Opinion
9:09-cv-1114 (GLS/DEP).
July 21, 2011
Patrick Proctor, Pro Se, Clinton Correctional Facility, Dannemora, NY, Attorney for the plaintiff.
ADRIENNE J. KERWIN, Assistant Attorney General, HON. ERIC T. SCHNEIDERMAN, New York State Attorney General, The Capitol, Albany, NY, Attorneys for the defendant.
MEMORANDUM-DECISION AND ORDER
I. Introduction
Pro se plaintiff Patrick Proctor, an inmate at Clinton Correctional Facility, brings this action under 42 U.S.C. § 1983, alleging violations of his due process rights by Lucien LeClaire, Deputy Commissioner of the New York State Department of Correctional Services (DOCS). ( See Am. Compl., Dkt. No. 19.) LeClaire filed a motion to dismiss the complaint. ( See Dkt. No. 20.) In a Report and Recommendation (R R) filed February 17, 2011, Magistrate Judge David E. Peebles recommended that LeClaire's motion to dismiss be granted. (Dkt. No. 26.) Pending are Proctor's objections to the R R. (Dkt. No. 28.) For the reasons that follow, the R R is adopted in its entirety.
The Clerk is directed to append the R R to this decision, and familiarity therewith is presumed.
II. Background
For a full recitation of the facts, the parties are referred to the R R. ( See R R at 3-9, Dkt. No. 26.)
Patrick Proctor is currently confined in administrative segregation, and alleges he has received only "sham, perfunctory and meaningless periodic reviews in order to indefinitely confine him to Administrative Segregation." (Am. Compl. at 31, Dkt. No. 19.) Proctor was initially confined to administrative segregation for a term of nine years in the disciplinary special housing unit (SHU). ( See id. at ¶ 8.) Upon completion of this SHU term, Proctor received on December 9, 2003, an administrative segregation recommendation, which alleged approximately fourteen instances of misconduct and recommended that he remain in administrative segregation. ( See id. at ¶ 9.) An administrative hearing was held and, on December 24, 2003, Corrections Captain Charles F. Kelly, Jr. accepted the recommendation that Proctor remain in administrative segregation. ( Id. at ¶ 10.)
As noted by Judge Peebles in the R R, this term of disciplinary confinement appears to be "precipitated in large part by [Proctor's] successful escape in November of 1994 from the Shawangunk Correctional Facility pursuant to a plan involving three other inmates and a parolee." (R R at 4 n. 4, Dkt. No. 26 (citing Proctor v. Kelly, No. 9:05-cv-692, Sept. 30, 2008 R R at 3, Dkt. No. 104).)
New York regulations require that an inmate placed in administrative segregation have his circumstances reviewed in sixty-day intervals. See 7 N.Y. COMP. CODES R. REGS. § 301.4(d). Proctor asserts that, since the time of his confinement, his periodic reviews were not meaningfully conducted. ( See Am. Compl. at ¶¶ 13-14, Dkt. No. 19.) Accordingly, Proctor sought various avenues for complaint. Proctor submitted a supplemental administrative appeal on March 24, 2004, which was ultimately forwarded to defendant LeClaire. ( See id. at ¶ 15.) In addition, Proctor wrote to LeClaire regarding his sixty-day reviews, and to the superintendent at Great Meadows Correctional Facility requesting that the letters be taken into consideration in his reviews. ( See id. at ¶¶ 17, 21, 23, 25, 33, 54, 67.) On September 25, 2007, Proctor wrote to DOCS Commissioner Brian Fischer, and thereafter received a response from LeClaire, which stated that "[a]ll pertinent information, including your letter, will be included as part of the review process during the next meeting of the Ad Seg Review Committee." ( Id. at ¶¶ 60-61.) In addition to writing letters to DOCS officials, Proctor filed grievances on July 27, 2007, May 20, 2009, and July 29, 2009. ( See id. at ¶¶ 56, 81, 84.) Proctor's first grievance was dismissed and the second and third were unsuccessfully pursued through the DOCS Central Office Review Committee. ( See id.)
The determination made on December 24, 2003, regarding the necessity of administrative segregation was unsuccessfully challenged by Proctor in his previous action before this court.
Proctor commenced this action on October 2, 2009, and subsequently filed an amended complaint. ( See Compl., Dkt. No. 1; Am. Compl., Dkt. No. 19.) On May 18, 2010, LeClaire moved to dismiss Proctor's amended complaint pursuant to FED R. CIV. P. 12(b)(6), asserting that: (1) the complaint fails to allege LeClaire's personal involvement in the due process deprivations alleged; (2) Proctor's claims are barred by claim preclusion based upon the court's decision in the earlier proceeding regarding his periodic review claims; and (3) Proctor's claims are barred, in whole or in part, by the governing statute of limitations. ( See Dkt. No. 7.)
III. Standard of Review
Before entering final judgment, this court routinely reviews all report and recommendation orders in cases it has referred to a magistrate judge. If a party has objected to specific elements of the magistrate judge's findings and recommendations, this court reviews those findings and recommendations de novo. See Almonte v. N.Y. State Div. of Parole, No. 04-cv-484, 2006 WL 149049, at *6-7 (N.D.N.Y. Jan. 18, 2006). In those cases where no party has filed an objection, or only a vague or general objection has been filed, this court reviews the findings and recommendations of a magistrate judge for clear error. See id.
IV. Discussion
A. Personal Involvement
In the R R, Judge Peebles concluded that Proctor's "amended complaint, when liberally construed and after drawing all inferences in his favor, sufficiently alleges defendant LeClaire's participation in the violations asserted." (R R at 14, Dkt. No. 26.) Absent any specific objections to this conclusion, the court has reviewed it for clear error and finds none. Accordingly, the court adopts Judge Peebles's recommendation that LeClaire's motion be denied as to personal involvement.B. Statute of Limitations
Judge Peebles also concluded that Proctor's claims were not barred by the applicable statute of limitations. ( See id. at 26.) LeClaire does not object to Judge Peebles's finding that the statute of limitations on Proctor's claim was tolled by the continuing violation doctrine. The court has reviewed this portion of the R R for clear error, finds none, and adopts the recommendation that this aspect of the motion be denied.
