Toliver v. Fischer et al
MEMORANDUM-DECISION AND ORDER: ORDERED, that Magistrate Judge Baxter's November 17, 2014 155 Report-Recommendation is Adopted in its entirety for the reasons set forth therein. ORDERED that Defendants' motion to dismiss (Dkt. No. 134 ) is GRANTED in part and DENIED in part. ORDERED that Defendants' motion to dismiss is GRANTED as to Defendants Fischer, Maly, and LeClaire, and as to Plaintiff's conspiracy claim. ORDERED that Defendants' motion to dismiss is otherw ise DENIED. ORDERED that Plaintiff's motions for injunctive relief and for sanctions (Dkt. Nos. 161 , 163 , 164 & 167 ) are DENIED. ORDERED that Plaintiff's appeals (Dkt. Nos. 144 , 149 , 153 & 154 ) are DENIED. ORDERED that P laintiff's motion to amend/supplement his amended complaint (Dkt. No. 158 ) is DENIED. ORDERED that all future pretrial matters are referred to Magistrate Judge Baxter. Signed by U.S. District Judge Mae A. D'Agostino on 1/29/15. (served on plaintiff by regular mail) (alh, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
BRIAN FISCHER, ET AL. ,
Shawangunk Correctional Facility
P.O. Box 700
Wallkill, New York 12589
Plaintiff pro se
OFFICE OF THE NEW YORK
STATE ATTORNEY GENERAL
Albany, New York 12224
Attorneys for Defendants
(except Defendant North)
CATHY Y. SHEEHAN, AAG
Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
On January 17, 2012, Plaintiff commenced this civil rights action, pursuant to 42 U.S.C. §
1983, alleging that twenty employees of the New York State Department of Corrections and
Community Supervision ("DOCCS") violated his constitutional rights during his confinement at
the Shawangunk Correctional Facility ("Shawangunk"). Dkt. No. 1. By Decision and Order
dated May 3, 2012, this Court dismissed, sua sponte, Defendants Schneiderman, Bellamy, and
Prack from the action because the complaint did not state facts suggesting their personal
involvement in the alleged violations of Plaintiff's constitutional rights. Dkt. No. 9 at 8-10.
On June 28, 2012, Plaintiff filed an amended complaint (Dkt. No. 27), which, by Decision
and Order dated December 6, 2012 (Dkt. No. 85), this Court accepted for filing against seventeen
of the original Defendants, as well as Correction Officer ("C.O.") North, who was not named in
the original complaint. Liberally construed, the surviving claims in Plaintiff's amended complaint
include (1) a First Amendment claim, based on Defendants' alleged filing of false misbehavior
reports against Plaintiff, in retaliation for his pursuit of complaints, grievances, appeals, and
Article 78 actions; (2) an equal protection claim based on alleged discrimination against Plaintiff
because of his race, disability, and/or sexual orientation; (3) a conspiracy claim related to the
retaliation and discrimination claims; (4) a Fourteenth Amendment claim alleging denial of
procedural due process in connection with various disciplinary proceedings; and (5) an Eighth
Amendment claim for failure to provide adequate medical care. Dkt. No. 27 at 8-9, 35. Plaintiff
seeks both monetary and injunctive relief. Dkt. No. 27 at 14.
Defendants filed a motion, pursuant to Fed. R. Civ. P. 12(b)(6), seeking dismissal of
Plaintiff's amended complaint in its entirety, on behalf of all but one of the remaining Defendants.
See Dkt. No. 134.1 Plaintiff responded to the motion to dismiss, and defense counsel chose not to
file a reply. Dkt. No. 145; Dkt. No. 150. On November 17, 2014, Magistrate Judge Baxter issued
a Report-Recommendation recommending that the Court grant-in-part and deny-in-part
Defendants' motion to dismiss. Dkt. No. 155.
Currently before the Court are Plaintiff's objections to Magistrate Judge Baxter's Report-
C.O. North, who is no longer an active DOCCS employee (Dkt. No. 91), has not been
served with the amended complaint and is not currently represented in this action.
Recommendation. Dkt. No. 159. Also before the Court are Plaintiff's requests for a temporary
restraining order, requests for sanctions, and an order against further retaliation resulting from the
current lawsuit. Dkt. Nos. 161, 163, 167 & 168. Defendants have opposed Plaintiff's motions.
Dkt. No. 166.
Facts and Contentions
For an overview of the facts and contentions, refer to Magistrate Judge Baxter's Report-
Recommendation. See Dkt. No. 155 at 3-5.
Magistrate Judge Baxter's November 17, 2014 Report-Recommendation
In his Report-Recommendation, Magistrate Judge Baxter recommended that the Court
should grant Defendants' motion to dismiss in regard to Defendants Fischer, Maly, and LeClaire,
and as to Plaintiff's conspiracy claim. See Dkt. No. 155. Magistrate Judge Baxter further
recommended that the remainder of the motion to dismiss be denied. See id.
