Johnson v. McKay et al

Filing 21

MEMORANDUM-DECISION AND ORDER: ORDERED that the Report-Recommendation (Dkt. No. 19 ) is APPROVED and ADOPTED in its entirety. ORDERED that defendants' motion to dismiss for failure to state a claim (Dkt. No. 2 ) is GRANTED. ORDER ED that plaintiff's claim for denial of evidence for and access to grievance procedures is DISMISSED with prejudice. ORDERED that plaintiff's claim for denial of access to the courts is DISMISSED without prejudice. ORDERED that withi n 30 days of the date of this Memorandum-Decision and Order, plaintiff may file an Amended Complaint limited to his claim for denial of access to the courts, to plausibly suggest that he suffered an actual injury. ORDERED that if plaintiff fails to file an Amended Complaint within 30 days of this Memorandum-Decision and Order, this action will be dismissed with prejudice. ORDERED that the Clerk of the Court shall serve on the parties a copy of this Memorandum-Decision and Order in accord ance with the Local Rules of the Northern District of New York. ORDERED that the Clerk of the Court shall provide plaintiff with copies of the unpublished decisions cited herein in accordance with the Second Circuit decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam). Signed by Judge Brenda K. Sannes on 4/16/15. {order served via regular mail on plaintiff}(nas)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________________________
JOHNATHAN JOHNSON,
Plaintiff,
v.
9:14-CV-0803 (BKS/TWD)
JEFF MCKAY, GAIL HAPONIK,
DR. CARL KOENIGSMANN,
JOSEPH BELLINIER, MAUREEN E. BOLL,
BRIAN FISCHER, DAVID ROCK,
THEODORE ZERNIAK, and
DONALD UHLER,
Defendants.
________________________________________________
Appearances:
Plaintiff Pro Se
Jonathan Johnson
89-A-1042
Upstate Correctional Facility
P.O. Box 2001
Malone, NY 12953
For Defendants:
Hon. Eric T. Schneiderman
Attorney General for the State of New York
by David J. Sleight, Esq.
Main Place Tower
350 Main Street, Suite 300A
Buffalo, NY 14202

Hon. Brenda K. Sannes, U. S. District Judge
MEMORANDUM-DECISION AND ORDER

1

I. Introduction
Plaintiff pro se Johnathon Johnson brings this action against defendants Jeff McKay, Gail
Haponik, Dr. Carl Koenigsmann, Joseph Bellinier, Maureen E. Boll, Brian Fischer, David Rock,
Theodore Zerniak, and Donald Uhler, asserting claims under 42 U.S.C. §1983 and New York
state law arising out of his incarceration at Upstate Correctional facility. (Dkt. No. 5). Plaintiff
alleges that defendants: (1) denied him access to the courts by depriving him of paper, mail,
outside communications, and access to the prison law library; and (2) denied him videotapes for
and access to inmate grievance procedures. (Dkt. No. 5). Plaintiff originally filed a verified
complaint in State of New York Supreme Court, Franklin County on April 16, 2013. (Dkt. No.
1-1). On July 2, 2014, defendants removed the action to this Court. (Dkt. No. 1). On July 7,
2014, defendants moved to dismiss the Complaint for failure to state a claim under Federal Rule
of Civil Procedure 12(b)(6). (Dkt. No. 2). Plaintiff filed an affirmation in opposition to
defendants’ motion, and sought to remand this action back to State Court. (Dkt. Nos. 6, 7). On
December 9, 2014, the Court denied plaintiff’s motion to remand. (Dkt. No. 9). 1
Upon referral pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.3(c), United States
Magistrate Judge Thérèse Wiley Dancks issued a Report-Recommendation and Order (“ReportRecommendation”), dated March 4, 2015, recommending that defendants’ motion to dismiss for
failure to state a claim be granted, and that plaintiff be granted leave to amend his claim
regarding access to the courts, but denied leave to amend his claim regarding access to the
grievance program. (Dkt. No. 19, pp. 10-11). Magistrate Judge Dancks found that plaintiff was
not denied access to the courts because he filed myriad federal lawsuits during the time period in
1

On February 4, 2015, this case was reassigned to the undersigned for all further proceedings. (Dkt. No. 18).

2

which he alleges that he was deprived of paper, mail, outside communications, and access to the
prison law library, and therefore, plaintiff failed to plead an actual injury. (Id., p. 9). With
respect to plaintiff’s claim that he was denied evidence for and access to grievance procedures,
Magistrate Judge Dancks found that plaintiff failed to state a claim because prison inmates have
no protected constitutional interest in grievance proceedings. (Id., p. 10).
Plaintiff has filed several objections to the Report-Recommendation. (Dkt. No. 20).
First, plaintiff objects to the recommended dismissal of his denial of access to the courts claim
on the grounds that the Court improperly took judicial notice of other lawsuits plaintiff has
brought without giving him the opportunity to be heard. (Id., pp. 7-10). Plaintiff further argues
that the Court improperly “resolve[d] [a] factual dispute” regarding his access to the courts, and
“did not treat the defendants’ motion to dismiss as a motion for summary judgment.” (Id., p. 6).
Plaintiff also argues that the public records considered by the Court did not include his cases
dismissed for failure to prosecute. (Id., p. 12).
Second, plaintiff objects to the recommended dismissal of his claim for denial of access
to grievance procedures on the grounds that “Plaintiff’s involvement in filing claims against
prison officials, and helping others do so, was protected activity as it was an exercise of his right
to petition the government for redress of grievances under the First Amendment.” (Dkt. No. 20,
p. 14). Third, plaintiff objects that the Report-Recommendation “failed to address Johnson’s
supplemental [state law] claims.” (Id., p. 16). Plaintiff argues that access to grievance
procedures is protected under New York state law, and therefore, his claims “would be properly
adjudicated by this court.” (Id.).
Defendants have not responded to plaintiff’s objections. For the reasons set forth below,
3

the Report-Recommendation is adopted in its entirety.
II. Standard of Review
This Court reviews de novo those portions of the Magistrate Judge’s findings and
recommendations that have been specifically objected to by plaintiff. Petersen v. Astrue, 2 F.
Supp. 3d 223, 228-29 (N.D.N.Y. 2012); Fed. R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1)(C). To be
specific, the objection must, with particularity, “identify the portions of the proposed findings,
recommendations, or report to which it has an objection and the basis for the objection.”
N.D.N.Y. L.R. 72.1(c). Under de novo review, the Court must “examine the entire record, and
make an independent assessment of the magistrate judge’s factual and legal conclusions.”
Almonte v. N.Y. State Div. of Parole, No. 04 Civ. 484, 2006 U.S. Dist. LEXIS 2926, at *15, 2006
WL 149049, at *5 (N.D.N.Y Jan. 18, 2006) (citing United States v. Raddatz, 447 U.S. 667, 675
(1980)). Findings and recommendations that are not objected to are reviewed for clear error.
Petersen, 2 F. Supp. 3d at 229; see also Fed. R. Civ. P. 72(b), Advisory Committee Notes: 1983
Addition. Where only vague or general objections are made, or a party resubmits the same
papers and arguments that have already been considered by the magistrate judge, the findings
and recommendations are also reviewed for clear error. Petersen, 2 F. Supp. 3d at 228-229.
After review, the Court “may accept, reject, or modify the recommended disposition; receive
further evidence; or return the matter to the magistrate judge with instructions.” Fed. R. Civ. P.
72(b)(3); 28 U.S.C. § 636(b)(1)(C).
A complaint shall be dismissed on defendant’s motion when it fails to “state a claim upon
which relief can be granted.” Fed. R. Civ. P. 12(b)(6). In order to state a claim upon which
relief can be granted, a complaint must contain, inter alia, “a short and plain statement of the
4

claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The complaint
“must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)) (emphasis added). “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.” Id. at 678. “Determining whether a complaint
states a plausible claim for relief . . . requires the . . . court to draw on its judicial experience and
common sense . . . . [W]here the well-pleaded facts do not permit the court to infer more than the
mere possibility of misconduct, the complaint has alleged–but it has not shown–that the pleader
is entitled to relief.” Id. at 679 (internal citation and punctuation omitted). Accordingly,
“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Id. at 678 (citing Twombly, 550 U.S. at 555).
“In reviewing a complaint for dismissal under Rule 12(b)(6), the court must accept the
material facts alleged in the complaint as true and construe all reasonable inferences in the
plaintiff’s favor.” Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994) (citation omitted).
Courts are “obligated to construe a pro se complaint liberally.” Harris v. Mills, 572 F.3d 66, 72
(2d Cir. 2009) (citation omitted). Thus a pro se 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.” Hughes v. Rowe, 449 U.S. 5, 10 (1980).
Although pro se complaints must be construed liberally, civil rights complaints “must contain
specific allegations of fact which indicate a deprivation of constitutional rights; allegations which

5

are nothing more than broad, simple, and conclusory statements are insufficient to state a claim
under § 1983.” Alfaro Motors, Inc. v. Ward, 814 F.2d 883, 887 (2d Cir. 1987).
III. Discussion
In view of plaintiff’s specific objections, this Court conducts a de novo review of the
portions of the Report-Recommendation regarding plaintiff’s claims for denial of access to the
courts and denial of evidence for and access to inmate grievance procedures.
A. Denial of Access to the Courts
Plaintiff alleges that defendants denied him access to the courts from 2007 to 2013 by
depriving him of paper, mail, outside communications, and access to the prison law library.
(Dkt. No. 5, pp. 2-3). “A prisoner has a constitutional right of access to the courts for the
purpose of presenting his claims, a right that prison officials cannot unreasonably obstruct and
that states have affirmative obligations to assure.” Washington v. James, 782 F.2d 1134, 1138
(2d Cir. 1986) (citing Bounds v. Smith, 430 U.S. 817, 821-23 (1977)). To state a claim for denial
of access to the courts under §1983, plaintiff must allege facts to plausibly suggest: “(1) a
‘nonfrivolous, arguable underlying claim’ that has been frustrated by the defendants’ actions, and
(2) a continued inability to obtain the relief sought by the underlying claim.” Arar v. Ashcroft,
585 F.3d 559, 592 (2d Cir. 2009) (quoting Christopher v. Harbury, 536 U.S. 403, 415 (2002)).
“[T]he right [of access to the courts] is ancillary to the underlying claim, without which a
plaintiff cannot have suffered injury by being shut out of court.” Harbury, 536 U.S. at 415. In
order words, plaintiff must demonstrate an “actual injury” by showing that his underlying claim
was non-frivolous. Lewis v. Casey, 518 U.S. 343, 351-353 (1996) (reasoning that the “actual
injury” requirement means that inmates must “demonstrate that a nonfrivolous legal claim ha[s]
6

been frustrated or was being impeded.”). “It follows that the underlying cause of action, whether
anticipated or lost, is an element that must be described in the complaint.” Harbury, 536 U.S. at
415. Ultimately, “the complaint should state the underlying claim in accordance with Federal
Rule of Civil Procedure 8(a), just as if it were being independently pursued.” Id. at 417.
Here, plaintiff has failed to state any facts to suggest what underlying claim or claims
were allegedly frustrated by defendants. Instead, plaintiff makes a blanket statement “that he
was denied access to the Courts, Federal and State, pending criminal and civil proceeding due to
the Paper Deprivation Order, from 2007, 2008, 2009, 2010, 2011, and from March-April 2013.”
(Dkt. No. 5, p. 2). Plaintiff also alleges that he was denied access to the prison law library,
postal mail, and outside communications during the same period. (Id., at 3). As for an injury,
plaintiff alleges only that “as a result of the Access to the Courts denial Plaintiff has lost all
appeals with the Third Department-Supreme Court of the State of New York…And the Supreme
Court of the State of New York-Albany County” during the same time period. (Id., at 4).
Thus, while the Complaint contains sufficient facts to plausibly suggest that defendants
frustrated his right to access the courts, plaintiff has failed to identify any underlying cause of
action. To state a claim for denial of access to the courts, plaintiff must plead the underlying
claim and facts to plausibly suggest that it is not frivolous. Plaintiff’s allegation that he sustained
an injury because he lost appeals in State Court is entirely conclusory because he failed to
describe the underlying claims. While a complaint must be construed in the light most favorable
to the plaintiff, the complaint must still contain “enough facts to state a claim to relief that is
plausible on its face.” Twombly, 550 U.S. at 570. The Court finds that plaintiff has failed to
state a plausible claim for denial of access to the courts because the Complaint alleges no facts to
7

suggest an actual injury.
Plaintiff argues that in recommending dismissal of his claim for denial of access to the
courts, Magistrate Judge Dancks improperly took judicial notice of his litigation history. (Dkt
No. 20, pp. 7-10). Under Federal Rule of Evidence 201, a court “may take judicial notice on its
own” of “a fact that is not subject to reasonable dispute because it: (1) is generally known within
the trial court’s territorial jurisdiction; or (2) can be accurately and readily determined from
sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b)-(c). Further, “it
is well established that courts may take judicial notice of publicly available documents on a
motion to dismiss.” In re DDAVP Indirect Purchaser Antitrust Litig., 903 F. Supp. 2d 198, 208
(S.D.N.Y. 2012); see also Blue Tree Hotels Inv. (Can.), Ltd. v. Starwood Hotels & Resorts
Worldwide, Inc., 369 F.3d 212, 217 (2d Cir. 2004) (courts can “look to public records...in
deciding a motion to dismiss.”). Thus, plaintiff’s prolific litigation history, 2 which is a matter of
public record, is a proper subject of judicial notice. Liberty Mutual Ins. Co. v. Rotches Pork
Packers, Inc., 969 F.2d 1384, 1388 (2d Cir. 1992) (“A court may take judicial notice of a
document filed in another court to establish the fact of such litigation and related filings, but not
for the truth of the matters asserted in the other litigation.”) (internal citation omitted).
Moreover, a court may consider matters that are subject to judicial notice, such as
plaintiff’s past lawsuits, without converting a motion to dismiss into one for summary judgment.