C. Claim Preclusion
Judge Peebles ultimately recommended that Proctor's due process claim be dismissed as barred by the doctrine of claim preclusion. ( See id. at 23.) Claim preclusion arises when a prior final judgment forestalls further litigation on the same claim. See Taylor v. Sturgell, 553 U.S. 880, 892 (2008). And as set forth in the R R, before the doctrine of claim preclusion forecloses a cause of action, "it must be shown that there was a final judgment on the merits in a previous proceeding, involving the same parties or their privies, and arising out of the same transaction or connected series of transactions." (R R at 18-19, Dkt. No. 26 (citing Marvel Characters, Inc. v. Simon, 310 F.3d 280, 286-87 (2d Cir. 2002); Faye v. S. Colonie Cent. Sch. Dist., 802 F.2d 21, 28 (2d Cir. 1986), overruled on other grounds, Taylor v. Vt. Dep't of Educ., 313 F.3d 768 (2d Cir. 2002)).)
In the prior action, the issue of sixty-day reviews was not raised in Proctor's complaint. ( See Proctor v. Kelly, No. 9:05-cv-692, Compl., Dkt. No. 1.) Rather, the issue was first raised and resolved at the summary judgment stage. Thus, with respect to the issue of claim preclusion, Judge Peebles recommended dismissal because the claim should have been, and was, raised in the previous action. ( See R R at 19, Dkt. No. 26.) Proctor's due process claim concerning his periodic reviews is the same claim he advanced in the prior action. ( See id. at 20.) In fact, Proctor's amended complaint contends that LeClaire's discriminatory policy or practice concerning his reviews began on or about February 23, 2004, ( see Am. Compl. ¶¶ at 13-14), and that since April 2008, each review has employed this discriminatory policy, ( see id. at ¶ 77). Proctor's first claim involved the initial administrative segregation determination, and his second claim developed to include the periodic reviews based on the same "'facts derive[d] ultimately from the same origin or motivation.'" ( See R R at 20-21, Dkt. No. 26 (quoting Waldman v. Vill. of Kiryas Joel, 207 F.3d 105, 111-12 (2d Cir. 2000)).) As Judge Peebles noted, "this lawsuit would have formed a convenient trial unit with the previous action since both involve substantially the same occurrences regarding [Proctor's] periodic reviews of his administrative confinement." (R R at 21, Dkt. No. 26 (citing Interoceanica Corp. v. Sound Pilots, Inc., 107 F.3d 86 (2d Cir. 1997)).) Both actions involve facts that occurred as a "single transaction or series of related transactions." Waldman, 207 F.3d at 112 (citation omitted). Accordingly, treating the facts of both actions as a single transaction would "conform to the parties' expectations," Interoceanica, 107 F.3d at 90, which supports Judge Peebles's reasoning that the doctrine of claim preclusion bars Proctor's claim.
While this claim went unaddressed in Magistrate Judge Gustave J. DiBianco's report and recommendation, District Judge Glenn T. Suddaby concluded that although the issue was not properly before the court, he would address the merits of the claim "in the interest of thoroughness." (See Proctor v. Kelly, No. 9:05-CV-692, Dec. 16, 2008 Order at 15, Dkt. No. 110.)
Proctor makes multiple objections to the preclusion of his claim. ( See Objections at 3-25, Dkt. No. 28.) First, he contends that because nine period reviews have occurred since his prior action was dismissed, his claim remains viable. ( See id. at 4.) Second, he asserts that although reviews began on February 23, 2004, he was unaware of them until 2009. ( See id. at 8.) Third, he alleges that the facts have not remained the same, but rather are constantly evolving and changing. ( See id. at 9.) And fourth, he alleges that he did not have a full and fair opportunity to litigate this claim before because he was pro se. ( See id. at 18-19.) The court rejects these objections, because as Judge Peebles's observed:
[A]llowing [Proctor's] claims to proceed in this action would contravene the paramount policy considerations underlying the doctrine of res judicata . . . [and] each sixty-day interval when [Proctor's] administrative confinement is reviewed could give rise to a new claim . . . even though there has been no change in the underlying facts and circumstances.
(R R at 21-22, Dkt. No. 26 (italics omitted).) Accordingly, Proctor's due process claim is dismissed.
D. Issue Preclusion
In the R R, Judge Peebles also recommended that Proctor's due process claim be dismissed under the doctrine of issue preclusion. ( See id. at 24.) Proctor specifically objects to this recommendation, arguing that the requirements of issue preclusion have not been satisfied, and that the R R is "fostering Constitutional violations." (Objections at 25, Dkt. No. 28.) The court agrees with Judge Peebles that Proctor's due process claim was already addressed on the merits and is therefore barred by issue preclusion. (R R at 24, Dkt. No. 26 ("Issue preclusion bars [a] party that has had a full and fair opportunity to litigate an issue of fact from relitigating the same issue once it has been decided against that party. . . ." (citing McKithen v. Brown, 481 F.3d 89, 105 (2d Cir. 2007))).) Accordingly, Proctor's due process claim is also subject to dismissal on the basis of issue preclusion.
E. Leave to Amend
Finally, Proctor requests leave to amend his complaint and asserts that he has "many additional violations [he] can add to [his claim] in a supplemental complaint." ( See Objections at 12, Dkt. No. 28.) Rule 15(a) provides that where a party seeks to amend his pleading before trial, "[t]he court should freely give leave when justice so requires." FED. R. CIV. P. 15(a)(2). "A motion to amend should be denied only for such reasons as undue delay, bad faith, futility of the amendment, and perhaps most important, the resulting prejudice to the opposing party." Richardson Greenshields Sec., Inc. v. Lau, 825 F.2d 647, 653 n. 6 (2d Cir. 1987) (internal quotation marks and citation omitted). "An amendment to a pleading will be futile if a proposed claim could not withstand a motion to dismiss pursuant to Rule 12(b)(6)." Dougherty v. Town of N. Hempstead, 282 F.3d 83, 88 (2d Cir. 2002) (citation omitted). Upon review of Proctor's complaint, the court finds that leave to amend would be futile and denies the request. However, the court notes that notwithstanding the dismissal of this action, Proctor may, if he so chooses, assert any additional claims in a later action. As Judge Peebles noted, this dismissal does not say "that a future action or series of future occurrences involving [Proctor's] administrative segregation review could not at some point suffice to create a new, viable section 1983 action." (R R at 22, Dkt. No. 26 (citing Waldman, 207 F.3d at 113).)
V. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that Magistrate Judge David E. Peebles's Report and Recommendation (Dkt. No. 26) is ADOPTED; and it is further
ORDERED that LeClaire's motion to dismiss is GRANTED, and the complaint is DISMISSED; and it is further
ORDERED that the Clerk close this case and provide a copy of this Memorandum-Decision and Order to the parties.
IT IS SO ORDERED.
REPORT AND RECOMMENDATION
Plaintiff Patrick Proctor, a convicted murderer with a chronicled history of violent behavior and escapes from custody, has commenced this action pursuant to 42 U.S.C. § 1983 against the Deputy Commissioner of the New York State Department of Correctional Services ("DOCS") alleging deprivation of his civil rights. Plaintiff, who has been confined in administrative segregation at various DOCS prison facilities for nearly seven years, coming on the heels of a nine-year term of disciplinary special housing unit ("SHU") confinement, while not now challenging the initial administrative segregation determination, contends that he has received only perfunctory, meaningless periodic reviews of his status following that initial determination, and has thereby been deprived of procedural due process.In response to plaintiff's complaint defendant has moved seeking its dismissal for failure to state a claim upon which relief may be granted. In support of his motion defendant advances three arguments, asserting that 1) plaintiff's complaint fails to state a plausible claim reflecting defendant's personal involvement in the due process deprivations alleged; 2) plaintiff's claims are barred by claim preclusion based upon the court's decision in the earlier proceeding in which his periodic review claims were addressed by the court; and 3) plaintiff's claims are barred, in whole or in part, by the governing statute of limitations. For the reasons set forth below, I find that defendant's claim preclusion argument warrants dismissal of plaintiff's claims and therefore recommend that defendant's motion be granted.
I. BACKGROUND
In light of the procedural posture of this case, the following recitation is drawn principally from plaintiff's amended complaint, the contents of which have been accepted as true for purposes of the pending motion. See Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197, 2200 (2007) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56, 127 S. Ct. 1955, 1965 (2007)); see also Cooper v. Pate, 378 U.S. 546, 546, 84 S. Ct. 1733, 1734 (1964).
Plaintiff is a prison inmate entrusted to the care and custody of the DOCS as a result of a conviction for murder and attempted escape, resulting in a sentence of thirty-two and one-half years to life imprisonment, which plaintiff began serving on or about August 23, 1989. At the times relevant to the issues raised in his complaint plaintiff has been designated to various prison facilities operated by the DOCS including, most recently, the Clinton Correctional Facility ("Clinton"), located in Dannemora, New York. See generally Amended Complaint (Dkt. No. 19).
Although this action is before the court on a motion to dismiss, the court is nonetheless entitled to take judicial notice of plaintiff's conviction, which is a matter of public record. See Federal Rules of Evidence 201 and 1005; see also, Wilson v. Limited Brands, Inc., 08 CV 3431, 2009 WL 1069165, *1 n. 1 (S.D.N.Y. April 17, 2009) (a copy of this as well as all of those unreported decisions referred to in this report and recommendation is attached for the pro se plaintiff's convenience). Moreover, it is well established that a district court may rely on matters of public record in deciding whether to dismiss a complaint. Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 75 (2d Cir. 1998) (citations omitted); see also Anderson v. Coughlin, 700 F.2d 37, 44 n. 5 (2d Cir. 1983). Finally, I note hat plaintiff has admitted the fact of his conviction in a separate but related proceeding in this court. See Proctor I, Response to Defendants' Local Rule 7.1(a)(3) Statement (Dkt. No. 98-1) ¶ 12(a).
On December 8, 2003, plaintiff completed a term of nine years and one month of disciplinary SHU confinement at the Great Meadow Correctional Facility ("Great Meadow"), located in Comstock, New York. Amended Complaint (Dkt. No. 19) ¶ 8. According to the plaintiff, that term of disciplinary confinement was imposed for various infractions, including escape, weapons possession, and assault. Id.
It appears that the lengthy term of disciplinary confinement was precipitated in large part by plaintiff's successful escape in November of 1994 from the Shawangunk Correctional Facility pursuant to a plan involving three other inmates and a parolee. See Civil Action No. 9:05-CV-692, Report and Recommendation dated September 30, 2008 (Dkt. No. 104) at p. 3.
Instead of being released into general population following the completion of his disciplinary sentence, on December 9, 2003 plaintiff was served with an administrative segregation recommendation, which was dated December 8, 2003 and authorized by DOCS Deputy Inspector General George Suifret; it listed fourteen specific allegations of prior misconduct as well as general references to alleged inappropriate behavior on the part of the plaintiff ranging over a twenty-year period as a basis for the recommendation. Amended Complaint (Dkt. No. 19) ¶ 9. On December 24, 2003, following a hearing, Corrections Captain Charles F. Kelly, Jr. accepted the recommendation and determined that plaintiff should be placed in administrative segregation. Id. at ¶ 10. That determination was unsuccessfully challenged by the plaintiff in Proctor I, the court in that case rejecting plaintiff's claim that his right to procedural due process under the Fourteenth Amendment was violated in connection with the administrative segregation determination. Id. at ¶ 11; see also Proctor I, Memorandum-Decision and Order, dated December 16, 2008 (Dkt. No. 110) at pp. 9-12.
In the New York State prison system, administrative segregation is subject to a comprehensive regulatory scheme which requires, inter alia, that a hearing be conducted within fourteen days of an inmate's admission into administrative segregation. 7 N.Y.C.R.R. § 301.4(a). "Administrative segregation admission results from a determination by the facility that the inmate's presence in general population would pose a threat to the safety and security of the facility." 7 N.Y.C.R.R. § 301.4(b). The regulations also provide for periodic post-segregation review of the inmate's circumstances at sixtyday intervals. 7 N.Y.C.R.R. § 301.4(d). Administrative segregation inmates are housed in the SHU and are subject to most of the restrictions that apply to disciplinary SHU inmates. Edmonson v. Coughlin, 21 F. Supp. 2d 242, 248-249 (W.D.N.Y. 1998). SHU inmates are confined in their cells between twenty-two and twenty-three hours per day, but are not completely restricted. Husbands v. McClellan, 990 F. Supp. 214, 217 (W.D.N.Y. 1998); see also 7 N.Y.C.R.R. pt. 304. In general, they are allowed two showers per week and one hour of outdoor exercise per day, unlimited legal visits and one non-legal visit per week and have access to counselors and sick call. Id. Additionally, they can participate in cell study programs and can receive books from the library. Id.
