S.D.N.Y. 1999) (citing Dwares v. City of New York, 985 F.2d 94 (2d Cir. 1993)). "[T]here must be proof of such a custom or policy in order to permit recovery on claims against individual municipal employees in their official capacities, since such claims are tantamount to claims against the municipality itself." Id. (quoting Dwares, 985 F.2d at 100.).
Although plaintiff offers the DOCS memorandum that details employee guidelines for the investigation of harassment and unlawful discrimination complaints, his allegations in support of his claim are insufficient to state a cause of action for DOCS liability. Complaint, Exhibit B. By pulling phrases out of context, plaintiff attempts to provide an interpretation of the guidelines that is not supported by the language in the memorandum. For instance, plaintiff asserts that the memorandum " directs that each superintendent inform all staff . . . to prepare their reports in a manner which favorably `establishes the credibility of the facility' and department since such reports may be used `as documentation for any further inquiries if litigation is pursued by the grievant.'" Complaint at 14, ¶ 42 (emphasis added). In actuality, the lines which plaintiff refers to read in full:
Determining the sufficiency of a plaintiff's claim for Rule 12(b)(6) purposes is limited to consideration of the factual allegations of a plaintiff's complaint, which are accepted as true, documents attached to the complaint as an exhibit or incorporated in it by reference, to matters of which judicial notice may be taken, or to documents either in plaintiff's possession or of which plaintiffs had knowledge and relied on in bringing suit. See Brass v. American Film Technologies, Inc., 987 F.2d 142, 150 (2d Cir. 1993). Plaintiff in the present case has submitted a photocopy of this memorandum as Exhibit B.
"Supervisors conducting such investigations should be made aware that their investigation is the basis for the superintendent's response to the harassment grievance and possibly, upon appeal, the basis for the CORC decision. It also establishes the credibility of the facility administration's and the Department's procedures for addressing such complaints. In all cases, the report of investigation which is submitted to the superintendent or designee becomes a matter of record that the superintendent may use as documentation for any further inquiries if litigation is pursued by the grievant."
Complaint, Exhibit B. By changing the language of the memorandum through use of terms such as "directs," "favorably," and "since," plaintiff attributes specific language to defendants not indicated on the face of the entire memorandum.
Furthermore, plaintiff's allegations regarding the second memorandum are insufficient to support a finding that DOCS has an unconstitutional policy or custom of issuing false misbehavior reports. As plaintiff has not offered any non-conclusory allegations, his claim is supported only by his mere assertion that an unconstitutional policy or custom exists. "Allegations which are nothing more than broad, simple, and conclusory statements are insufficient to state a claim under § 1983."Knight v. Keane, 247 F.Supp.2d 379, 394 (S.D.N.Y. 2002) (quoting Alfaro Motors, Inc. v. Ward, 814 F.2d 883, 887 (2d Cir. 1987)). As plaintiff offers no further factual allegations to support his claim of an unconstitutional DOCS policy or custom, it must also be dismissed.
CONCLUSION
For the reasons set forth above, defendants' motion to dismiss the Second Amended Complaint is granted. All of plaintiff's claims are dismissed.SO ORDERED.