Rodriguez v. Drown

Filing 27

MEMORANDUM-DECISION and ORDER: ORDERED that Magistrate Judge Lowe's Report-Recommendation (Dkt. No. 25 ) is ACCEPTED and ADOPTED in its entirety. ORDERED that Defendant's motion to dismiss (Dkt. No. 12 ) is GRANTED. ORDERED that Plainti ff's Complaint (Dkt. No. 1 ) is DISMISSED in its entirety, Plaintiff's Fourteenth Amendment claim being dismissed with prejudice, and his Eighth Amendment and state law claims being dismissed without prejudice, i.e., with leave to refile i n the event he can overcome the "favorable termination" rule established by Heck v. Humphrey, 512 U.S. 477 (1994), and Edwards v. Balisok, 520 U.S. 641 (1997). The clerk is directed to enter judgment in favor of the defendants and close th is case. The Court hereby certifies, for purposes of 28 U.S.C. § 1915(a)(3), that any appeal taken from this Decision and Order would not be taken in good faith. Signed by Judge Glenn T. Suddaby on 9/30/11. {order served via regular mail on all non-ecf parties}(nas)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
__________________________________________
JOSE RODRIGUEZ,
Plaintiff,
9:10-CV-1172
(GTS/GHL)

v.
ESTATE OF CURTIS DROWN,
Defendant.
_________________________________________
APPEARANCES:
JOSE RODRIGUEZ, 82-A-4529
Plaintiff, Pro Se
Upstate Correctional Facility
P.O. Box 2001
Marcy, New York 12953
HON. ERIC T. SCHNEIDERMAN
Attorney General for the State of New York
Counsel for Defendant
The Capitol
Albany, New York 12224

BRUCE J. BOVIN, ESQ.
Assistant Attorney General

HON. GLENN T. SUDDABY, United States District Judge
MEMORANDUM-DECISION and ORDER
Currently before the Court, in this pro se prisoner civil rights action filed by Jose
Rodriguez (“Plaintiff”) against the Estate of Curtis Drown (“Defendant”),1 are (1) Defendant’s
motion to dismiss Plaintiff’s Complaint for failure to state a claim upon which relief can be
granted pursuant to Fed. R. Civ. P. 12(b)(6) (Dkt. No. 12), (2) United States Magistrate Judge

1

Plaintiff’s Complaint originally asserted claims against Curtis Drown, a former
employee of the New York State Department of Correctional Services, in his official capacity.
(Dkt. No. 1.) However, Curtis Drown died on March 29, 2011. (Dkt. No. 15.) His estate was
substituted as the Defendant in this action on July 11, 2011. (Dkt. No. 23.)

George H. Lowe’s Report-Recommendation recommending that Defendant's motion be granted
(Dkt. No. 25), and (3) Plaintiff’s Objection to the Report-Recommendation (Dkt. No. 26). For the
reasons set forth below, the Report-Recommendation is accepted and adopted in its entirety;
Defendant’s motion is granted; and Plaintiff’s Complaint is dismissed in its entirety, his
Fourteenth Amendment claim being dismissed with prejudice, and his Eighth Amendment and
state law claims being dismissed without prejudice, i.e., with leave to refile in the event he can
overcome the “favorable termination” rule established by Heck v. Humphrey, 512 U.S. 477
(1994), and Edwards v. Balisok, 520 U.S. 641 (1997).
I.

RELEVANT BACKGROUND
A.

Plaintiff’s Complaint

Plaintiff filed his Complaint in this action on September 30, 2010. (Dkt. No. 1.)
Generally, construed with the utmost of liberality, Plaintiff's Complaint asserts the following
claims against Defendant: (1) a claim that, while Plaintiff was incarcerated at Mid-State
Correctional Facility in Marcy, New York, between April 29, 2009, and May 2, 2009, Defendant
violated Plaintiff’s right to due process under the Fourteenth Amendment by [a] conducting a
prison disciplinary hearing in which Defendant deliberately ignored the exculpatory eye-witness
testimony of a correctional officer (Corrections Officer L. Bailey) and “other documents
supporting Plaintiff’s innocence” of disciplinary charges arising from the death of another inmate,
[b] rendering a determination of guilt that was not supported by “substantial evidence,” and [c]
sentencing him to confinement in a Special Housing Unit for a period of a hundred and forty-four
months; (2) a claim Defendant violated Plaintiff’s right to be free from cruel and unusual
punishment under the Eighteenth Amendment by “maliciously and sadistically” subjecting