Since that initial determination, plaintiff's status has been subjected to periodic reviews at approximately sixty-day intervals pursuant to New York's prescribed regulatory protocol. See generally Amended Complaint (Dkt. No. 19). Plaintiff maintains that those periodic reviews have not been meaningfully conducted, but have taken into account past misconduct, reasons not originally cited for placing him in administrative segregation ( e.g. his murder conviction), and incidents for which he has been acquitted through the disciplinary process, which should have been expunged from his records. See, e.g., id. at ¶¶ 13-14 Plaintiff maintains that the periodic administrative reviews are a sham, that the reasons stated for retaining him in administrative segregation are a pretext, and that in reality he is being punished for having escaped on election day and, plaintiff maintains, costing Governor Mario Cuomo to the lose the gubernatorial election in 1994. See id. at ¶¶ 92-96.
According to the plaintiff, defendant LeClaire has had significant involvement in the process by which he has been confined for several years in administrative segregation. Plaintiff maintains that it is defendant LeClaire who is the ultimate decision-maker in the review process, see, e.g., Amended Complaint (Dkt. No. 19) ¶ 12, and that his signature appears on the periodic review forms. Id.
Plaintiff has complained regarding his continued administrative segregation through various avenues. On March 24, 2004, for example, he submitted a supplemental administrative appeal to former DOCS Commissioner Glenn Goord; that appeal was forwarded to defendant LeClaire. Amended Complaint (Dkt. No. 19) ¶ 15. Plaintiff subsequently wrote directly to defendant LeClaire regarding his sixty-day reviews, alleging that inaccurate information was being factored into the review process. Id. at ¶ 17. Plaintiff also wrote letters to the superintendent at Great Meadows requesting that the letters be taken into consideration at his periodic reviews. Id. at ¶¶ 21, 23, 25, 33, 54, 67. Plaintiff again wrote to former DOCS Commissioner Goord in connection with this continued administrative segregation on August 16, 2005; that letter also was referred to defendant LeClaire. Id. at ¶¶ 32, 34.
On September 25, 2007, plaintiff wrote to DOCS Commissioner Brian Fischer, questioning the need for his continued placement in administrative segregation. Amended Complaint (Dkt. No. 19) ¶ 60. In apparent response to that correspondence, plaintiff received a letter dated October 29, 2007 from defendant LeClaire stating that "[a]ll pertinent information, including your letter, will be included as part of the review process during the next meeting of the Ad Seg. Review Committee." Id. at ¶ 61. Commissioner Fischer also responded to plaintiff's September 25, 2007 correspondence by letter dated February 29, 2008, in which he wrote "your disciplinary record, and your attempt to escape, do not suggest that placement in general population is appropriate, your claims to the contrary notwithstanding." Id. at ¶ 63. On October 28, 2008, plaintiff wrote to New York State Governor David Patterson requesting a pardon and his release from administrative segregation. Id. at ¶ 75.
In addition to sending letters to DOCS officials, plaintiff has complained of his status through the filing of various grievances, including on July 27, 2007, May 20, 2009, and July 29, 2009. Amended Complaint (Dkt. No. 19) ¶¶ 56, 81, 84 and Exhs. A-Z. While the July 27, 2007 grievance was dismissed, the remaining two were unsuccessfully pursued by the plaintiff through the DOCS Central Office Review Committee ("CORC"). See id.
II. PROCEDURAL HISTORY
Plaintiff commenced this action on October 2, 2009, and later filed an amended complaint, with the court's approval. Dkt. Nos. 1, 19. In his complaint, as amended, plaintiff names Lucian J. LeClaire, Jr., the Deputy Commissioner of the DOCS, as the sole defendant and asserts a single claim alleging deprivation of his right to procedural due process as guaranteed under the Fourteenth Amendment. Id. Plaintiff's amended complaint seeks various forms of injunctive relief as well as compensatory and punitive damages. Id.
In lieu of answering plaintiff's amended complaint, on January 28, 2010 defendant filed a motion pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for dismissal. Dkt. No. 7. Plaintiff has since responded in opposition to defendant's motion, Dkt. No. 21, which is now fully briefed and ripe for determination and has been referred to me for the issuance of a report and recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B) and Northern District of New York Local Rule 72.3(c). See also Fed.R.Civ.P. 72(b).
Defendant's motion, which was filed in response to plaintiff's initial complaint, see Dkt. No. 7, was refiled and deemed to relate to plaintiff's amended complaint, as directed by Memorandum-Decision and Order issued by District Judge Gary L. Sharpe on May 18, 2010. See Dkt. No. 18.
III. DISCUSSION
A. Dismissal Motion Standard
A motion to dismiss a complaint, brought pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, calls upon a court to gauge the facial sufficiency of that pleading, utilizing as a backdrop a pleading standard which, though unexacting in its requirements, "demands more than an unadorned, the-defendant-unlawfully-harmed me accusation" in order to withstand scrutiny. Ashcroft v. Iqbal, ___ U.S. ___, ___, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 555, 127 S. Ct. 1955, (2007)). Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that a complaint contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). Id. While modest in its requirement, that rule commands that a complaint contain more than mere legal conclusions; "[w]hile legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Iqbal, 129 S. Ct. at 1950.
To withstand a motion to dismiss, a complaint must plead sufficient facts which, when accepted as true, state a claim which is plausible on its face. Ruotolo v. City of New York, 514 F.3d 184, 188 (2d Cir. 2008) (citing Twombly, 550 U.S. at 570, 127 S. Ct. at 1974). As the Second Circuit has observed, "[w]hile Twombly does not require heightened fact pleading of specifics, it does require enough facts to 'nudge [plaintiffs'] claims across the line from conceivable to plausible.'" In re Elevator Antitrust Litig., 502 F.3d 47, 50 (2d Cir. 2007) (quoting Twombly, 550 U.S. at 570, 127 S. Ct. at 1974).