Specifically, Magistrate Judge Baxter recommended that Defendants Fischer, LeClaire,
and Maly should be dismissed "because [P]laintiff has not adequately alleged that they were
personally involved in any constitutional violations. However, the allegations of personal
involvement with respect to [D]efendants Smith and Pingott are adequate . . . ." Dkt. No. 155 at
6-7. Next, Magistrate Judge Baxter recommends that the retaliation charge involving Defendant
Budziszewski stand, because "[t]he allegations . . . state a plausible claim of retaliation that
cannot be dismissed under Rule 12(b)(6)." Id. at 18. The Report-Recommendation did not
address the retaliation charge against Defendant North, because "[D]efendant North has not
appeared in this case and is not a party to the pending Rule 12(b)(6) motions . . . ." Id. at 18 n.17.
Additionally, Magistrate Judge Baxter found that Plaintiff's equal protection claim is
adequate to survive a Rule 12(b)(6) motion because Plaintiff's allegations "are sufficient to state a
'class of one' equal protection claim, and perhaps a discrimination claim based on race and/or
sexual orientation." Id. at 22. Magistrate Judge Baxter recommended that the conspiracy claim
be dismissed under the "intracorporate conspiracy doctrine," because conclusory allegations by
Plaintiff of Defendants' "'personal' agenda" are not sufficient to plausibly suggest that Defendants
acted outside the scope of their employment. Id. at 25.
Due to Plaintiff's allegations, including that the hearing officer said to Plaintiff "[e]very
time you get a ticket you will be found guilty regardless. . . . I ain't fair and impartial[,]"
Magistrate Judge Baxter found Plaintiff has stated a plausible denial of procedural due process
claim. Id. at 27; Dkt. No. 27 at 57. Finally, Magistrate Judge Baxter recommended that the Court
deny the motion to dismiss in regard to Plaintiff's deliberate indifference claim because, at this
stage, Plaintiff's allegation "that he suffered extreme pain for approximately 30 minutes before the
identified defendants allowed him to get medical attention[,]" is sufficient to survive the motion.
Dkt. No. 155 at 31.
Plaintiff first objects to the dismissal of Defendant Maly from the lawsuit. Dkt. No. 159 at
2. He "seeks to supplement the complaint to detail [additional] constitutional deprivations." Id.
According to the Report-Recommendation, "[t]he only specific allegation in the amended
complaint regarding [D]efendant Maly is that, as Acting Superintendent, he denied one of
[P]laintiff's grievances . . . ." Id. at 9. Plaintiff wishes to add that "Defendant [Maly] sent
plaintiff to 'S.H.U.' for 90 days in direct retaliation to this lawsuit . . . ." Dkt. No. 159 at 2.
Plaintiff next objects to the dismissal of Defendant Fischer from the lawsuit. Id. at 3.
Plaintiff has not introduced any new arguments and simply repeats arguments Magistrate Judge
Baxter's Report-Recommendation has already addressed. Id. This includes "allowing a pattern
o[f] retaliation and discrimination by ignoring plaintiff's various grievances and Article 78
Third, Plaintiff objects to the dismissal of Defendant LeClaire from the lawsuit. Dkt. No.
159 at 4. Plaintiff alleges Defendant LeClaire condoned the retaliatory conduct of officers under
his command, and that he "knew or should have known of the continued constitutional violations .
. . ." Id.
Finally, Plaintiff objects to the dismissal of the conspiracy claim, and alleges that
Defendants "had a meeting of the minds in their individual capacities for a common goal." Id. at
5. Plaintiff further claims that "Defendants . . . conspire[d] with each other to hurt plaintiff, to
keeplock plaintiff, to place plaintiff in SHU, [and] to take all privileges away from plaintiff . . . ."
Plaintiff's December 22, 2014, and December 29, 2014 requests for preliminary
injunctive relief and sanctions
Plaintiff requests a preliminary injunction to place him in protective custody, and he
requests sanctions against Defendants for each day he remains outside protective custody. Dkt.
No. 161 at 3-4. Plaintiff claims he "is in danger [and he has] been forced to live in general
population where [his] enemies are." Id. at 3. He also claims that Defendants refused to place
Plaintiff back in protective custody so that he "can get physically assaulted." Id. at 2. Finally,
Plaintiff seeks an order against further retaliation resulting from this lawsuit. Id. at 4.
In a submission filed seven days later, Plaintiff again requests sanctions, a temporary
restraining order, and an order against further retaliation due to the current proceedings. Dkt. No.
163 at 1. Plaintiff states that on December 18, 2014, "Defendants Keys, Sarkowicz, Korines, and
co-working 'friends'" came to his cell and threatened his life, continued to file false misbehavior
reports, and threatened to break his neck due to his participation in a hunger strike. Id. at 2.
Plaintiff also claims that inmates who remember him from before his placement in protective
custody "reminded [him] that 'the first opportunity to get [him] for snitching [he] will be "done
off."'" Id. at 3.
Defendants oppose Plaintiff's requests injunctive relief. Specifically, Defendants argue
that "Plaintiff's request should be denied because the requested relief does not relate to any of the
allegations of the underlying amended complainant or the proposed second amended complaint."
Dkt. No. 166 at 1. Defendants further argue that Plaintiff's allegations are entirely speculative,
and that these complaints "should be addressed through administrative channels at Shawangunk
Correctional Facility . . . ." Id. at 2.