2

Plaintiff to the above-described unsupported disciplinary conviction and sentence; and (3) a claim
that, through his above-described wrongdoing, Defendant committed various (unspecified) “state
law tort[s],” which caused Plaintiff various (unspecified) “emotional injuries” and the “loss of
[unspecified] personal property.” (See generally Dkt. No. 1 [Plf.’s Compl.]). Familiarity with the
factual allegations supporting these claims in Plaintiff’s Complaint is assumed in this Decision
and Order, which is intended primarily for review by the parties. (Id.)
B.

Defendant’s Motion

On December 30, 2010, Defendant filed a motion to dismiss Plaintiff’s Complaint for
failure to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6).
(Dkt. No. 12.) Generally, Defendant’s motion asserts the following three arguments: (1)
Plaintiff’s due process claim under the Fourteenth Amendment should be dismissed because he
has failed to allege facts plausibly suggesting that Defendant’s disciplinary decision was not
based on at least “some evidence,” which is the correct standard governing such due process
claims; (2) because Plaintiff’s identical due process claim under the Fourteenth Amendment was
actually litigated by him and necessarily decided by the Third Department on September 23,
2010, in Rodriguez v. Fisher, 908 N.Y.S.2d 271 (N.Y. App. Div., 3d Dept., 2010), it is barred as a
matter of law by the doctrine of collateral estoppel; and (3) each of Plaintiff’s claims is precluded,
as a matter of law, by the “favorable termination” rule established by Heck v. Humphrey, 512
U.S. 477 (1994), and Edwards v. Balisok, 520 U.S. 641 (1997), because the subsequent criminal
proceeding against Plaintiff did not terminate in his favor (nor has his criminal conviction been
invalidated). (Dkt. No. 12, Attach. 1, at 6-9 [attaching pages “4” through “7” of Def.’s Memo. of
Law].)

3

On March 10, 2011, Plaintiff filed a response in opposition to Defendant’s motion. (Dkt.
No. 13.) Generally, construed with the utmost special liberality, Plaintiff’s response asserts the
following three arguments: (1) Plaintiff has stated a due process claim under the Fourteenth
Amendment because he has alleged facts plausibly suggesting that Defendant’s disciplinary
decision was not based on any evidence, as reflected in the hearing record (e.g., during the
disciplinary hearing, insufficient evidence was developed to justify Plaintiff’s conviction of the
weapons-possession charge and creating-a-disturbance charge, which were added on April 28,
2009); (2) the Third Department’s decision on September 23, 2010, in Rodriguez v. Fisher, 908
N.Y.S.2d 271 (N.Y. App. Div., 3d Dept., 2010), does not collaterally estop Plaintiff from filing
his due process claim in this action, because the issues raised in this case were not actually
litigated, and necessarily decided, in the prior case (and because his Uniform Sentence and
Commitment and criminal sentencing minutes may not be considered under the circumstances);
and (3) none of Plaintiff’s claims is precluded, as a matter of law, by the “favorable termination”
rule established by Heck v. Humphrey, 512 U.S. 477 (1994), and Edwards v. Balisok, 520 U.S.
641 (1997), because the only reason the subsequent criminal proceeding against him did not
terminate in his favor is that an improper confession (obtained from Plaintiff without a prior
Miranda warning) was erroneously admitted into evidence. (Id.)
On March 15, 2011, Defendant filed a letter asserting, in pertinent part, as follows:
“Plaintiff does not rebut either the factual assertions or legal arguments proffered by Mr. Drown
and raises no issues requiring a reply. Accordingly, we will rely on the arguments made in our
motion papers and will not file a reply.” (Dkt. No. 14.)

4

C.