In deciding a Rule 12(b)(6) dismissal motion, the court must accept the material facts alleged in the complaint as true and draw all inferences in favor of the non-moving party. Cooper v. Pate, 378 U.S. 546, 546, 84 S. Ct. 1723, 1734 (1964); Miller v. Wolpoff Abramson, LLP, 321 F.3d 292, 300 (2d Cir. 2003), cert. denied, 540 U.S. 823, 124 S. Ct. 153 (2003); Burke v. Gregory, 356 F. Supp. 2d 179, 182 (N.D.N.Y. 2005) (Kahn, J.). However, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Iqbal, 129 S. Ct. at 1949. In the wake of Twombly and Iqbal, the burden undertaken by a party requesting dismissal of a complaint under Rule 12(b)(6) remains substantial; the question presented by such a motion is not whether the plaintiff is likely ultimately to prevail, "'but whether the claimant is entitled to offer evidence to support the claims.'" Log On America, Inc. v. Promethean Asset Mgmt. L.L.C., 223 F. Supp.2d 435, 441 (S.D.N.Y. 2001) (quoting Gant v. Wallingford Bd. of Educ., 69 F.3d 669, 673 (2d Cir. 1995)) (citations and quotations omitted).
B. Personal Involvement
In his motion, defendant LeClaire first argues that plaintiff's complaint fails to plausibly allege his personal involvement in the constitutional deprivations alleged, and that all claims against him should be dismissed on that basis. In support of that argument defendant asserts that according to plaintiff's amended complaint, his role in the ongoing administrative segregation review process is limited to making a determination based upon information provided to him by his subordinates. Defendant maintains that plaintiff's claim that the information passed on to defendant LeClaire may have included unspecified new accusations which plaintiff was not afforded an opportunity to refute, allegations of conduct of which plaintiff was exonerated, and false information unknown to the defendant, does not inculpate LeClaire in the due process violation alleged.
Personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under section 1983. Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (citing Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir. 1991) and McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir. 1977), cert. denied, 434 U.S. 1087, 98 S. Ct. 1282 (1978)). As the Supreme Court has noted, a defendant may only be held accountable for his or her actions under section 1983. Iqbal, 129 S. Ct. at 1952. In order to prevail on a section 1983 cause of action against an individual, a plaintiff must therefore show some tangible connection between the constitutional violation alleged and that particular defendant. See Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986).
Defendant LeClaire is the Deputy Commissioner of the DOCS, and apparently the administrator tasked with oversight of the administrative segregation review process. As such, it appears that plaintiff's complaint may name him as a defendant because of his supervisory position. It is wellestablished, however, that a supervisor cannot be liable for damages under section 1983 solely by virtue of being a supervisor; there is no respondeat superior liability under section 1983. Richardson v. Goord, 347 F.3d 431, 435 (2d Cir. 2003); Wright, 21 F.3d at 501. Culpability on the part of a supervisory official for a civil rights violation can, however, be established in one of several ways, including when that individual 1) has directly participated in the challenged conduct; 2) after learning of the violation through a report or appeal, has failed to remedy the wrong; 3) created or allowed to continue a policy or custom under which unconstitutional practices occurred; 4) was grossly negligent in managing the subordinates who caused the unlawful event; or 5) failed to act on information indicating that unconstitutional acts were occurring. Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995); Wright, 21 F.3d at 501.
It remains to be seen how many of the Colon factors, if any, retain vitality in the wake of the Supreme Court's decision in Iqbal. The Second Circuit has yet to address the impact of Iqbal upon the categories of supervisory liability under Colon. Lower courts have struggled with this issue, and specifically whether Iqbal effectively calls into question certain prongs of the Colon five-part test for supervisory liability. See Sash, 674 F. Supp. 2d at 542-544; see also Stewart v. Howard, No. 9:09-CV-0069 (GLS/GHL), 2010 WL 3907227, at *12 n. 10 (N.D.N.Y. Apr. 26, 2010) ("The Supreme Court's decision in [ Iqbal] arguably casts in doubt the continued vitality of some of the categories set forth in Colon.") (citations omitted), report and recommendation adopted, 2010 WL 3907137 (Sept. 30, 2010). While some courts have taken the position that only the first and third of the five Colon categories remain viable and can support a finding of supervisory liability, see, e.g., Bellamy v. Mount Vernon Hosp., No. 07 CIV. 1801, 2009 WL 1835939, at *6 (S.D.N.Y. June 26, 2009), aff'd, 387 Fed. App'x 55 (2d Cir. 2010), others disagree and conclude that whether any of the five categories apply in any particular case depends upon the particular violations alleged and the supervisor's participatory role, see, e.g., D'Olimpio v. Crisafi, Nos. 09 Civ. 7283 (JSR), 09 Civ. 9952 (JSR), 2010 WL 2428128, at *5 (S.D.N.Y. Jun. 15, 2010); Qasem v. Toro, No. 09 Civ. 8361 (SHS), 2010 WL 3156031, at *4 (S.D.N.Y. Aug. 10, 2010).
In this instance plaintiff's amended complaint, when liberally construed and after drawing all inferences in his favor, sufficiently alleges defendant LeClaire's participation in the violations asserted. In it Proctor alleges, for example, that an appeal filed with Commissioner Goord on March 24, 2004, reflecting that a toenail clipper incident which may have been relied on in connection with his various administrative segregation reviews should have been expunged from plaintiff's records. See Amended Complaint (Dkt. No. 19) ¶ 15. Defendant LeClaire presumably was aware of that contention since, according to the plaintiff, Commissioner Goord forwarded the appeal to the defendant LeClaire. Id. Similarly, plaintiff alleges that on May 30, 2004 he wrote directly to defendant LeClaire, placing him on notice of his claim that inaccurate information was being relied upon in connection with the periodic administrative segregation reviews. Id. at ¶ 17. In light of plaintiff's claim that these and other communications were directly forwarded to LeClaire, who oversees the administrative review process, plaintiff has plausibly alleged that LeClaire was involved in making decisions based upon arguably false or improper information.