Plaintiff's January 5 and 11, 2015 requests for sanctions and injunctive relief
In a letter request dated January 5, 2015, Plaintiff requests "additional sanctions for
"further" retaliation . . . as [he] was thrown out of [his] wheelchair[,] punched in the face and
slapped and kicked by C.O. Stokes on December 22, 2014." Dkt. No. 167 at 2. Plaintiff also
requests that the Court order his transfer from his current facility due to the alleged assault by
C.O. Stokes, who is not a Defendant in this matter. Id. at 3. Plaintiff notes that Defendant
Gardner "has recently issued a disposition placing [him] in keeplock with 30 days loss of all
privileg[es] without" the required procedural due process. Id. at 4. Finally, Plaintiff alleges that
the prison medical personnel refuse to examine him, and he "is in pain - sick call is being denied
to [him] by medical staff when [they] make their tours." Id. at 5.
In a letter dated January 11, 2015, Plaintiff cites a Supreme Court case for the proposition
that an inmate "may seek injunctive relief based on the claim that defendant corrections officials
are knowingly and unreasonably disregarding an objectively intolerable risk of harm and will
continue absent a court order directing otherwise." Dkt. No. 168 at 8. Finally, Plaintiff objects to
his current placement in the general prison population due to his status as "victim prone" of being
victimized by other inmates, as defined under 7 N.Y.C.R.R. § 1701.5(c)(4)(i).
Standard of Review
1. Review of a report-recommendation
When a party files specific objections to a magistrate judge's report-recommendation, the
district court makes a "de novo determination of those portions of the report or specified proposed
findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1) (2006). When
a party, however, files "[g]eneral or conclusory objections or objections which merely recite the
same arguments [that he presented] to the magistrate judge," the court reviews those
recommendations for clear error. O'Diah v. Mawhir, No. 9:08-CV-322, 2011 WL 933846, *1
(N.D.N.Y. Mar. 16, 2011) (citations and footnote omitted). After 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) (2006).
A litigant's failure to file objections to a magistrate judge's report-recommendation, even
when that litigant is proceeding pro se, waives any challenge to the report on appeal. See Cephas
v. Nash, 328 F.3d 98, 107 (2d Cir. 2003) (holding that, "[a]s a rule, a party's failure to object to
any purported error or omission in a magistrate judge's report waives further judicial review of the
point" (citation omitted)). A pro se litigant must be given notice of this rule; notice is sufficient if
it informs the litigant that the failure to timely object will result in the waiver of further judicial
review and cites pertinent statutory and civil rules authority. See Frank v. Johnson, 968 F.2d 298,
299 (2d Cir. 1992); Small v. Sec'y of Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989)
(holding that a pro se party's failure to object to a report and recommendation does not waive his
right to appellate review unless the report explicitly states that failure to object will preclude
appellate review and specifically cites 28 U.S.C. § 636(b)(1) and Rules 72, 6(a) and former 6(e)
of the Federal Rules of Civil Procedure).
2. Motion to dismiss standard
A motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure tests the legal sufficiency of the party's claim for relief. See Patane v.
Clark, 508 F.3d 106, 111-12 (2d Cir. 2007). In considering the legal sufficiency, a court must
accept as true all well-pleaded facts in the pleading and draw all reasonable inferences in the
pleader's favor. See ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007)
(citation omitted). This presumption of truth, however, does not extend to legal conclusions. See
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). Although a court's review of a
motion to dismiss is generally limited to the facts presented in the pleading, the court may
consider documents that are "integral" to that pleading, even if they are neither physically
attached to, nor incorporated by reference into, the pleading. See Mangiafico v. Blumenthal, 471
F.3d 391, 398 (2d Cir. 2006) (quoting Chambers v. Time Warner, Inc., 282 F.3d 147, 152-53 (2d
To survive a motion to dismiss, a party need only plead "a short and plain statement of the
claim," see Fed. R. Civ. P. 8(a)(2), with sufficient factual "heft to 'sho[w] that the pleader is
entitled to relief.'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007) (quotation omitted).
Under this standard, the pleading's "[f]actual allegations must be enough to raise a right of relief
above the speculative level," see id. at 555 (citation omitted), and present claims that are
"plausible on [their] face," id. at 570. "The plausibility standard is not akin to a 'probability
requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully."
Iqbal, 556 U.S. at 678 (citation omitted). "Where a complaint pleads facts that are 'merely
consistent with' a defendant's liability, it 'stops short of the line between possibility and
plausibility of "entitlement to relief."'" Id. (quoting [Twombly, 550 U.S.] at 557, 127 S. Ct. 1955).
Ultimately, "when the allegations in a complaint, however true, could not raise a claim of
entitlement to relief," Twombly, 550 U.S. at 558, or where a plaintiff has "not nudged [its] claims
across the line from conceivable to plausible, the complaint must be dismissed[,]" id. at 570.