2

See, e.g., Johnson v. Adams, No. 10 Civ. 1082, 2012 U.S. Dist. LEXIS 104723, 2012 WL 3052957 (N.D.N.Y. July
5, 2012) (recounting plaintiff’s litigation history). An additional review of the Public Access to Court Electronic
Records database shows that, at a minimum, plaintiff filed federal cases in the Northern District of New York under
the following docket numbers from 2007 to 2013: 9:07-cv-00158-LEK-GHL, 9:07-cv-01018-DNH-DRH, 9:07-cv01237-TJM-DEP, 9:08-cv-00196-DNH, 9:09-cv-00244-DNH-GHL, 9:09-cv-01431-GTS, 9:10-cv-00247-DNHDRH, 9:10-cv-00342-GLS, 9:10-cv-00436-GLS-RFT, 9:10-cv-00860-FJ-RFT, 9:10-cv-00861-LEK-DEP, 9:10-cv01082-DNH-DEP, 9:11-cv-00386-GLS-CFH, 9:12-cv-00019-NAM-TWD, 9:12-cv-00091-MAD, 9:12-cv-00329GTS-DEP.

8

See Chambers v. Time Warner, Inc., 282 F.3d 147, 152-53 (2d Cir. 2002); Brass v. Am. Film
Techs., Inc., 987 F.2d 142, 150 (2d Cir. 1993); Xiotech Corp. v. Express Data Prods. Corp., ESI,
LLC, 11 F. Supp. 3d 225, 234 (N.D.N.Y. 2014). However, the Court has confined its review to
the Complaint in assessing plaintiff’s denial of access to the courts claim. As discussed above,
the Court finds, without reference to plaintiff’s litigation history, that the Complaint fails to state
a plausible claim for denial of access to the courts.
Accordingly, as recommended by Magistrate Judge Dancks, plaintiff is granted leave to
amend the Complaint to plead facts detailing the specific nonfrivolous claim or claims that
defendants are alleged to have frustrated. See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir.
2000) (A pro se complaint should not be dismissed “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.”) (internal citation omitted). Therefore, plaintiff’s objection to the ReportRecommendation regarding his claim for denial of access to the courts is without merit.
B. Denial of Evidence for and Access to Inmate Grievance Procedures
Plaintiff also objects to the recommended dismissal of his First Amendment claim for
denial of access to inmate grievance procedures. (Dkt. No. 20, p. 14). In support, plaintiff cites
numerous cases where inmates brought First Amendment claims related to issues with the
Inmate Grievance Program. (Id.). However, the cases on which plaintiff relies all involve First
Amendment retaliation claims. See Gayle v. Gonyea, 313 F.3d 677 (2d Cir. 2002); Graham v.
Henderson, 89 F.3d 75 (2d Cir. 1996); Scott v. Coughlin, 344 F.3d 282 (2d Cir. 2003); Morales
v. Mackalm, 278 F.3d 126 (2d Cir. 2002). Here, plaintiff alleges that he was denied the full
opportunity to file a grievance, not that he suffered retaliation for filing a grievance. Therefore,
9

in the absence of any facts suggesting a First Amendment retaliation claim, the cases cited by
plaintiff are inapplicable.
Plaintiff has a constitutional right to petition the government, through the courts, for the
redress of “grievances” in the general sense. See Bill Johnson’s Restaurants. Inc. v. NLRB, 461
U.S. 731, 741 (1983); Morello v. James, 810 F.2d 344, 347 (2d Cir. 1987). However, specific
“inmate grievance programs created by state law are not required by the Constitution, and
consequently allegations that prison officials violated those procedures [do] not give rise to a
cognizable [Section] 1983 claim.” Shell v. Brzezniak, 365 F. Supp. 2d 362, 369-70 (W.D.N.Y.
2005); see also Brown v. Graham, 470 F. App’x 11, 13 (2d Cir. 2012) (holding that a prisoner
litigant’s claim that he has a “federally-protected liberty interest in the state’s compliance with its
own prison grievance procedures is meritless.”); Alvarado v. Westchester Cnty., 22 F. Supp. 3d
208, 214 (S.D.N.Y. 2014); Mimms v. Carr, No. 09 Civ. 5740, 2011 U.S. Dist. LEXIS 61853, at
*30, 2011 WL 2360059, at *10 (E.D.N.Y. June 9, 2011) (“The First Amendment is not
implicated . . . where prison officials deny an inmate access to grievance procedures.”); Justice v.
Coughlin, 941 F. Supp. 1312, 1316 (N.D.N.Y. 1996) (“[M]ere violations of the grievance system
do not violate the Constitution.”). 3
Thus, even assuming that defendants denied plaintiff evidence for or access to inmate
grievance procedures at Upstate Correctional Facility, such facts simply do not implicate the
First Amendment or give rise to a constitutional claim. Accordingly, plaintiff’s objection to the
3

In at least two other cases, plaintiff has made precisely the same grievance denial claim, and courts have rejected it
for the same reason. See Johnson v. Gonzalez, No. 14 Civ. 745, 2015 U.S. Dist. LEXIS 31516, at *8-9, 2015 WL
1179384, at *5 (N.D.N.Y. Feb. 20, 2015) (“[B]ecause the IGPs are created under state law, and, thus, not required
by the Constitution, allegations against prison officials for violation of, or interference with, those procedures cannot
give rise to a cognizable claim under § 1983.”); Johnson v. Barney, No. 04 Civ. 10204, 2006 U.S. Dist. LEXIS
90398, at *7, 2006 WL 3714442, at *2 (S.D.N.Y. Dec. 13, 2006) (“[I]nmate grievance procedures are not even
constitutionally required.”).

10

Report-Recommendation regarding his claim for denial of evidence for and access to inmate
grievance procedures is without merit.
C. State Law Claims
Finally, plaintiff argues that his Complaint should not be dismissed because, even if his
§1983 claims are dismissed, he has also alleged claims under New York state law. (Dkt. No. 20,
pp. 15-18). Liberally construing the Complaint, plaintiff has alleged violations of Article 1,
Sections 5 and 6 of the New York State Constitution parallel to his federal claims for denial of
access to the courts and denial of evidence for and access to grievance procedures. (Dkt. No. 5,
p. 5). However, in light of the dismissal of plaintiff’s federal claims, and given the early stage of
the case, the Court declines to exercise supplemental jurisdiction over plaintiff’s state law claims
at this juncture. See 28 U.S.C. § 1367(c)(3); Valencia v. Sung M. Lee, 316 F.3d 299, 306 (2d
Cir. 2003). In the event plaintiff amends the Complaint to state a valid claim for denial of access
to the courts, the Court will exercise jurisdiction over his state law claims.
In conclusion, after carefully reviewing all of the papers in this action, including
Magistrate Judge Dancks’s Report-Recommendation, and Plaintiff’s Objections thereto, the
Court concludes that the Report-Recommendation is correct in all respects.
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that the Report-Recommendation (Dkt. No. 19) is APPROVED and
ADOPTED in its entirety; and it is further
ORDERED that defendants’ motion to dismiss for failure to state a claim (Dkt. No. 2) is
GRANTED, and it is further
ORDERED that plaintiff’s claim for denial of evidence for and access to grievance
11