Magistrate Judge Lowe’s Report-Recommendation

On September 1, 2011, Magistrate Judge Lowe issued a Report-Recommendation
recommending that Defendant’s motion be granted. (Dkt. No. 25.) More specifically, Magistrate
Judge Lowe recommended that Plaintiff’s Complaint be dismissed in its entirety, his Fourteenth
Amendment claim being dismissed with prejudice, and his Eighth Amendment and state law
claims being dismissed without prejudice, i.e., with leave to refile in the event he can overcome
the “favorable termination” rule established by Heck v. Humphrey, 512 U.S. 477 (1994), and
Edwards v. Balisok, 520 U.S. 641 (1997). (Dkt. No. 25, at 9-17.) In recommending that
Plaintiff’s Fourteenth Amendment claim should be dismissed, Magistrate Judge Lowe did not
limit his analysis to that portion of Plaintiff’s due process claim that alleged that Defendant’s
disciplinary decision was not supported by any evidence; he also addressed the remainder of
Plaintiff’s due process claim (including the procedure through which the hearing was conducted).
(Id. at 13-16.) Finally, because Magistrate Judge Lowe found that sufficient grounds existed on
which to base a dismissal of all of Plaintiff’s claims, he declined to address Defendant’s
alternative argument that Plaintiff’s claims should be dismissed based on the doctrine of collateral
estoppel. (Id. at n. 6.) Familiarity with the grounds of Magistrate Judge Lowe’s ReportRecommendation is assumed in this Decision and Order.
On September 12, 2011, Plaintiff submitted his Objections to the ReportRecommendation. (Dkt. No. 26.) Generally, Plaintiff’s Objections–which seek to attack
“Defendants’ Recommendation”–do not squarely address any particular recommendations issued
by Magistrate Judge Lowe. (Id.) However, construing Plaintiff’s Objections with the utmost of
special liberality, Plaintiffs’ Objections assert the following three arguments: (1) Plaintiff has

5

stated a due process claim under the Fourteenth Amendment because he has alleged facts
plausibly suggesting that Defendant’s disciplinary decision was not based on any evidence as
reflected in the hearing record (e.g., during the disciplinary hearing, insufficient evidence was
developed to justify Plaintiff’s conviction of the weapons-possession charge and creating-adisturbance charge, which were added on April 28, 2009) (see Dkt. No. 26, at ¶¶ 6-19); (2) the
Third Department’s decision on September 23, 2010, in Rodriguez v. Fisher, 908 N.Y.S.2d 271
(N.Y. App. Div., 3d Dept., 2010), does not collaterally estop Plaintiff from filing his due process
claim in this action, because the issues raised in this case are not the same as the issues raised in
the prior case (see Dkt. No. 26, at ¶ 4, 11, & 9, “Conclusion” Paragraph); and (3) none of
Plaintiff’s claims is precluded, as a matter of law, by the “favorable termination” rule established
by Heck v. Humphrey, 512 U.S. 477 (1994), and Edwards v. Balisok, 520 U.S. 641 (1997),
because the only reason the subsequent criminal proceeding against him did not terminate in his
favor is that Plaintiff’s improper confession was replied upon (see Dkt. No. 26, at 9, “Conclusion”
Paragraph).
II.

APPLICABLE LEGAL STANDARDS
A.

Standard of Review

When a specific objection is made to a portion of a magistrate judge's reportrecommendation, the Court subjects that portion of the report-recommendation to a de novo
review. Fed. R. Civ. P. 72(b)(2); 28 U.S.C. § 636(b)(1)(C). To be “specific,” the objection must,
with particularity, “identify [1] the portions of the proposed findings, recommendations, or report

6

to which it has an objection and [2] the basis for the objection.” N.D.N.Y. L.R. 72.1(c).2 When
performing such a de novo review, “[t]he judge may . . . receive further evidence. . . .” 28 U.S.C.
§ 636(b)(1). However, a district court will ordinarily refuse to consider evidentiary material that
could have been, but was not, presented to the magistrate judge in the first instance.3
When only a general objection is made to a portion of a magistrate judge's
report-recommendation, the Court subjects that portion of the report-recommendation to only a
clear error review. Fed. R. Civ. P. 72(b)(2),(3); Fed. R. Civ. P. 72(b), Advisory Committee
Notes: 1983 Addition.4 Similarly, when an objection merely reiterates the same arguments made