Despite this recent tightening of the standard for pleading a claim, complaints by pro se
parties continue to be accorded more deference than those filed by attorneys. See Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (quotation omitted). As such, Twombly and Iqbal
notwithstanding, this Court must continue to "'construe [a complaint] broadly, and interpret [it] to
raise the strongest arguments that [it] suggests.'" Weixel v. Bd. of Educ., 287 F.3d 138, 146 (2d
Cir. 2002) (quotation omitted); Lopez v. Jet Blue Airways, 662 F.3d 593, 596 (2d Cir. 2011)
When a pro se complaint fails to state a cause of action, the court generally "should not
dismiss without granting leave to amend at least once when a liberal reading of the complaint
gives any indication that a valid claim might be stated." Cuoco v. Moritsugu, 222 F.3d 99, 112
(2d Cir. 2000) (internal quotation and citations omitted). Of course, an opportunity to amend is
not required where "[t]he problem with [the plaintiff's] cause of action is substantive" such that
"better pleading will not cure it." Id. (citation omitted).
3. 42 U.S.C. § 1983
Section 1983 imposes liability for "conduct which 'subjects, or causes to be subjected' the
complainant to a deprivation of a right secured by the Constitution and laws." Rizzo v. Goode,
423 U.S. 362, 370-71 (1976) (quoting 42 U.S.C. § 1983). Not only must the conduct deprive the
plaintiff of rights and privileges secured by the Constitution, but the actions or omissions
attributable to each defendant must be the proximate cause of the injuries and consequent
damages that the plaintiff sustained. See Brown v. Coughlin, 758 F. Supp. 876, 881 (S.D.N.Y.
1991) (citing Martinez v. California, 444 U.S. 277, 100 S. Ct. 553, 62 L. Ed. 2d 481, reh. denied,
445 U.S. 920, 100 S. Ct. 1285, 63 L. Ed. 2d 606 (1980)). As such, for a plaintiff to recover in a
section 1983 action, he must establish a causal connection between the acts or omissions of each
defendant and any injury or damages he suffered as a result of those acts or omissions. See id.
(citing Givhan v. Western Line Consolidated School District, 439 U.S. 410, 99 S. Ct. 693, 58 L.
Ed. 2d 619 (1979)) (other citation omitted).
Plaintiff's motion to amend and supplement the amended complaint
On December 18, 2014, the Court received a motion from Plaintiff seeking to supplement
the amended complaint, which included the proposed supplemental amended pleading. See Dkt.
No. 158. The motion seeks to add additional claims and Defendants, several of whom are
employed at Upstate Correction Facility. See Dkt. No. 158-2.
" Federal Rule of Civil Procedure 15(a) provides that any time after a responsive pleading
is served a party must seek leave from the court to amend a pleading. Rule 15(a) specifically
states that leave shall be freely given when justice so requires." LaBarbera v. Audax Const.
Corp., 971 F. Supp. 2d 273, 284 (E.D.N.Y. 2013) (citing Fed. R. Civ. P. 15(a)). "However, in
Foman v. Davis, 371 U.S. 178, 83 S. Ct. 227, 9 L. Ed. 2d 222 (1962), the Supreme Court stated
that denial of a Rule 15(a) motion may be appropriate in instances of 'undue delay, bad faith or
dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing party by virtue of allowance of the
amendment, futility of the amendment, etc.'" Id. The decision to grant or deny a Rule 15(a)
motion to amend is committed to the sound discretion of the district court. See id.
"Federal Rule of Civil Procedure 15(d) provides that a party must obtain leave from the
court to supplement a pleading setting forth transactions or occurrences or events that have
happened since the date of the pleading sought to be supplemented. Rule 15(d) allows a party to
supplement the complaint in order to present subsequent material that is related to the claims
presented in the original complaint." LaBarbera, 971 F. Supp. 2d at 284 (citing Argus, Inc. v.
Eastman Kodak Co., 552 F. Supp. 589, 602 (S.D.N.Y. 1982); 3 Moore's Federal Practice ¶
15.16, at 15176 (2d ed. 1982)). Matters stated in a supplemental complaint should have some
relation to the claim set forth in the original pleading. See id. (citing 3 Moore's Federal Practice ¶
15.16, at 15183 (2d ed. 1989)). As with Rule 15(a), the decision to grant or deny a Rule 15(d)
motion is within the sound discretion of the district court. See id.
In the present matter, the Court finds that Plaintiff should not be permitted to supplement
and amend his amended complaint. Plaintiff commenced this action on January 17, 2012,
alleging violations that occurred exclusively at Shawangunk C.F. See Dkt. No. 1. Then, on June
28, 2012, the Court received Plaintiff's eighty-one (81) page amended complaint. See Dkt. No.
27. Thereafter, Plaintiff submitted several additional motions to amend and supplement his
complaint. In a Decision and Order dated February 13, 2013, this Court denied the motions on
several grounds. See Dkt. No. 98. First, the Court noted that the motions failed to comply with
Local Rule 7.1(a)(4) in that it was not a complete, cohesive pleading, but rather a piecemeal
compilation of prior submissions. See id. at 7-8. The Court found it to be an unreasonable task to
ask the Court and Defendants to attempt to interpret and respond to such a pleading. See id.