procedures is DISMISSED with prejudice; and it is further
ORDERED that plaintiff’s claim for denial of access to the courts is DISMISSED
without prejudice; and it is further
ORDERED that within 30 days of the date of this Memorandum-Decision and Order,
plaintiff may file an Amended Complaint limited to his claim for denial of access to the courts,
to plausibly suggest that he suffered an actual injury; and it is further
ORDERED that if plaintiff fails to file an Amended Complaint within 30 days of this
Memorandum-Decision and Order, this action will be dismissed with prejudice; and it is further;
ORDERED that the Clerk of the Court shall serve on the parties a copy of this
Memorandum-Decision and Order in accordance with the Local Rules of the Northern District of
New York; and it is further
ORDERED that the Clerk of the Court shall provide plaintiff with copies of the
unpublished decisions cited herein in accordance with the Second Circuit decision in Lebron v.
Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
IT IS SO ORDERED.

Dated: April 16, 2015
Syracuse, New York

12

Page 1
Not Reported in F.Supp.2d, 2006 WL 149049 (N.D.N.Y.)
(Cite as: 2006 WL 149049 (N.D.N.Y.))

Only the Westlaw citation is currently available.
United States District Court,
N.D. New York.
Rafael ALMONTE, Petitioner,
v.
NEW YORK STATE DIVISION OF PAROLE, Respondent.
No. Civ. 904CV484GLS.
Jan. 18, 2006.
Rafael Almonte, No. 00-A-2216, Clinton Correctional Facility, Dannemora, New York, Plaintiff,
pro se.
Hon. Eliot Spitzer, Attorney General State of New
York, Department of Law, The Capitol, Albany,
New York, for the Respondent.
Steven H. Schwartz, Asst. Attorney General, of
counsel.
Memorandum-Decision and Order
SHARPE, J.
I. Introduction
*1 Rafael Almonte challenges a New York
State Parole Board decision denying him parole.
See Pro Se, 28 U.S.C. § 2241 Habeas Corpus Pet.
(“Petition); Dkt. No 1. The petition was referred to
Magistrate Judge David R. Homer, see 28 U.S.C. §
636(b) and L.R. 72.4, who recommended that it be
denied. See Dkt. No. 10. Almonte filed a limited objection challenging only Judge Homer's conclusion
that the Parole Board's decision was not arbitrary
FN1
and capricious.
Having considered Almonte's
objection, having reviewed Judge Homer's arbitrary
and capricious conclusion de novo and the remainder of his report for clear error, the court adopts the Report-Recommendation in its entirety for
the reasons stated by Judge Homer. Additionally,
Almonte has procedurally defaulted, thus forfeiting
his right to judicial review of all findings and con-

clusions except whether the Parole Board's decision
was arbitrary and capricious.
FN1. This matter was referred to the undersigned for report and recommendation
pursuant to 28 U.S.C. § 636(b) and
N.D.N.Y.L.R. 72.4.
II. Background
Following Almonte's 1989 conviction for drug
possession, the Bronx Supreme Court sentenced
him to an indeterminate term of six years to life imprisonment. After he was released to life-time parole in 1994, Almonte was arrested in 1996 for a
conspiracy to commit robbery and to shoot a police
officer. In 2000, he pled guilty to conspiracy and
was sentenced to an indeterminate term of two to
four years imprisonment. Because his 2000 conviction violated the terms of his earlier parole, his release was revoked and he was required to complete
the remainder of his 1989 six years to life sentence.
When Almonte subsequently appeared before
the Parole Board in July 2000, his release application was denied, and he was ordered held for two
years before he could reapply. Almonte appealed.
On March 29, 2001, the denial was vacated because
the Division of Parole could not locate the minutes
of Almonte's earlier appearance. On April 10, 2001,
he reappeared before the Parole Board for a de novo
hearing, parole was again denied, and the two year
preclusion was re-instituted, effective from the date
of his first appearance. That decision was affirmed
on May 15, 2002. Twice more in 2002 and 2004,
Almonte sought parole release and was denied.
Almonte's petition claims: (1) the Parole
Board's 2001 decision violated New York's Executive Law and Code of Rules and Regulations; (2) the
two year preclusion forbidding a renewed application was excessive; and (3) the Parole Board's failure to make a timely decision and its reliance on
impermissible information violated his substantive
and procedural due process rights.

© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 2
Not Reported in F.Supp.2d, 2006 WL 149049 (N.D.N.Y.)
(Cite as: 2006 WL 149049 (N.D.N.Y.))

In response, the Attorney General asserted that
Almonte's claims should be denied because: (1)
they are not cognizable on habeas review because
there is no constitutional or statutory right to parole
release; (2) they are moot since Almonte had two
parole hearings which post-dated the 2001 hearing
under attack; and (3) they are procedurally defaulted because the last state court considering the
claims denied them on the basis of a state procedural bar, and Almonte failed to demonstrate either
cause and prejudice or actual innocence.
*2 Judge Homer's report carefully analyzed
each of Almonte's claims. Judge Homer found that
New York's parole scheme does not create a constitutionally protected liberty interest, and that Almonte's challenge was therefore limited to whether
the Parole Board's decision was arbitrary and capricious. He then analyzed the relevant New York
statutes, and articulated the reasons why the parole
decision was not arbitrary and capricious and why
Almonte was afforded the process due. Judge
Homer declined to reach the merits of the Attorney
General's mootness argument, and resolved the issue of procedural default in Almonte's favor.
In the report's concluding paragraph, Judge
Homer recited the standard warning that accompanies all reports issued in this district; namely:
Pursuant to 28 U.S.C. § 636(b)(1), the parties
may lodge written objections to the foregoing report. Such objections shall be filed with the Clerk
of Court. FAILURE TO OBJECT TO THIS REPORT WITHIN TEN DAYS WILL PRECLUDE
APPELLATE REVIEW. Roldan v. Racette, 984
F.2d 85, 89 (2d Cir.1983); Small v. Secretary of
HHS, 892 F.2d 15 (2d Cir.1989); 28 U.S.C. §
636(b)(1); FED. R. CIV. P. 72, 6(a), 6(e).
(emphasis in the original)
Almonte subsequently filed timely, but limited
FN2
objections.
See Dkt. No. 11 (“Almonte Objections”). He generally objected to Judge Homer's
findings and conclusions, id. at ¶ 1, and supported
his general objection by referencing the arguments