Plaintiff's amended complaint also alleges that pursuant to 7 N.Y.C.R.R. § 301.4 LeClaire was delegated the responsibility for making the final determination to maintain plaintiff in administrative segregation and that the periodic processes over which LeClaire has presided are a sham and do not represent meaningful reviews. See, e.g., Amended Complaint (Dkt. No. 19) ¶¶ 4, 20, 22, 24, 26, 27, 29, 30, 31, 35, 40, 41, 42, 43, 46, 50, 51, 52, 53, 55, 57, 59, 62, 66, 68, 71, 72, 73, 77, 78, 80, 82, and 88. This allegation similarly implicates defendant LeClaire directly in the constitutional violations alleged.
The governing DOCS regulations require review of administrative segregation status every sixty days. 7 N.Y.C.R.R. § 301.4(d). Pursuant to the outlined procedures the periodic reviews are general conducted by a three-member committee consisting of a representative of the facility executive staff, a security supervisor, and a member of the guidance and counseling staff, which is responsible for examining the inmate's institutional record and preparing and submitting to the superintendent or his or her designee a report setting forth the reasons why the inmate was initially put in administrative segregation, information regarding the inmate's subsequent behavior and attitude, and any other relevant factors in favor of retention or release. Id. That report, together with any statement from the inmate, is forwarded to the superintendent or designee who must then make a determination as to whether to retain or release the inmate from administrative segregation. Id. However, the regulation also allows the DOCS central office to conduct such periodic reviews, providing,
Where the deputy commissioner for correctional facilities has notified the superintendent that an inmate in administrative segregation is to receive central office review, the superintendent or designee shall a of every 60-day review thereafter, refer the committee report, and any written statement received from the inmate, to a three-member central office committee consisting of a representative from the office of facility operations, a member of the department's inspector general's staff, and an attorney from the office of counsel. The central office committee shall then complete its review and forward the paperwork along with its recommendation to the deputy commissioner for correctional facilities. Upon receipt of the materials from the central office committee, including any written statement received from the inmate, the deputy commissioner shall make the determination to retain the inmate in or release the inmate from administrative segregation.Id. at § 301.4(d)(3).
In sum, plaintiff's allegations, which at this early juncture must be accepted as true, suffice to assert a plausible claim of liability on the part of defendant LeClaire for the due process violation alleged.
C. Claim Preclusion
Although the question of periodic reviews was not initially presented in his complaint in Proctor I, plaintiff raised the issue in briefing on crossmotions for summary judgment. While Magistrate Judge Gustave J. DiBianco chose not to address the claim in his report and recommendation regarding those motions, in his decision addressing objections to the report and recommendation District Judge Glenn T. Suddaby initially concluded that the issue was not properly before the court, but nonetheless went on "in the interest of thoroughness" to address the merits of that claim. See 9:05-CV-0092 (GTS/GJD) Dkt. Nos. 104, 110. After reviewing plaintiff's motion submission, Judge Suddaby concluded as follows:
Here, the Court can find no evidence in the record that plaintiff continued to remain in administrative segregation as a result of a new reason that arose after the date on which he was originally placed in administrative segregation. Nor can the Court find any record evidence that Plaintiff's confinement is not being reviewed in some manner.Id., Dkt. No. 110, slip op. at 16. Defendant maintains that plaintiff's assertion of the argument in the prior action, together with the court's determination addressing its merits, warrant a finding of claim preclusion barring him from relitigating the administrative segregation review claim now raised.
"The preclusive effect of a judgment is defined by claim preclusion and issue preclusion, which are collectively referred to as 'res judicata.'" Taylor v. Sturgell, 553 U.S. 880, 892, 128 S. Ct. 2161, 2171 (2008). While under claim preclusion a final judgment forecloses successive litigation of the very same claim regardless if relitigation of the claim raises the same issues as in the prior suit, issue preclusion bars successive litigation of an issue of fact or law actually litigated and resolved by a court, even if the issue recurs in a different context in a new claim. Id. at 892, 128 S. Ct. at 2171 (citing New Hampshire v. Maine, 532 U.S. 742, 748-49, 121 S. Ct. 1808, 1814 (2001)). Both doctrines protect against "the expense and vexation attending multiple lawsuits, conserve judicial resources, and foster reliance on judicial action by minimizing the possibility of inconsistent decisions" while precluding parties from bringing claims they have already had a full and fair opportunity to litigate. Montana v. United States, 440 U.S. 147, 153-54, 99 S. Ct. 970, 973-74 (1979). Succinctly stated, "[t]he doctrine of res judicata . . . was established as a means to promote legal economy and certainty." Expert Electric, Inc. v. Levine, 554 F.2d 1227, 1232 (2d Cir.), cert. denied, 434 U.S. 903, 98 S. Ct. 3000 (1977).
"[C]laim preclusion generally prevents litigation of any ground that could have been advanced in the earlier suit in support of the claim . . . made there . . .". USM Corp. v. SPS Technologies, Inc., 694 F.2d 505, 508 (7th Cir. 1982), cert. denied, 462 U.S. 1107, 103 S. Ct. 2455 (1983). Before claim preclusion will bar a subsequent lawsuit, it must be shown that there was a final judgment on the merits in a previous proceeding, involving the same parties or their privies, and arising out of the same transaction or connected series of transactions is at issue. Marvel Characters, Inc. v. Simon, 310 F.3d 280, 286-87 (2d Cir. 2002); see also Faye v. South Colony Cent. Sch. Dist., 802 F.2d 21, 28 (2d Cir. 1986), overruled on other grounds by, Taylor v. Vermont Dep't of Educ., 313 F.3d 768 (2d Cir. 2002).