Additionally, the Court noted that the proposed amended pleading sought to add claims relating to
events that occurred at Upstate C.F. and were unrelated to the claims and Defendants in this
For many of the same reasons discussed in its February 13, 2013 Decision and Order, the
Court finds Plaintiff's motion to amend and supplement his amended complaint must be denied.
First, the proposed supplemental amended complaint is not a complete submission. In fact, in a
letter dated January 11, 2015, Plaintiff indicates that he "merely submitted the 'supplemental'
amended complaint as to be attached" to the amended complaint and admits that he "did not
submit the 'supplemental amended complaint' to supercede the . . . amended complaint; but, to be
an added attachment to the . . . amended complaint." Dkt. No. 168 at 2-3 (emphasis in original).
Additionally, permitting supplementation and amendment at this point, nearly three years
after Plaintiff commenced this action would be unduly prejudicial and would cause undue delay
in the resolution of this action. See Lopez v. Smiley, 375 F. Supp. 2d 19, 30 (D. Conn. 2005).
Finally, permitting amendment Plaintiff to amend and supplement to add claims and Defendants
entirely unrelated to the claims in this case would be inappropriate. See Klos v. Haskell, 835 F.
Supp. 710, 715-16 (W.D.N.Y. 1993), aff'd, 48 F.3d 81 (2d Cir. 1995) (denying motion to
supplement the complaint to include claims occurring at subsequent correctional facility).
"'[P]ersonal involvement of defendants in alleged constitutional deprivations is a
prerequisite to an award of damages under § 1983.'" Wright v. Smith, 21 F.3d 496, 501 (2d Cir.
1994) (quotation and other citations omitted). "'[W]hen monetary damages are sought under §
1983, the general doctrine of respondeat superior does not suffice and a showing of some
personal responsibility of the defendant is required.'" Id. (quoting Johnson v. Glick, 481 F.2d
1028, 1034 (2d Cir.)).
Courts have repeatedly found personal involvement is not established when a supervisory
official receives letters regarding a plaintiff's grievances and simply refers that grievance to other
personnel for investigation. See Vega v. Artus, 610 F. Supp. 2d 185, 199 (N.D.N.Y. 2009); see
also Sealy v. Giltner, 116 F.3d 47, 51 (2d Cir. 1997). Rather, personal involvement must be
established by either proving (1) the defendant directly participated in the alleged conduct; (2) the
defendant knew of the circumstances establishing the complaint and failed to remedy the
situation; (3) the defendant created a policy that allowed the unconstitutional practice; (4) the
defendant acted grossly negligent; or (5) the defendant demonstrated deliberate indifference to the
rights of the plaintiff by not acting on the plaintiff's complaints. See Colon v. Coughlin, 58 F.3d
865, 873 (2d Cir. 1995).
In his Report-Recommendation, Magistrate Judge Baxter found that Plaintiff has not
adequately alleged that Defendants Fischer, LeClaire, and Maly should be dismissed because
Plaintiff failed to adequately allege that they were personally involved in any constitutional
violations. See Dkt. No. 155 at 6-11. In his objections, Plaintiff simply repeats arguments that he
made in response to Defendants' motion to dismiss and which were properly rejected by
Magistrate Judge Baxter. See Harnett v. Barr, 538 F. Supp. 2d 511, 524 (N.D.N.Y. 2008); Burton
v. Lynch, 664 F. Supp. 2d 349, 360 (S.D.N.Y. 2009).
Having reviewed the Report-Recommendation and Plaintiff's submissions, the Court finds
that Magistrate Judge Baxter correctly determined that Plaintiff failed to allege facts plausibly
suggesting that Defendants Fischer, Maly and LeClaire were personally involved in the alleged
The amended complaint alleges that Defendants conspired to "discriminate, harass, and
retaliate" against Plaintiff by pursuing false disciplinary charges against him over a period of
more than one year. See Dkt. No. 27 at 8. Magistrate Judge Baxter agreed with Defendants that
this claim should be dismissed under the "intracorporate conspiracy doctrine." Dkt. No. 155 at
The intra-corporate conspiracy doctrine, which applies to conspiracy claims pursuant to
both 42 U.S.C. § 1983, see Dilworth v. Goldberg, No. 10 Civ. 2224, 2012 WL 4017789, *30
(S.D.N.Y. Sept. 13, 2012); Anemone v. Metropolitan Transportation Authority, 419 F. Supp. 2d
602, 603-04 (S.D.N.Y. 2006), and 42 U.S.C. § 1985, see Herrmann v. Moore, 576 F.2d 453, 459
(2d Cir. 1978), "posits that officers, agents, and employees of a single corporate or municipal
entity, each acting within the scope of his or her employment, are legally incapable of conspiring
with each other." Jefferson v. Rose, 869 F. Supp. 2d 312, 317-18 (E.D.N.Y. 2012) (quotations
and citations omitted); see also Smith v. Town of Hempstead Department of Sanitation Sanitary
District No. 2, 798 F. Supp. 2d 443, 461 (E.D.N.Y. 2011) (citation omitted). The intra-corporate
conspiracy doctrine "extends to public corporate bodies, including municipalities." Nimkoff v.