2

See also Mario v. P&C Food Markets, Inc., 313 F.3d 758, 766 (2d Cir. 2002)
(“Although Mario filed objections to the magistrate's report and recommendation, the statement
with respect to his Title VII claim was not specific enough to preserve this claim for review. The
only reference made to the Title VII claim was one sentence on the last page of his objections,
where he stated that it was error to deny his motion on the Title VII claim ‘[f]or the reasons set
forth in Plaintiff's Memorandum of Law in Support of Motion for Partial Summary Judgment.’
This bare statement, devoid of any reference to specific findings or recommendations to which
he objected and why, and unsupported by legal authority, was not sufficient to preserve the Title
VII claim.”).
3

See Paddington Partners v. Bouchard, 34 F.3d 1132, 1137-38 (2d Cir. 1994) (“In
objecting to a magistrate's report before the district court, a party has no right to present further
testimony when it offers no justification for not offering the testimony at the hearing before the
magistrate.”) [internal quotation marks and citations omitted]; Pan Am. World Airways, Inc. v.
Int'l Bhd. of Teamsters, 894 F.2d 36, 40, n.3 (2d Cir. 1990) (district court did not abuse its
discretion in denying plaintiff's request to present additional testimony where plaintiff “offered
no justification for not offering the testimony at the hearing before the magistrate”); cf. U. S. v.
Raddatz, 447 U.S. 667, 676, n.3 (1980) (“We conclude that to construe § 636(b)(1) to require the
district court to conduct a second hearing whenever either party objected to the magistrate's
credibility findings would largely frustrate the plain objective of Congress to alleviate the
increasing congestion of litigation in the district courts.”); Fed. R. Civ. P. 72(b), Advisory
Committee Notes: 1983 Addition (“The term ‘de novo’ does not indicate that a secondary
evidentiary hearing is required.”).
4

See also Brown v. Peters, 95-CV-1641, 1997 WL 599355, at *2-3 (N.D.N.Y.
Sept. 22, 1997) (Pooler, J.) [collecting cases], aff'd without opinion, 175 F.3d 1007 (2d Cir.
1999).
7

by the objecting party in its original papers submitted to the magistrate judge, the Court subjects
that portion of the report-recommendation challenged by those arguments to only a clear error
review.5 Finally, when no objection is made to a portion of a report-recommendation, the Court
subjects that portion of the report-recommendation to only a clear error review. Fed. R. Civ. P.
72(b), Advisory Committee Notes: 1983 Addition. When performing such a “clear error” review,
“the court need only satisfy itself that there is no clear error on the face of the record in order to
accept the recommendation.” Id.6
After conducing the appropriate review, the Court may “accept, reject, or modify, in
whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. §
636(b)(1)(C).
B.

Legal Standard Governing Motions to Dismiss Pursuant to
Fed. R. Civ. P. 12(b)(6)

It has long been understood that a dismissal for failure to state a claim upon which relief
can be granted, pursuant to Fed. R. Civ. P. 12(b)(6), can be based on one or both of two grounds:
(1) a challenge to the "sufficiency of the pleading" under Fed. R. Civ. P. 8(a)(2); or (2) a

5

See Mario, 313 F.3d at 766 (“Merely referring the court to previously filed papers
or arguments does not constitute an adequate objection under either Fed. R. Civ. P. 72(b) or
Local Civil Rule 72.3(a)(3).”); Camardo v. Gen. Motors Hourly-Rate Emp. Pension Plan, 806 F.
Supp. 380, 382 (W.D.N.Y. 1992) (explaining that court need not consider objections that merely
constitute a "rehashing" of the same arguments and positions taken in original papers submitted
to the magistrate judge); accord, Praileau v. Cnty. of Schenectady, 09-CV-0924, 2010 WL
3761902, at *1, n.1 (N.D.N.Y. Sept. 20, 2010) (McAvoy, J.); Hickman ex rel. M.A.H. v. Astrue,
07-CV-1077, 2010 WL 2985968, at *3 & n.3 (N.D.N.Y. July 27, 2010) (Mordue, C.J.); Almonte
v. N.Y.S. Div. of Parole, 04-CV-0484, 2006 WL 149049, at *4 (N.D.N.Y. Jan. 18, 2006) (Sharpe,
J.).
6