Clearly, plaintiff's administrative review due process claim should have been, and in fact was, raised in the prior action. By the time of plaintiff's submission of his summary judgment brief in that case on February 11, 2008, wherein he raised the issue, see Dkt. No. 98, twenty-five periodic reviews of administrative segregation determined had already been conducted. See Amended Complaint (Dkt. No. 19) ¶ 66. Plaintiff's amended complaint alleges nine additional periodic reviews occurring after February 11, 2008. It is true that the sufficiency of these more recent periodic reviews obviously was not directly addressed in Judge Suddaby's decision. This alone, however, is insufficient to bar the application of res judicata. Monahan v. New York City Dep't of Corr., 214 F.3d 275, 289 (2d Cir.) (citing cases), cert. denied, 531 U.S. 1035, 121 S. Ct. 623 (2000). Rather, the focus of the court's inquiry is on "whether the same transaction or connected series of transactions is at issue." Id. (quoting N.L.R.B. v. United Techologies Corp., 706 F.2d 1254, 1260 (2d Cir. 1983)) (emphasis in original). The term "transaction" is interpreted flexibly, using common sense, and recognizing the reality of circumstances at hand. Interoceanica Corp. v. Sound Pilots, Inc., 107 F.3d 86, 91 (2d Cir. 1997). The issue turns on whether the underlying facts are "'related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties' expectations or business understanding or usage.'" Id. at 90 (quoting Restatement (Second) of Judgments § 24(b)) (other citation omitted).
Plaintiff's due process claim in this case is the same as that advanced in Proctor I as it related to the periodic reviews pre-dating February of 2008. The origin of plaintiff's claim is his allegation that the original administrative segregation determination as well as the subsequent periodic reviews are and have been perfunctory and a sham, employed by defendant LeClaire as a pretext for indefinite punitive confinement of plaintiff in SHU. See Amended Complaint (Dkt. No. 19) ¶ 64. In fact, plaintiff's complaint alleges that the start of defendant's discriminatory policy or practice relating to these reviews occurred on or about February 23, 2004, see id. at ¶¶ 13-14, and that for each periodic review since April of 2008, defendant has continued to employ this policy and use material that has been expunged from his record, as well as erroneous information regarding past "assaults" on staff, and "the same issues, subjects, allegations, lies, twisted opinions and rote manner of answering these reviews." Id. at ¶ 77. Simply put, as plaintiff's own allegations make clear, "all of these facts derive ultimately from the same origin or motivation . . ." that drove his claims in his previous complaint. Waldman v. Village of Kiryas Joel, 207 F.3d 105, 111-12 (2d Cir. 2000). Turning to the second Interoceanica factor, this lawsuit would have formed a convenient trial unit with the previous action since both involve substantially the same occurrences regarding the plaintiff's periodic reviews of his administrative confinement, and third, "it would seem clear that treating the various overlapping facts as a single transaction or series of related transactions would have 'conform[ed] to the parties' expectations.'" Id. at 112 (quoting Interoceanica, 107 F.3d at 90).
Indeed, the plaintiff's position on the timeliness issue is supportive of a finding that claim preclusion should apply and bar litigation even with respect to subsequent reviews. In his opposition to the pending motion, Proctor argues that the statute of limitations does not bar this claim, invoking the continuing violation doctrine and alleging that the meaningless periodic reviews result from an overarching discriminatory policy or practice aimed at keeping him segregated indefinitely. Plaintiff's Opposition Brief (Dkt. No. 24) at pp. 9-11.
To be sure, allowing the plaintiff's claims to proceed in this action would contravene the paramount policy considerations underlying the doctrine of res judicata and serve only to invite multiple lawsuits involving the same parties and circumstances, which would also risk uncertainty. If the court were to entertain this action, each sixty-day interval when plaintiff's administrative confinement is reviewed could give rise to a new claim and expose the defendant to a new lawsuit even though there has been no change in the underlying facts and circumstances for defendant's determinations.
This is not to say, however, that a future action or series of future occurrences involving plaintiff's administrative segregation review could not at some point suffice to create a new, viable section 1983 action. See Waldman, 207 F.3d at 113. It may well be that some time in the future the plaintiff can sufficiently allege changed circumstances altering the factual predicate of his procedural due process claim such that it would not be barred by the original judgment. Monahan, 214 F.3d at 290. "Claims based on conduct or procedures which were not contemplated by, or a direct result of, the earlier action would not necessarily be precluded." Id.
While plaintiff is correct in his assertion that the periodic reviews must be "meaningful and not simply perfunctory", McClary v. Kelly, 4 F. Supp. 2d 195, 213 (W.D.N.Y. 1998) (citing Giano v. Kelly, 869 F. Supp. 143, 150-51 (W.D.N.Y. 1994)), the Supreme Court made it clear in Hewitt that they will not necessarily require that prison officials permit the submission of any additional evidence or statements, stating
[t]he decision whether a prisoner remains a security risk will be based on facts relating to a particular prisoner — which will have been ascertained when determining [whether] to confine the inmate to administrative segregation — and on the officials' general knowledge of prison conditions and tensions, which are singularly unsuited for "proof" in any highly structured manner. Likewise, the decision to continue confinement of an inmate pending investigation of misconduct charges depends upon circumstances that prison officials will be well aware of — most typically, the progress of the investigation.Hewitt, 459 U.S. at 477 n. 9, 103 S. Ct. at 874 n. 9. Indeed, as Judge Suddaby recognized in his decision in Proctor I, "'[t]he reviews do not require the present of the accused and do not require the reviewer to always consider new information, since the original reasons for placing the inmate in [administrate segregation] may continue to be compelling.'" Proctor I, Memorandum-Decision and Order (Dkt. No. 110) at p. 15 (quoting Giano v. Selsky, 91-CV-0166, 2002 WL 31002803, at *7 (N.D.N.Y. Sept 5, 2002) (Kahn, J.)). Thus, plaintiff's assertion that defendant is precluded from relying on past conduct is misplaced. Additionally, "[i]f the reasons for his confinement do not change, . . . the inmate need not be informed each time his confinement is reviewed. If the reasons for administrative segregation do change, [however,] the inmate should be informed of the new reasons and given an opportunity to respond." Giano, 2002 WL 31002803, at *7. At least one court has held that these essential elements of minimal due process are easily satisfied by the detailed regulations that govern placement of inmates in administrative segregation in DOCS facilities. McClary, 4 F. Supp. 2d at 213.
At this time, however, plaintiff challenges the very same alleged unconstitutional conduct relating to his sixty-day reviews. The discriminatory policy and practice complained of here not only should have been raised in connection with the earlier suit, but in fact was both raised and addressed by Judge Suddaby, and plaintiff is therefore barred by the doctrine of res judicata from raising it again here.