Dollhausen, 751 F. Supp. 2d 455, 466 (E.D.N.Y. 2011) (citation omitted); see also Michael v.
County of Nassau, No. 09-cv-5200, 2010 WL 3237143, *5 (E.D.N.Y. Aug. 11, 2010) (holding
that the intra-corporate conspiracy doctrine applies to municipalities).
Contrary to Plaintiff's conclusory objections, Magistrate Judge Baxter correctly
determined that the intra-corporate conspiracy doctrine mandates dismissal of Plaintiff's
conspiracy claims. The allegations in the amended complaint and Plaintiff's objections make
clear that all Defendants were employed by the same public entity and that they were working in
the scope of their public employment during the alleged unconstitutional conduct. See Richard v.
Fischer, ___ F. Supp. 2d ___, 2014 WL 3974158, *8-*9 (W.D.N.Y. 2014) (applying the
intracorporate conspiracy doctrine to bar the plaintiff's conspiracy claims brought against DOCCS
employees who were acting within the scope of their employment during the alleged
Having reviewed this claim and Magistrate Judge Baxter's Report-Recommendation, the
Court finds that Magistrate Judge Baxter correctly determined that Defendants' motion to dismiss
as to Plaintiff's conspiracy claims should be granted.
Preliminary injunctive relief
1. Governing Legal Standard
A party seeking injunctive relief must demonstrate 1) irreparable harm; and 2) either a) a
likelihood of success on the merits of the claims, or b) existence of serious questions going to the
merits of the claims, and a balance of hardships tipping decidedly in the moving party's favor.
See D.D. ex rel. V.D. v. N.Y. City Bd. of Educ., 465 F.3d 503, 510 (2d Cir. 2006) (quotation
omitted). "The purpose of issuing a preliminary injunction is to 'preserve the status quo and
prevent irreparable harm until the court has an opportunity to rule on the . . . merits."' Candelaria
v. Baker, No. 00-CV-012E, 2006 WL 618576, *3 (W.D.N.Y. Mar. 10, 2006) (quoting Devose v.
Herrington, 42 F.3d 470, 471 (8th Cir. 1994) (per curiam)).
A higher standard than ordinarily required must be met "where an injunction is mandatory
– that is, where its terms would alter, rather than preserve, the status quo by commanding some
positive act." Phillip v. Fairfield Univ., 118 F.3d 131, 133 (2d Cir. 1997) (citation omitted). To
meet such a higher standard, the moving party must "show 'clearly' that he or she is entitled to
relief or that 'extreme or very serious damage' will result from a denial of the injunction." Id. at
133 (other citations omitted). Additionally, "[i]n the prison context, a request for injunctive relief
must always be viewed with great caution so as not to immerse the federal judiciary in the
management of state prisons." Fisher v. Goord, 981 F. Supp. 140, 167 (W.D.N.Y. 1997) (citing
Farmer v. Brennan, 511 U.S. 825, 846-47, 114 S. Ct. 1970, 1983-84, 128 L. Ed. 2d 811 (1994))
(other citations omitted).
Finally, when a party seeks preliminary injunctive relief, "the relief . . . must relate to the
allegations contained in the underlying complaint." McAllister v. Goord, No. 9:06-CV-0442,
2009 WL 5216953, *2 (N.D.N.Y. Dec. 30, 2009) (internal citations omitted).
"'A showing of irreparable harm is the single most important prerequisite for the issuance
of a preliminary injunction.'" Bisnews AFE (Thailand) Ltd. v. Aspen Research Group Ltd., 437
Fed. Appx. 57, 58 (2d Cir. 2011) (quoting Faiveley Transport Malmo AB v. Wabtec Corp., 559
F.3d 110, 118 (2d Cir. 2009)). Speculative, remote or future injury is not the province of
injunctive relief. Los Angeles v. Lyons, 461 U.S. 95, 111-12 (1983). Rather, a plaintiff seeking to
satisfy the irreparable harm requirement must demonstrate that "'absent a preliminary injunction
[he or she] will suffer an injury that is neither remote nor speculative, but actual and imminent,
and one that cannot be remedied if a court waits until the end of trial to resolve the harm.'"
Bisnews AFE (Thailand), 437 Fed. Appx. at 58 (quoting Faiveley, 559 F.3d at 118).
In the first request, Plaintiff contends that "Defendants are refusing [to place him in
protective custody] so that [he] can get physically assaulted[,]" and that he "is in danger" and has
"been forced to live . . . where enemies are." Dkt. No. 161 at 3. However, these claims are
entirely speculative and relate to possible future injury, and therefore are not sufficient to show
Salvatierra v. Connolly, No. 09 Civ. 3722, 2010 WL 5480756, *24 (S.D.N.Y.
Sept. 1, 2010) ("Plaintiff's general fear of future retaliation by Defendants is too speculative to
warrant injunctive relief") (citation omitted), report and recommendation adopted by 2011 WL
9398 (S.D.N.Y. Jan. 3, 2011); Ward v. LeClaire, No. 9:07–CV–0026, 2007 WL 1532067, *2
(N.D.N.Y. May 24, 2007) ("Plaintiff's request for injunctive relief against future threats or
harassment by inmates and/or prison officials is too speculative to meet the irreparable harm
requirement. Although Plaintiff claims that he will face future threats and harassment, Plaintiff
cannot claim with any certainty how, when, or where he will be retaliated against, or that the
retaliation will result in irreparable harm to Plaintiff") (citation omitted).