in his original petition. Id. at ¶ 2. However, his only
specific, written objection related to Judge Homer's
conclusion that the Parole Board had not acted arbitrarily and capriciously. Id. at ¶¶ 3-5. Therefore,
he procedurally defaulted and is not entitled to judicial review of Judge Homer's other conclusions.
FN2. Each of the denials barred Almonte
from re-applying for parole for twenty-four
months.
III. Discussion
A. Legal Principles
By statute and rule, district courts are authorized to refer habeas corpus petitions to Magistrate
Judges for proposed findings and recommendations
regarding disposition. See 28 U.S.C. § 636(b)(1)(A)
& (B); Rules 8 & 10 of the Rules Governing § 2254
Petitions in the United States District Courts, foll.
28 U.S.C. § 2254. By local rule, the Northern District does so automatically, randomly referring all
pro se state habeas corpus petitions to Magistrate
Judges. See L.R. 40.1, 72.3(c), 72.4(a); General Order # 12, § D(1)(G).
When a report and recommendation is filed, the
parties must comply with specified procedures if
they seek statutorily mandated district court review.
See 28 U.S.C. § 636(b)(1)(C); FED. R. CIV. P.
72(b); Rule 8 of the Rules Governing § 2254 Petitions in the United States District Courts, foll. 28
U.S.C. §§ 2254; L.R. 72.1(c). Thus, they have ten
(10) days from receipt of the report to file specific,
written objections to proposed findings and recommendations, and ten (10) days from the receipt of
adversary objections to file responses. Id. Although
the statute and federal rules are clear, the local rules
are clearer yet that parties must file written objections that specify the findings and recommendations to which they object, and the basis for their
objections. Cf. 28 U.S.C. § 636(b)(1)(C); FED. R.
CIV. P. 72(b); Rule 8 of the Rules Governing §
2254 Petitions in the United States District Courts,
foll. 28 U.S.C. §§ 2254 with L.R. 72 .1(c). The loc-

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al rule is by no means inconsistent with the statute
or federal rules, and is therefore legally enforceable. See Whitfield v. Scully, 241 F.3d 264, 270 (2d
Cir.2001); see also FED. R. CIV. P. 83(a)(b).
*3 The district court must review de novo those
portions of the Magistrate Judge's findings and recommendations that have been properly preserved
by compliance with the specificity requirement. See
28 U.S.C. § 636(b)(1)(C); FED. R. CIV. P. 72(b);
Rule 8 of the Rules Governing § 2254 Petitions in
the United States District Courts, foll. 28 U.S.C. §§
2254; L.R. 72.1(c). After review, the district court
“may accept, reject, or modify, in whole or in part,
the findings or recommendations made by the magistrate judge ... [and] may also receive further
evidence or recommit the matter to the magistrate
judge with instructions.” 28 U.S.C. § 636(b)(1)(C);
FED. R. CIV. P. 72(b); Rule 8 of the Rules Governing § 2254 Petitions in the United States District
Courts, foll. 28 U.S.C. §§ 2254.
If a party fails to object, or timely or specifically object, it procedurally defaults, and it is entitled to no judicial review whatsoever. See Thomas
v. Arn, 474 U.S. 140, 149 & n. 7, 150, 152, 106
S.Ct. 466, 88 L.Ed.2d 435 (1985); Cephas v. Nash,
328 F.3d 98, 107 (2d Cir.2003); Mario v. P & C
Food Markets, Inc., 313 F.3d 758, 766 (2d
Cir.2002); Spence v. Superintendent, Great Meadow Correctional Facility, 219 F.3d 162, 174 (2d
Cir.2000); DeLeon v. Strack, 234 F.3d 84, 86 (2d
Cir.2000); United States v. Male Juvenile, 121 F.3d
34, 38-39 (2d Cir.1997); Federal Deposit Insurance
Corporation v. Hillcrest Associates, 66 F.3d 566,
569 (2d Cir.1995); IUE AFL-CIO Pension Fund v.
Herrman, 9 F.3d 1049, 1054 (2d Cir.1993); Roldan
v. Racette, 984 F.2d 85, 89 (2d Cir.1993); Frank v.
Johnson, 968 F.2d 298, 300 (2d Cir.1992); Wesolek
v. Canadair Limited, 838 F.2d 55, 58 (2d Cir.1988);
Abehouse v. Ultragraphics, Inc., 754 F.2d 467, 473
(2d Cir.1985); McCarthy v. Manson, 714 F.2d 234,
237 & n. 2 (2d Cir.1983); see also FED. R. CIV. P.
72(b) advisory committee note (1983). Although
the doctrine of procedural default developed as a

Circuit appellate rule, it applies in the district
courts as long as parties, including those appearing
pro se, receive clear notice of the consequences of
their failure to properly object. DeLeon v. Strack,
234 F.3d at 86 (citing Male Juvenile, 121 F.3d at
38-39); see also Thomas v. Arn, 474 U.S. at 149 &
n. 7 (statute does not preclude procedural default
analysis at the district court level). As to pro se
parties, the notice requirement is satisfied if the report at least states that the failure to object will preclude appellate review, and cites 28 U.S.C. §
636(b)(1) and Rules 72, 6(a) and 6(e) of the Federal
Rules of Civil Procedure. Roldan v. Racette, 984
F.2d at 89; Frank v. Johnson, 969 F.2d at 300. In
this district, reports routinely recite the requisite
warning, as did Judge Homer's in this case.
The doctrine of procedural default naturally
flows from the Congressional expectation that
highly credentialed men and women would fill the
Magistrate Judge positions after the passage of the
Federal Magistrates Act. See Thomas v. Arn, 474
U.S. at 148 & 152; see also 28 U.S.C. § 631 (merit
selection process). Thus, the Act was designed to
provide district courts with additional assistance,
and any requirement mandating district court review of Magistrate Judges' reports absent objections “would be an inefficient use of judicial resources.” Id. at 148.
*4 Although the failure to object or timely object constitutes procedural default, other factual
predicates give rise to default as well. Thus, a party
that limits its specific objections to a part of a report's findings or recommendations procedurally
defaults as to the remainder. See Cephas v. Nash,
328 F.3d at 107 (citing Mario v. P & C Food Markets, Inc., 313 F.3d at 766). Default occurs when
objections are not specific or written, Abehouse v.
Ultragraphics, Inc., 754 F.2d at 473, and a general
objection is not a specific objection. Goney v.
Clark, 749 F.2d 5, 6-7 (3d Cir.1984); Douglas v.
United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29
(5th Cir.1996); Neuman v. Rivers, 125 F.3d 315,
321-23 (6th Cir.1997); Lockert v. Faulkner, 843