See also Batista v. Walker, 94-CV-2826, 1995 WL 453299, at *1 (S.D.N.Y. July
31, 1995) (Sotomayor, J.) (“I am permitted to adopt those sections of [a magistrate judge's]
report to which no specific objection is made, so long as those sections are not facially
erroneous.”) (internal quotation marks and citations omitted).
8

challenge to the legal cognizability of the claim. Jackson v. Onondaga Cnty., 549 F. Supp.2d
204, 211, nn. 15-16 (N.D.N.Y. 2008) (McAvoy, J., adopting Report-Recommendation on de novo
review).
Because such dismissals are often based on the first ground, a few words regarding that
ground are appropriate. Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that a
pleading contain "a short and plain statement of the claim showing that the pleader is entitled to
relief." Fed. R. Civ. P. 8(a)(2) [emphasis added]. In the Court’s view, this tension between
permitting a “short and plain statement” and requiring that the statement “show[]” an entitlement
to relief is often at the heart of misunderstandings that occur regarding the pleading standard
established by Fed. R. Civ. P. 8(a)(2).
On the one hand, the Supreme Court has long characterized the “short and plain” pleading
standard under Fed. R. Civ. P. 8(a)(2) as "simplified" and "liberal." Jackson, 549 F. Supp.2d at
212, n.20 (citing Supreme Court case). On the other hand, the Supreme Court has held that, by
requiring the above-described "showing," the pleading standard under Fed. R. Civ. P. 8(a)(2)
requires that the pleading contain a statement that "give[s] the defendant fair notice of what the
plaintiff’s claim is and the grounds upon which it rests." Jackson, 549 F. Supp.2d at 212, n.17
(citing Supreme Court cases) (emphasis added).
The Supreme Court has explained that such fair notice has the important purpose of
“enabl[ing] the adverse party to answer and prepare for trial” and “facilitat[ing] a proper decision
on the merits” by the court. Jackson, 549 F. Supp.2d at 212, n.18 (citing Supreme Court cases);
Rusyniak v. Gensini, 629 F. Supp.2d 203, 213 & n.32 (N.D.N.Y. 2009) (Suddaby, J.) (citing
Second Circuit cases). For this reason, as one commentator has correctly observed, the “liberal”
notice pleading standard "has its limits." 2 Moore’s Federal Practice § 12.34[1][b] at 12-61 (3d

9

ed. 2003). For example, numerous Supreme Court and Second Circuit decisions exist holding
that a pleading has failed to meet the “liberal” notice pleading standard. Rusyniak, 629 F.
Supp.2d at 213, n.22 (citing Supreme Court and Second Circuit cases); see also Ashcroft v. Iqbal,
129 S. Ct. 1937, 1949-52 (2009).
Most notably, in Bell Atlantic Corp. v. Twombly, the Supreme Court reversed an appellate
decision holding that a complaint had stated an actionable antitrust claim under 15 U.S.C. § 1.
Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955 (2007). In doing so, the Court "retire[d]" the
famous statement by the Court in Conley v. Gibson, 355 U.S. 41, 45-46 (1957), that "a complaint
should not be dismissed for failure to state a claim unless it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim which would entitle him to relief."
Twombly, 127 S. Ct. at 1968-69. Rather than turn on the conceivability of an actionable claim,
the Court clarified, the "fair notice" standard turns on the plausibility of an actionable claim. Id.
at 1965-74. The Court explained that, while this does not mean that a pleading need "set out in
detail the facts upon which [the claim is based]," it does mean that the pleading must contain at
least "some factual allegation[s]." Id. at 1965. More specifically, the "[f]actual allegations must
be enough to raise a right to relief above the speculative level [to a plausible level]," assuming (of
course) that all the allegations in the complaint are true. Id.
As for the nature of what is “plausible,” the Supreme Court explained that “[a] claim has
facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,
129 S.Ct. 1937, 1949 (2009). “[D]etermining whether a complaint states a plausible claim for
relief . . . [is] a context-specific task that requires the reviewing court to draw on its judicial
experience and common sense. . . . [W]here the well-pleaded facts do not permit the court to