In his second request, Plaintiff alleges "Defendants Keys, Sarkowicz, Korines, and coworking 'friends'" threatened his life and threatened to break his neck. Dkt. No. 163 at 2. There
The Court agrees with Defendants' response to Plaintiffs request that "Plaintiff's
allegations in all three motions are purely speculative[,]" and that his "issues . . . should be
addressed through administrative channels . . . ." Dkt. No. 166 at 2.
are no Defendants by the names of Sarkowicz and Korines in this lawsuit, and therefore this
Court has no power to enforce an injunction based on their conduct. Fed. R. Civ. P. 65(d). In
regard to Defendant Keys, "allegations of future injury without more do not establish a real threat
of injury." Slacks v. Gray, No. 9:07-CV-0510, 2008 WL 2522075, *1 (N.D.N.Y. June 25, 2008)
(citation omitted). Plaintiff has not alleged a real threat of injury, and any future threats should be
reported to prison staff, so as not to "immerse the federal judiciary in the management of state
prisons." Fischer, 981 F. Supp. at 167.
Plaintiff also seeks an order against "further retaliation resulting from this lawsuit." Dkt.
No. 163 at 1. Plaintiff's repeated requests for this type of relief are entirely conclusory and far too
speculative to meet the irreparable harm standard. See Ward v. LeClaire, No. 9:07-cv-26, 2007
WL 1532067, *2 (N.D.N.Y. May 24, 2007) ("Although Plaintiff claims that he will face future
threats and harassment, Plaintiff cannot claim with any certainty how, when, or where he will be
retaliated against, or that the retaliation will result in irreparable harm to Plaintiff").
In his third request for injunctive relief and sanctions, Plaintiff again asks the Court to
order Defendants to transfer him to a different facility because of Defendants' alleged conduct.
See Dkt. No. 164. Plaintiff alleges that, absent a transfer, he will suffer physical harm but claims
that he does not feel comfortable providing more detail because he fears that his letter will be
intercepted and not reach the Court. See id. at 2-3. Again, these conclusory assertions regarding
speculative future threats and injury are insufficient to establish irreparable harm. See Fischer,
981 F. Supp. at 167.3
Throughout the course of this litigation, Plaintiff has filed no less than eighteen (18)
separate applications seeking injunctive relief. See Dkt. Nos. 7, 54, 64, 67, 71, 80, 83, 95, 101,
112, 121, 122, 123, 132, 161, 163, 164, & 167. The vast majority of these applications discuss
the same conclusory allegations and speculation regarding threats to his physical safety.
Plaintiff requests additional sanctions and restates his request for a TRO based on the
alleged conduct of C.O. Stokes, who Plaintiff claims threw him out of his wheelchair, and then
proceeded to punch and slap him in the face. Dkt. Nos. 167 & 168. Plaintiff claims that "nearby
Defendants" witnessed C.O. Stokes engage in this conduct. See id. at 7. Again, any sought after
relief against C.O. stokes must fail because he is not a party to this action. Further, Plaintiff's
conclusory assertion that "nearby Defendants" witnessed this conduct is insufficient to warrant
the Court granting the requested relief for this alleged past harm.
Finally, the Court also finds that Plaintiff is not entitled to the requested relief because he
has made no showing that he is likely to succeed on the merits of his underlying claims.
Based on the foregoing, the Court denies Plaintiff's motions for preliminary injunctive
relief (Dkt. Nos. 161, 163, 164, 167 & 168).
Request for sanctions against Defendants
Included in his motions seeking injunctive relief, Plaintiff "request[s] that [Defendants]
are sanctioned $10,000.00 a day" for failing to place Plaintiff in protective custody. See, e.g.,
Dkt. No. 161 at 4. Plaintiff has not specified the legal basis for the motion for sanctions.
Sanctions may be imposed against a party to an action under Fed. R. Civ. P. 11 ("Rule
11") or 37 ("Rule 37"), 28 U.S.C. § 1927, or the Court's inherent power, none of which are
applicable here. In particular, Rule 11, by its terms, is the vehicle by which sanctions may be
obtained in connection with the filing in court of pleadings, motion papers, or other documents
Noticeably lacking from these applications, which span almost three years, is any indication that
Plaintiff has actually been subjected to any physical violence during his time at Shawangunk, that
in any way relates to this litigation.
that are baseless, filed in bad faith, or intended to harass, unnecessarily delay, or needlessly
increase the cost of litigation. See Fed. R. Civ. P. 11(b)-(c). Since Plaintiff does not seek
sanctions based on any pleadings, motion papers, or other documents filed by Defendants in this
action, Rule 11 provides no basis for the requested sanctions.