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F.2d 1015, 1019 (7th Cir.1988); United States v.
One Parcel of Real Property, 73 F.3d 1057, 1060
(10th Cir.1996); Grosso v. Artuz, No. 97 Civ. 1623,
1998 WL 542312, at *2-3 (S.D.N.Y. Aug.25, 1998)
(citing Thomas v. Arn, 474 U.S. at 147-48). Resubmission of the same papers and arguments as submitted to the Magistrate Judge fails to comply with
the specificity requirement because the local rule
requires that objections address specific findings
and conclusions. See Arbor Hill Concerned Citizens
Neighborhood Ass'n v. County of Albany, 281
F.Supp.2d 436, 439 (N.D.N.Y.2003); Camardo v.
General Motors Hourly-Rate Employees Pension
Plan, 806 F.Supp. 380, 382 (W.D.N.Y.1992) (citing
Nettles v. Wainwright, 677 F.2d 404, 410 (former
5th Cir. 1882) (en banc ) (“[i]t is reasonable to
place upon the parties the duty to pinpoint those
portions of the magistrate's report that the district
court must specifically consider. The rule facilitates
the opportunity for district judges to spend more
time on matters actually contested and produces a
result compatible with the purposes of the Magistrates Act.”)); but see Cicio v. John Does 1-8, 321
F.3d 83, 90 n. 5 (2d Cir.2003). Furthermore, frivolous or conclusory objections fail to satisfy the specificity requirement. Nettles v. Wainwright, 677
F.2d at 410 n. 8; Arbor Hill, 281 F.Supp.2d at 439;
Camardo, 806 F.Supp. at 382; Brown v. Peters, No.
Civ. A. 95-CV-1641, 1997 WL 599355, at *2
(N.D.N.Y. Sept.22, 1997) (Pooler, DJ).
Because procedural default is non-jurisdictional, the district court retains discretion to
disregard it in the interests of justice. Cephas v.
Nash, 328 F.3d at 107 (citing Thomas v. Arn, 474
U.S. at 155). Such discretion is “based on, among
other factors, whether the defaulted argument has
substantial merit or, put otherwise, whether the magistrate judge committed plain error in ruling
against the defaulted party.” Spence, 219 F.3d at
174 (citing Theede v. United States Dep't of Labor,
172 F.3d 1262, 1268 (10th Cir.1999); Douglas, 79
F.3d at 1428). As the Supreme Court has observed:
[T]he district court ... must exercise supervi-

sion over the magistrate. Even ... [if a procedural
default rule permits a] ... district judge ... to refuse
to review a magistrate's report absent timely objection ... [t]he rule merely establishes a procedural
default that has no effect on the ... court's jurisdiction. The district judge has jurisdiction over the
case at all times. He retains full authority to decide
whether to refer a case to the magistrate, to review
the magistrate's report, and to enter judgment. Any
party that desires plenary consideration need only
ask. Moreover, while the statute does not require
the judge to review an issue de novo if no objections are filed, it does not preclude further review,
sua sponte or at the request of a party, under a de
novo or any other standard.
*5 Thomas v. Arn, 474 U.S. at 154.
As noted, if the parties properly object, the
court must conduct a de novo review, and may do
so regardless. De novo review requires that the
court “ ‘give fresh consideration to those issues to
which specific objections have been made.’ It will
examine the entire record, and make an independent
assessment of the magistrate judge's factual and
legal conclusions.” United States v. Raddatz, 447
U.S. 667, 675, 100 S.Ct. 2406, 65 L.Ed.2d 424
(1980) (citing H.R.Rep. No. 94-1609, 94th Cong.,
1st Sess. p. 3 (1976), U.S.Code Cong. & Admin.
News 1976, p. 6163); see also 12 Charles Alan
Wright et. al., Federal Practice and Procedure §
3070.2 (2d ed.1997). 28 U.S.C. § 636(b)(1) actually
employs the phrase “de novo determination” rather
than “de novo hearing,” thus permitting “whatever
reliance a district judge, in the exercise of sound judicial discretion, [chooses] to place on a magistrate's proposed findings and recommendations.”
Grassia v. Scully, 892 F.2d 16, 19 (2d Cir.1989)
(citing Raddatz, 447 U.S. at 676). When the district
court makes its de novo determination, the parties
have no right to present evidence not submitted to
the Magistrate Judge. Nonetheless, the court retains
the discretion to consider additional evidence although it should afford the parties notice. See
Hynes v. Squillace, 143 F.3d 653, 656 (2d

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Cir.1998) (citing Paddington Partners v. Bouchard,
34 F.3d 1132, 1137-38 (2d Cir.1994); Pan American World Airways, Inc. v. International Bhd. of
Teamsters, 894 F.2d 36, 40 n. 3 (2d Cir.1990)).
The more complex question arises when a party
procedurally defaults, the court is neither statutorily
mandated to conduct de novo review nor does it
elect to do so, but it concludes that some review is
in order nonetheless. Under such circumstances,
what standard applies? In short, the court may elect
any standard it wishes.
28 U.S.C. § 636 and Rule 72(b) of the Federal
Rules of Civil Procedure are both silent on the review standard under such circumstances. However,
the Rule 72(b) Advisory Committee Note suggests
that the court will review for “clear error,” stating:
“When no timely objection is filed, the court
need only satisfy itself that there is no clear error
on the face of the record in order to accept the recommendation. See Campbell v. United States Dist.
Court, 501 F.2d 196, 206 (9th Cir.1974), cert.
denied, 419 U.S. 879, 95 S.Ct. 143, 42 L.Ed.2d
119, quoted in House Report No. 94-1609, 94th
Cong.2d Sess. (1976) at 3. Compare Park Motor
Mart, Inc. v. Ford Motor Co., 616 F.2d 603 (1st
Cir.1980).
See FED. R. CIV. P. 72(b) advisory committee's note (1983). Numerous decisions cite the 1983
Note as persuasively requiring “clear error” review,
but the value of that Note is undercut by dicta in the
Supreme Court's 1985 decision in Thomas v. Arn.
There, the Court stated: “[W]hile the statute does
not require the judge to review an issue de novo if
no objections are filed, it does not preclude further
review, sua sponte or at the request of a party, under a de novo or any other standard.” Arn, 474 U.S.
at 154.
*6 When reviewing reports despite procedural
default, district courts have applied standards with
varying names and definitions. Thus, some adopt
the “clearly erroneous” standard that is articulated

in the statute and federal rule governing review of a
Magistrate Judge's nondispositive orders, and referenced in the 1983 Advisory Committee Note. See
e.g. Martinez v. Senkowski, No. 6:97-CV-0624,
2000 WL 888031, at *3 (N.D.N.Y. June 28, 2000);
see also 28 U.S.C. § 636(b)(1)(A); FED. R. CIV. P.
72(a). Given the definition typically assigned to
“clearly erroneous,” the courts review a report to
determine whether the findings are against the clear
weight of the evidence, or whether the recommendations cause the court to definitely and firmly conclude that a mistake has been committed. See Concrete Pipe and Prods. of Cal., Inc. v. Constr.
Laborers Pension Trust for S. Cal., 508 U.S. 602,
622, 113 S.Ct. 2264, 124 L.Ed.2d 539 (1993)
(quoting United States v. United States Gypsum
Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746
(1948)). Other courts have adopted a “contrary to
law” standard which means that the report fails to
apply, or misapplies, relevant statutes, case law, or
rules of procedure. See e.g. Catskill Development,
L.L.C. v. Park Place Entertainment Corp., 206
F.R.D. 78, 86 (S.D.N.Y.2002); Tompkins v. R.J.
Reynolds Tobacco, Co., 92 F.Supp.2d 70, 74
(N.D.N.Y.2000). When excusing procedural default
in the interests of justice, the Circuit has reviewed
the underlying decision or report for “plain error.”
See Spence, 219 F.3d at 174 (citing Douglas, 79
F.3d at 1428 (5th Cir.1996) (citing United States v.
Olano, 507 U.S. 725, 736, 113 S.Ct. 1770, 123
L.Ed.2d 508 (1993)). Plain error is one that is clear
or obvious and affects substantial rights. Spence,
219 F.3d at 174.
Mindful that district courts retain jurisdictional
authority over all dispositive issues, this court
routinely reviews reports before entering final judgment whether objections are registered or not.
When the court does so, however, it is aware that
the reports are generated by Magistrate Judges with
extraordinary professional and judicial experience.
Accordingly, when required by statute or rule or
when the court's routine review so dictates, the
court will make a de novo determination of findings
and recommendations. Absent de novo review, the