10

infer more than the mere possibility of misconduct, the complaint has alleged–but it has not
show[n]–that the pleader is entitled to relief.” Iqbal, 129 S.Ct. at 1950 [internal quotation marks
and citations omitted]. However, while the plausibility standard “asks for more than a sheer
possibility that a defendant has acted unlawfully,” id., it “does not impose a probability
requirement.” Twombly, 550 U.S. at 556.
Because of this requirement of factual allegations plausibly suggesting an entitlement to
relief, “the tenet that a court must accept as true all of the allegations contained in the complaint is
inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action,
supported by merely conclusory statements, do not suffice.” Iqbal, 129 S. Ct. at 1949. Similarly,
a pleading that only “tenders naked assertions devoid of further factual enhancement” will not
suffice. Iqbal, 129 S.Ct. at 1949 (internal citations and alterations omitted). Rule 8 “demands
more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. (citations
omitted).
This pleading standard applies even to pro se litigants. While the special leniency
afforded to pro se civil rights litigants somewhat loosens the procedural rules governing the form
of pleadings (as the Second Circuit has observed), it does not completely relieve a pro se plaintiff
of the duty to satisfy the pleading standards set forth in Fed. R. Civ. P. 8, 10 and 12.7 Rather, as
both the Supreme Court and Second Circuit have repeatedly recognized, the requirements set
forth in Fed. R. Civ. P. 8, 10 and 12 are procedural rules that even pro se civil rights plaintiffs

7

See Vega v. Artus, 610 F. Supp.2d 185, 196 & nn.8-9 (N.D.N.Y. 2009) (Suddaby,
J.) (citing Second Circuit cases); Rusyniak, 629 F. Supp.2d at 214 & n.34 (citing Second Circuit
cases).
11

must follow.8 Stated more simply, when a plaintiff is proceeding pro se, "all normal rules of
pleading are not absolutely suspended." Jackson, 549 F. Supp.2d at 214, n.28 [citations
omitted].9
Finally, a few words are appropriate regarding what documents are considered when a
dismissal for failure to state a claim is contemplated. Generally, when contemplating a dismissal
pursuant to Fed. R. Civ. P. 12(b)(6) or Fed. R. Civ. P. 12(c), the following matters outside the
four corners of the complaint may be considered without triggering the standard governing a
motion for summary judgment: (1) documents attached as an exhibit to the complaint or answer,
(2) documents incorporated by reference in the complaint (and provided by the parties), (3)
documents that, although not incorporated by reference, are “integral” to the complaint (and are
provided by the parties), or (4) any matter of which the court can take judicial notice for the
factual background of the case.10 Moreover, in the Second Circuit, a pro se plaintiff’s papers in

8

See Vega, 610 F. Supp.2d at 196, n.10 (citing Supreme Court and Second Circuit
cases); Rusyniak, 629 F. Supp.2d at 214 & n.34 (citing Second Circuit cases).
9

It should be emphasized that Fed. R. Civ. P. 8's plausibility standard, explained in
Twombly, was in no way retracted or diminished by the Supreme Court's decision (two weeks
later) in Erickson v. Pardus, in which (when reviewing a pro se pleading) the Court stated,
"Specific facts are not necessary" to successfully state a claim under Fed. R. Civ. P. 8(a)(2).
Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007) [emphasis added]. That statement was merely
an abbreviation of the often-repeated point of law–first offered in Conley and repeated in
Twombly–that a pleading need not "set out in detail the facts upon which [the claim is based]" in
order to successfully state a claim. Twombly, 127 S. Ct. 1965, n.3 (citing Conley, 355 U.S. at 47)
[emphasis added]. That statement did not mean that all pleadings may achieve the requirement
of "fair notice" without ever alleging any facts whatsoever. Clearly, there must still be enough
fact set out (however set out, whether in detail or in a generalized fashion) to raise a right to
relief above the speculative level to a plausible level. See Rusyniak, 629 F. Supp.2d at 214 &
n.35 (explaining holding in Erickson).
10

See Fed. R. Civ. P. 10(c) (“A copy of any written instrument which is an exhibit
to a pleading is a part thereof for all purposes.”); Chambers v. Time Warner, Inc., 282 F.3d 147,
152 (2d Cir. 2009) (“The complaint is deemed to include any written instrument attached to it as
an exhibit or any statements or documents incorporated in it by reference.”) (internal quotation
12

response to a defendant’s motion to dismiss for failure to state a claim may be considered as
effectively amending the allegations of his complaint–to the extent those papers are consistent
with the allegations in the complaint.11
III.