D. Issue Preclusion
Although defendant's motion does not directly raise the issue, plaintiff's claims are also subject to issue preclusion, a more narrow doctrine than claim preclusion often referred to as collateral estoppel. Issue preclusion bars a party that has had a full and fair opportunity to litigate an issue of fact from relitigating the same issue once it has been decided against that party or its privy. McKithen v. Brown, 481 F.3d 89, 105 (2d Cir. 2007), cert. denied, 552 U.S. 1179, 128 S. Ct. 1218 (2008); Marvel, 310 F.3d at 288-89.
In this instance, as was previously indicated, in his decision Judge Suddaby considered and addressed the merits of plaintiff's procedural due process claim stemming from the contention that period reviews of his administrative segregation status have not been meaningful, but instead are sham proceedings based upon false information. Accordingly, issue preclusion also bars litigation of the claim now raised.
E. Statute of Limitations
Defendant's third and final argument in this case is that plaintiff's claims are barred, at least in part, by the applicable statute of limitations. Consistent with the Supreme Court's pronouncement that actions brought under 42 U.S.C. § 1983 are subject to the limitations period derived from the general or residual statute of limitations for personal injury actions under the laws of the forum state, see Owens v. Okure, 488 U.S. 235, 249-50, 109 S. Ct. 573, 582 (1989), plaintiff's federal claim in this action is governed by the three-year statute of limitations which applies in New York to personal injury claims of an otherwise unspecified nature. See N.Y.C.P.L.R. § 214(5); see also Ormiston v. Nelson, 117 F.3d 69, 71 (2d Cir. 1997) (quoting Owens); Pinaud v. County of Suffolk, 52 F.3d 1139, 1156 (2d Cir. 1995); Lugo v. Senkowski, 114 F. Supp. 2d 111, 113 (N.D.N.Y. 2000) (Kahn, J.) (citing Pinaud and Owens). For purposes of gauging the timeliness of his claims, I have deemed plaintiff's complaint in this action to have been filed on September 30, 2009. Accordingly, any of plaintiff's claims that accrued before September 30, 2006 are untimely.
While plaintiff's complaint was not formally filed with the court until October 5, 2009, Dkt. No. 1, it is dated September 30, 2009. Affording plaintiff the benefit of the doubt, I have therefore treated the action as having been commenced on that earlier date, applying the prison mailbox rule recognized in this circuit and elsewhere as controlling for purposes of measuring a statute of limitations in an action brought by a prison inmate, see Houston v. Lack, 487 U.S. 266, 270-76, 108 S. Ct. 2379, 2382-85 (1988); Jones v. Waterbury Police Dep't, No. 04CV2137, 2005 WL 1185723, at *2 (D. Conn. May 12, 2005).
In certain circumstances, the continuing violation doctrine has been applied to toll the statute of limitations in the context of section 1983 claims. See Shomo v. City of New York, 579 F.3d 176, 182 (2d Cir. 2009) (finding the continuing violation doctrine can apply "when a prisoner challenges a series of acts that together comprise an Eighth Amendment claim of deliberate indifference to serious medical needs."); see also Matthews v. Connecticut Dep't of Pub. Safety, No. 3:10cv325, 2010 WL 3984645, at *6 (D. Conn. oct. 8, 2010) (applying continuing violation doctrine to a section 1983 First Amendment retaliation claim). To demonstrate entitlement to application of the doctrine, a plaintiff must establish both the existence of an ongoing unconstitutional policy or practice and one or more acts taken in furtherance of that policy within the governing limitation period. See National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114-15, 122 S. Ct. 2061 (2002);
In this case, again drawing all inferences in plaintiff's favor, I find that he has sufficiently alleged the existence of an unconstitutional policy and practice as well as manifestations of that policy occurring well within the three years statute of limitations. Accordingly, were his claims in this action not precluded by claim and issue preclusion, I would recommend rejection of defendant's statute of limitations argument finding that the plaintiff is entitled to the benefit of a continuing violation rule.
F. Whether to Permit Amendment
Generally, when a complaint filed by a pro se plaintiff is dismissed the plaintiff should be allowed to amend his pleading. See Gomez v. USAA Federal Savings Bank, 171 F.3d 794, 796 (2d Cir. 1999). However, an opportunity to amend is not required where "the problem with [plaintiff's] causes of action is substantive" such that "[b]etter pleading will not cure it." Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (finding that repleading would be futile) (citation omitted); see also Cortec Indus. Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir. 1991) ("Of course, where a plaintiff is unable to allege any fact sufficient to support its claim, a complaint should be dismissed with prejudice.") (affirming, in part, dismissal of claim with prejudice) (citation omitted); cf. Gomez, 171 F.3d at 796 (granting leave to amend is appropriate "unless the court can rule out any possibility, however unlikely it might be, that an amended complaint would succeed in stating a claim.").
Here, for the reasons discussed above, I find the deficiencies discerned with respect to plaintiff's claims in this action are substantive. Accordingly, I recommend a finding that providing an opportunity to amend would be futile.
IV. SUMMARY AND RECOMMENDATION
Plaintiff's claims in this action, addressing the constitutional sufficiency of the periodic administrative segregation reviews conducted in connection with his continued administrative segregation confinement, sufficiently allege defendant LeClaire's personal involvement in the claimed deprivation. I therefore recommend rejection of defendant's personal involvement argument. Defendant's statute of limitations argument is similarly deficient, since plaintiff has alleged the existence of a pattern and practice of unconstitutional behavior coupled with one or more instances in which that practice was carried out within the three years prior to commencement of suit.
Turning to defendant's claim preclusion argument, I find that the claims now raised should have been, and in fact were, presented in an earlier action which resulted in a determination adverse to the plaintiff, the court in Proctor I finding no existence of a pattern or practice suggesting an unconstitutional policy regarding those periodic reviews. Plaintiff's claims are therefore subject to dismissal on the basis of both claim preclusion and issue preclusion. Accordingly, it is hereby respectfully
RECOMMENDED that defendant's motion to dismiss (Dkt. No. 30) be GRANTED, and that plaintiff's complaint be DISMISSED in its entirety.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections must be filed with the clerk of the court within FOURTEEN days of service of this report. FAILURE TO SO OBJECT TO THIS REPORT WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993).
ORDERED the clerk is also serve a copy of the Report and Recommendation upon the parties in accordance with this court's local
Dated February 17, 2011
Syracuse, NY