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court will apply a “clearly erroneous” standard, and
defines that phrase as follows: a report is clearly erroneous if the court determines that there is a mistake of fact or law which is obvious and affects
substantial rights. Furthermore, the court will
routinely identify issues which have been procedurally defaulted, and articulate the standard of review
applied to all issues.
B. Judge Homer's Report and the Objections
In part, Judge Homer's report concludes: New
York's parole statute does not create a protected
liberty interest subject to the full panoply of due
process safeguards; the two year preclusion forbidding Almonte from submitting a renewed parole application was consistent with the mandates of New
York law, and therefore not excessive; Almonte's
petition is not moot; and Almonte has not procedurally defaulted. Almonte has now procedurally defaulted on the first two findings because his objections regarding them were either nonexistent or
non-specific. By failing to object whatsoever or file
a response to Almonte's objections, the respondent
has procedurally defaulted on the second two. Because these findings are not clearly erroneous, the
court adopts them in their entirety for the reasons
stated by Judge Homer.
*7 Judge Homer also concluded that the Parole
Board decision was not arbitrary and capricious,
and Almonte has specifically objected to that conclusion. The court has conducted a de novo review
of Judge Homer's conclusion, Almonte's objection,
and the underlying record.
As Judge Homer observed, the parole decision
was not arbitrary and capricious if the Parole Board
gave Almonte an opportunity to be heard and advised him of the reasons for denying parole. Almonte had three hearings, was heard during all
three, and received written denial decisions. In his
petition and in his objection, Almonte essentially
argues that the Parole Board saw fit to release him
after his first conviction, but refused to do so after
his second because it impermissibly considered
facts that were not part of his conspiracy convic-

tion. To the contrary, the Parole Board was authorized to consider whether Almonte would lead a
law-abiding life if released, whether his release was
compatible with society's welfare, and whether his
release would deprecate the seriousness of his
crime thereby undermining respect for the law. See
Dkt. No. 10, Homer Report at 5. In its decisions
denying parole, the Board repeatedly referenced Almonte's prior convictions for possession of a loaded
weapon, cocaine sales and conspiracy, but never referred to facts outside the record of those convictions. Furthermore, the Board specifically considered legitimate factors that arose after its original decision admitting Almonte to parole; namely, a
probation revocation, a new conviction while under
parole supervision, and the fact that his prior incarceration failed to deter him from continuing criminal behavior. Id. Having reviewed the underlying record de novo, there is no factual support for Almonte's bald conclusion that the Parole Board considered impermissible factors when reaching its decisions. Accordingly, Judge Homer's conclusion
that the Parole Board's decision was not arbitrary
and capricious is correct, and Almonte's petition is
denied.
IV. Conclusion
For the reasons stated, it is hereby
ORDERED, that the Report-Recommendation
of Magistrate Judge David R. Homer, filed on June
1, 2005 is ACCEPTED in its entirety for the reasons stated; and it is further
ORDERED, that this petition is DENIED in its
entirety; and it is further
ORDERED, that the Clerk of the Court enter
judgment in favor of defendant and close this case.
IT IS SO ORDERED.
REPORT-RECOMMENDATION AND ORDER
FN1
HOMER, Magistrate J.
Petitioner Rafael Almonte (“Almonte”) is cur-

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rently an inmate in the custody of the New York
State Department of Correctional Services (DOCS)
at Clinton Correctional Facility. Almonte pleaded
guilty to conspiracy in the fourth degree on April
20, 2000 in Bronx Supreme Court and was sentenced to an indeterminate term of two to four years
imprisonment. Due to a previous conviction, Almonte remains incarcerated serving a sentence of
life imprisonment. Almonte now seeks a writ of
habeas corpus pursuant to 28 U.S.C. § 2254 on the
grounds that the decision denying him parole was
arbitrary, capricious, and violated New York law,
that the time from the decision on reconsideration
was excessive, that the parole board denied his parole without justification, and that he was denied
substantive due process when his request for parole
was denied. For the reasons which follow, it is recommended that the petition be denied.
I. Background
On October 17, 1989, Almonte was convicted
of criminal possession of a controlled substance in
the second degree in Bronx Supreme Court and was
sentenced to an indeterminate term of six years to
life imprisonment. Resp't Answer (Docket No. 7),
Ex. 2 at 3. On December 9, 1994, Almonte was released under parole supervision for life. Id. On
December 19, 1996, Almonte was arrested for conspiracy to commit robbery and shoot a police officer. Id. at 5. On April 20, 2000, Almonte pleaded
guilty to fourth degree conspiracy in violation of
N.Y. Penal Law § 105.10 and was sentenced to a
indeterminate term of two to four years imprisonment. Id. at Ex. 1. As this conviction was a violation of parole, Almonte was required to complete
the remainder of his sentence for the 1989 conviction of six years to life imprisonment.
Almonte appeared before the parole board in
July 2000 and parole was denied. Resp't Answer at
Ex. 4. On March 29, 2001, Almonte's appeal was
granted because the Division of Parole was unable
to locate the transcribed minutes of Almonte's July
2000 appearance. Almonte was thus scheduled to
appear in April 2001 before the parole board. Id.

On April 10, 2001, Almonte re-appeared before
the parole board and parole was again denied.
Resp't Answer at Exs. 8, 11. On Almonte's appeal,
FN2
this decision was affirmed on May 15, 2002.
Id. at Ex. 13. On May 8, 2002, Almonte appeared
before the parole board and parole was again
denied. Id. at Ex. 12. Almonte's parole was again
denied on May 10, 2004. Almonte's appeal of this
decision was pending as of the date this petition
was filed. Id. at Exs. 15, 16.
Almonte challenged the April 2001 denial of
FN3
his parole in an Article 78 proceeding
which
was denied as moot due to Almonte's subsequent
appearance before the parole board. Id. at Ex. 18.
On March 7, 2003, Almonte filed a petition for a
writ of habeas corpus pursuant to N.Y. C.P.L.R. §
7001, which was denied. Id. at Ex. 19. Both of
these decisions were affirmed by the Appellate Division. Almonte v. New York State Div. of Parole, 2
A.D.3d 1239, 768 N.Y.S.2d 861 (3d Dep't 2003).
The New York Court of Appeals dismissed Almonte's appeal on March 25, 2004. Almonte v. New
York State Div. of Parole, 2 N.Y.3d 758 (2004)
This action followed.
II. Discussion
A. Parole Denial
Respondent first contends that Almonte's petition is not cognizable because Almonte does not
have a liberty interest in being released on parole.
The Supreme Court has held that since “there is
no constitutional or inherent right of a convicted
person to be conditionally released before the expiration of a valid sentence,” due process safeguards in parole hearings are only required if the
state's parole statute creates an expectation of
liberty. Greenholtz v. Inmates of Neb. Penal &
Correctional Complex, 442 U.S. 1, 7, 99 S.Ct.
2100, 60 L.Ed.2d 668 (1979), Barna v. Travis, 239
F.3d 169, 170 (2d Cir.2001). Furthermore, the mere
possibility of parole does not, by itself, create a
constitutionally protected liberty interest. Greenholtz, 442 U.S. at 11. The New York State parole
scheme does not create a protected liberty interest.