ANALYSIS
As an initial matter, even when construed with the utmost of liberality, Plaintiff’s

Objections fail to specifically address Magistrate Judge Lowe’s recommendations. (Compare
Dkt. No. 25 with Dkt. No. 26.) Instead, Plaintiff’s Objections simply reiterate the arguments
Plaintiff presented in the opposition papers he submitted to Magistrate Judge Lowe. (Compare
Dkt. No. 26 with Dkt. No. 13.) As a result, and for the reasons explained above in Part II.A. of

marks and citations omitted); Int'l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72
(2d Cir.1995) (per curiam) (“[W]hen a plaintiff chooses not to attach to the complaint or
incorporate by reference a [document] upon which it solely relies and which is integral to the
complaint,” the court may nevertheless take the document into consideration in deciding [a]
defendant's motion to dismiss, without converting the proceeding to one for summary
judgment.”) (internal quotation marks and citation omitted); L-7 Designs, Inc. v. Old Navy, LLC,
No. 10-573, 2011 WL 2135734, at *1 (2d Cir. June 1, 2011) (explaining that conversion from a
motion to dismiss for failure to state a claim to a motion for summary judgment is not necessary
under Fed. R. Civ. P. 12[d] if the “matters outside the pleadings” in consist of [1] documents
attached to the complaint or answer, [2] documents incorporated by reference in the complaint
(and provided by the parties), [3] documents that, although not incorporated by reference, are
“integral” to the complaint, or [4] any matter of which the court can take judicial notice for the
factual background of the case).
11

See Drake v. Delta Air Lines, Inc., 147 F.3d 169, 170 n. 1 (2d Cir. 1998) (per
curiam) (“[W]e deem Drake's complaint to include the facts contained in his memorandum of
law filed in response to Delta's 1996 motion to dismiss.”); Gill v. Mooney, 824 F.2d 192, 195 (2d
Cir. 1987) (“In his affidavit submitted in opposition to defendants' motion to dismiss, Gill asserts
that Mooney's actions amounted to deliberate and willful indifference. Liberally construed under
pro se pleading standards, Gill's allegations against Mooney involve more than ordinary lack of
due care for the prisoner's interests or safety, . . . and therefore state a colorable claim under the
Eighth and Fourteenth Amendments.”) (internal quotation marks and citation omitted);
Donhauser v.Goord, 314 F. Supp. 2d 119, 212 (N.D.N.Y.) (Sharpe, M.J.) (“[I]n cases where a
pro se plaintiff is faced with a motion to dismiss, it is appropriate for the court to consider
materials outside of the complaint to the extent they “are consistent with the allegations in the
complaint.”) (collecting district court cases), vacated on other grounds, 317 F. Supp. 2d 160
(N.D.N.Y. 2004) (Hurd, J.).
13

this Decision and Order, the Court need review the Report-Recommendation only for clear
error.12
After carefully reviewing all of the papers in this action, including Magistrate Judge
Lowe's Report-Recommendation, and Plaintiff’s Objection thereto, the Court concludes that
Magistrate Judge Lowe's Report-Recommendation is correct in all respects. (Dkt. No. 25
[Report-Recommendation].) Magistrate Judge Lowe employed the proper standards, accurately
recited the facts, and reasonably applied the law to those facts. (Id.) As a result, the Court adopts
the Report-Recommendation in its entirety for the reasons stated therein.
The Court would add only four points. First, Magistrate Judge Lowe’s thorough
Report-Recommendation would survive even de novo review.
Second, as stated above in Part I.C. of this Decision and Order, in recommending that
Plaintiff’s Fourteenth Amendment claim should be dismissed, Magistrate Judge Lowe did not
limit his analysis to that portion of Plaintiff’s due process claim that alleged that Defendant’s
disciplinary decision was not supported by any evidence; he also addressed the remainder of
Plaintiff’s due process claim (including the procedure through which the hearing was conducted).
(Dkt. No. 25, at 13-16.) While Defendant did not specifically challenge this portion of Plaintiff’s
due process claim in his memorandum of law (no doubt because it takes an extension of special
solicitude to Plaintiff to discern that portion of his claim in his Complaint), it was proper for
Magistrate Judge Lowe to do so pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. §
1915A(b).
12