Sanctions against a party are also available under Rule 37(b) for failing to comply with a
court order or to respond to discovery. See Fed. R. Civ. P. 37(b). Again, this rule provides no
basis for the requested relief. Sanctions may also be ordered under 28 U.S.C. § 1927 against
"an[y] attorney or other party admitted to conduct cases in any court of the United States . . . who
so multiplies the proceedings in any case unreasonably and vexatiously[.]" Accordingly, by its
terms, section 1927 applies to attorneys and parties "admitted to conduct cases" in a federal court.
Since they are not attorneys, sanctions under section1927 are not available as against Defendants.
Finally, the Court finds that there is no basis to support invoking the Court's inherent
power to sanction Defendants based on the alleged conduct. Rather, a careful reading of
Plaintiff's requests for sanctions establishes that Plaintiff, rather than seeking true sanctions,
offers argument in support of what may become Plaintiff's damages should he ultimately succeed
in this action.
Based on the foregoing, Plaintiff's motions for sanctions are denied.
Plaintiff has appealed several orders issued by Magistrate Judge Baxter. See Dkt. Nos.
144, 149, 153 and 154. In his first appeal, Plaintiff argues that Magistrate Judge Baxter should
have sanctioned Defendants for failing to submit a responsive pleading by a certain date and that
a motion to dismiss is not a responsive pleading. See Dkt. No. 144 at 2-3. Contrary to Plaintiff's
assertions, the Rule 12(a)(4) of the Federal Rules of Civil Procedure, a motion to dismiss resets
the time for filing the defendant's responsive pleading as follows: "if the court denies the motion .
. . , the responsive pleading must be served within 14 days after notice of the court's action[.]"
Since the Court had not acted on Defendants' motion to dismiss until the filing of this
Memorandum-Decision and Order, Defendants were in compliance with Magistrate Judge
Baxter's order. Moreover, Magistrate Judge Baxter was well within his authority to rescind his
previous order requiring Defendants to respond to Plaintiff's motion for sanctions and to sua
sponte deny that motion as frivolous, which it was.
Next, Plaintiff appeals Magistrate Judge Baxter's May 27, 2014 Decision and Order in
which he denied Plaintiff's fifth motion to amend the amended complaint. See Dkt. Nos. 147 &
149. Magistrate Judge Baxter properly denied that motion based on Plaintiff's failure to attached
a proposed amended pleading or to include any factual support for the claims and defendants
Plaintiff was seeking to add. See N.D.N.Y. L.R. 7.1(a)(4).
In a submission dated August 9, 2014, Plaintiff appeals Magistrate Judge Baxter's Text
Order denying his motion to preserve and compel Defendants to turn over a video tape of an
incident unrelated to the facts of this case. See Dkt. Nos. 152 & 153. As Magistrate Judge Baxter
correctly determined, the video in question is entirely unrelated to the present matter as it
allegedly captures the actions of a non-defendant on June 26, 2014, long after this action was
filed. Moreover, the video tape in question allegedly depicts the actions of a corrections officer at
Five Points C.F., while the conduct relevant to this case allegedly occurred at Shawangunk C.F.4
Plaintiff claims that he is seeking this video because he is concerned that Defendants and
other corrections officers are tampering with his mail and that it is not reaching the Court. See
Dkt. No. 151 at 1-2. One need only glance at the docket in this matter and in the numerous other
cases Plaintiff has commenced to know that the vast majority, if not all of Plaintiff's submissions
Finally, in a letter dated October 1, 2014, Plaintiff again asks the Court to sanction
Defendants for their failure to file a responsive pleading. See Dkt. No. 154. For the reasons
discussed above, Plaintiff's appeal is denied as frivolous.
Based on the foregoing, the Court denies Plaintiff's appeals (Dkt. Nos. 144, 149, 153 and
After carefully reviewing the entire record in this matter, the parties' submissions,
Magistrate Judge Baxter's Report-Recommendation and the applicable law, the Court hereby
ORDERS that Magistrate Judge Baxter's November 17, 2014 Report-Recommendation is
Adopted in its entirety for the reasons set forth therein; and the Court further
ORDERS that Defendants' motion to dismiss (Dkt. No. 134) is GRANTED in part and
DENIED in part; and the Court further
ORDERS that Defendants' motion to dismiss is GRANTED as to Defendants Fischer,
Maly, and LeClaire, and as to Plaintiff's conspiracy claim; and the Court further
ORDERS that Defendants' motion to dismiss is otherwise DENIED; and the Court
ORDERS that Plaintiff's motions for injunctive relief and for sanctions (Dkt. Nos. 161,
163, 164 & 167) are DENIED; and the Court further
ORDERS that Plaintiff's appeals (Dkt. Nos. 144, 149, 153 & 154) are DENIED; and the
to the Court, have actually been mailed to the Court. Despite the fact that this case has not yet
progressed beyond the motion to dismiss stage, there are nearly 170 docket entries in this matter,
the vast majority of which are submissions by Plaintiff.
ORDERS that Plaintiff's motion to amend/supplement his amended complaint (Dkt. No.
158) is DENIED; and the Court further
ORDERS that all future pretrial matters are referred to Magistrate Judge Baxter; and the
ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision
and Order on all parties in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: January 29, 2015
Albany, New York
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