The Court notes that Plaintiff received adequate notice of his duty to specifically
identify the portions of the proposed findings, recommendations, or report to which he has an
objection and the basis for the objection. For example, during the time in question, copies of the
Court’s Local Rules of Practice (including N.D.N.Y. L.R. 72.1, which contains the notice in
question) and Pro Se Handbook (page 31 of which also contains the notice in question) were on
file at the correctional facility at which Plaintiff was incarcerated.
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Third, Magistrate Judge Lowe correctly found that Plaintiff’s Fourteenth Amendment
claim should be dismissed with prejudice, due to the substantive nature of the problems with that
claim. (Dkt. No. 25, at 16.)
Fourth, because Magistrate Judge Lowe (correctly) exercised his discretion to not reach
the merits of Defendant’s alternative argument that Plaintiff’s due process claim under the
Fourteenth Amendment should be dismissed based on the doctrine of collateral estoppel, the
Court need not, and will not, linger on that alternative argument, other than to briefly express
some skepticism with regard to it. This is because, generally, a prior unfavorable determination,
in an Article 78 action brought by a prisoner against prison officials in their official capacities,
does not serve to collaterally estop that prisoner from subsequently commencing a 42 U.S.C. §
1983 civil rights action for damages against a prison officials in his individual capacity, because
the relief sought in the Section 1983 action was unavailable in the Article 78 action.13 Rather,

13

See Hicks v. Richard Low, 309 F. App’x 472, 474 (2d Cir. 2009) (“Hicks argues
that the New York state court Article 78 proceeding collaterally estops the Defendants-Appellees
from relitigating the issue of whether a due process violation occurred. We disagree. Unlike the
Article 78 proceeding, which could only be brought against the agency and the officers in their
official capacities, in this case the defendants are being sued as individuals. Further, the defenses
of qualified immunity and lack of personal involvement were not available to the defendants in
the Article 78 proceeding, nor were money damages at stake.”); Ford v. Krusen, 06-CV-0890,
2009 WL 959534, at *6 (N.D.N.Y. Apr. 6, 2009) (Report-Recommendation by Peebles, M.J.,
adopted by Suddaby, J.) (“[T]he prior unfavorable Article 78 determination [brought by the
prisoner-plaintiff against prison officials] did not serve to foreclose the [prisoner-]plaintiff from
commencing this subsequent section 1983 civil rights action [against prison officials] for
damages, since such relief is unavailable in an Article 78 proceeding.”); Proctor v. Kelly, 05CV-0692, 2008 WL 5243925, at *8, n.20 (N.D.N.Y. Dec. 16, 2008) (Suddaby, J.) (“The Court
would only note that the doctrine of collateral estoppel does not appear to apply under the
circumstances. Among other things, Plaintiff sued Defendant Goord is his official capacity in his
Article 78 proceeding, and he now sues Defendant Goord in his individual or personal
capacity.”); Fletcher v. Goord, 07-CV-0707, 2008 WL 4426763, at *10 (N.D.N.Y. Sept. 25,
2008) (Report-Recommendation by Lowe, M.J., adopted by Sharpe, J.) (“Simply stated, I find
nothing in Justice Ceresia's ruling saying that Plaintiff is not entitled to money damages due to
the miscalculation. The issue may have been presented to the New York State Supreme Court in
a vague and obscure way (due to Plaintiff's request for “any other form of relief” in his Petition),
but it does not appear to have been squarely decided by the Supreme Court, nor does it appear to
have been essential to the Court's decision.”).
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here, that claim is dismissed for the reasons stated earlier.
ACCORDINGLY, it is
ORDERED that Magistrate Judge Lowe’s Report-Recommendation (Dkt. No. 25) is
ACCEPTED and ADOPTED in its entirety; and it is further
ORDERED that Defendant’s motion to dismiss (Dkt. No. 12) is GRANTED; and it is
further
ORDERED that Plaintiff’s Complaint (Dkt. No. 1) is DISMISSED in its entirety,
Plaintiff’s Fourteenth Amendment claim being dismissed with prejudice, and his Eighth
Amendment and state law claims being dismissed without prejudice, i.e., with leave to refile in
the event he can overcome the “favorable termination” rule established by Heck v. Humphrey,
512 U.S. 477 (1994), and Edwards v. Balisok, 520 U.S. 641 (1997). The clerk is directed to enter
judgment in favor of the defendants and close this case.
The Court hereby certifies, for purposes of 28 U.S.C. § 1915(a)(3), that any appeal taken
from this Decision and Order would not be taken in good faith.
Dated: September 30, 2011
Syracuse, New York

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