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Barna, 239 F.3d at 171.
Almonte's challenge is therefore limited to
whether he was denied parole for arbitrary or impermissible reasons. Meachum v. Fano, 427 U.S.
215, 226, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976);
Boddie v. New York State Div. of Parole, 288
F.Supp.2d 431, 440 (S.D.N.Y.2003). “[A]ll that the
Board must do is (a) afford the inmate an opportunity to be heard and (b) if parole is denied, advise
him [or her] of the reasons for its decision.” Blackett v. Thomas, 293 F.Supp.2d 317, 319
(S.D.N.Y.2003). A review of the parole board's determination here does not reveal a violation of due
process or state statute. Almonte had three parole
hearings in 2000, 2001, 2002, and 2004. Almonte
was given an opportunity to be heard and written
opinions providing the bases for the board's determinations at each. See Greenholtz, 442 U.S. at 16.
Almonte contends that he should have been released on parole because he received an eligibility
certificate and had served the minimum period of
imprisonment. New York's parole statute vests
broad discretion in the parole board when determining an inmate's release. N.Y. Exec. Law §
259-i(2)(c) (McKinney 2001). An inmate's institutional record must be considered by the board, but
the board must also consider “if there is a reasonable probability that, if such inmate is released, he
[or she] will live and remain at liberty without violating the law, and that his [or her] release is not incompatible with the welfare of society and will not
so deprecate the seriousness of his [or her] crime as
to undermine respect for law.” N.Y. Exec. Law §
259-i(2)(c)(A). The “seriousness of [the inmate's]
crime” is relevant both to the likelihood that the inmate will not be a danger to the community and to
the independent requirement that early release not
“deprecate the seriousness of his crime so as to undermine respect for law.” Here, each time parole
was denied, the parole board considered Almonte's
previous convictions for possession of a loaded
weapon and possession and sale of cocaine, that his
probation was previously revoked, that he was un-

der parole supervision at the time of the instant offense, and that prior incarcerations failed to deter
him from continuing criminal behavior. Resp't Answer at Exs. 9, 12, 15. The factors considered here
comply with New York law.
In ground two, Almonte contends that the
twenty-four month wait for reconsideration was excessive. However, this is the period allowable by
state law. N.Y. Exec. Law § 259 i(2)(a). In grounds
three and four, Almonte also contends that the
board considered charges that were dismissed when
he pleaded guilty. The decision of the parole board
in denying parole does not refer to the crimes that
were dismissed and only refers to the conspiracy
charge. Almonte has presented no evidence that the
parole board's decision was based on factors other
than those permitted by New York's statutory
framework.
Therefore, the petition should be denied on its
merits.
B. Mootness
Respondent also argues in the alternative that
Almonte's claim regarding the 2001 denial of parole
is moot in light of his reappearance before the parole board in 2002 and 2004. Almonte argues that
the state court's review of the denial of parole is futile because he would be eligible for a new parole
hearing before the state court's appeal is complete.
Traverse (Docket No. 8) at 6.
There exists support for the proposition that a
subsequent parole hearing renders moot a challenge
to a prior hearing. Rodriguez v. Greenfield, No. 99
Civ 0532 (TPJ), 2002 WL 48440, at *4 (S.DN.Y.
Jan. 10, 2002). However, other case law suggests
that the issue in fact may not be moot and Almonte's argument that the state remedies are futile
has been characterized as “potentially powerful.”
Boddie, 285 F.Supp.2d at 427-28; Defino v.
Thomas, No. 02 Civ. 7413(RWS), 2003 WL 40502,
at *3 (S.D.N.Y. Jan.2, 2003). However, this question need not be reached as Almonte articulates no
due process violation. “Since [the] petition can eas-

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ily be rejected on the merits, requiring submission
of that petition to the state courts, with the likelihood that the same arguments will eventually be
presented here in any event, would be a waste of
the resources of both the state and federal courts.”
Brown v. Thomas, NO. 02 Civ 9257, 2003 WL
941940, at *1 (S.D.N.Y. Mar.10, 2003). Accordingly, it is recommended that respondent's argument on this ground not be addressed.
C. Independent and Adequate State Ground
Finally, respondent contends that Almonte has
procedurally defaulted on all claims raised in his
petition.
A federal habeas court is precluded from reviewing a “question of federal law decided by a
state court if the decision of that court rests on a
state law ground that is independent of the federal
question and adequate to support the judgment.”
Coleman v. Thompson, 501 U.S. 722, 729, 111
S.Ct. 2546, 115 L.Ed.2d 640 (1991); Jones v. Stinson, 229 F.3d 112, 117 (2d Cir.2000). This occurs
when the last state court rendering a judgment in
the case clearly and expressly held that its judgment
rested on a state procedural bar. Harris v. Reed, 489
U.S. 255, 262, 109 S.Ct. 1038, 103 L.Ed.2d 308
(1989); Jones, 229 F.3d at 118. In order for federal
habeas review to be procedurally barred, a state
court must actually have relied on a procedural bar
as an independent basis and the state court's reliance on state law must be unambiguous and clear
from the face of the opinion. Fama v. Comm'r of
Corr. Servs., 235 F.3d 804, 809 (2d Cir.2000);
Galarza v. Keane, 252 F.3d 630, 637 (2d Cir.2001).
We apply a presumption against finding a state procedural bar and “ask not what we think the state
court actually might have intended but whether the
state court plainly stated its intention.” Jones, 229
F.3d at 118.
The Appellate Division affirmed the county
court's decision denying Almonte's Article 78 proceeding regarding the 2001 parole denial as moot
and denying his state habeas petition. The Appellate Division did not plainly state that its judgment

was procedural and the cases cited did not indicate
that dismissal for mootness was a state procedural
ground. There is no indication from the decision
that the Appellate Division's decision was based on
an independent and adequate state ground. Therefore, the Appellate Division did not clearly and expressly state that their decision rested on procedural
grounds.
Accordingly, respondent's argument on this
ground should be rejected.
III. Conclusion
For the reasons stated above, it is hereby
RECOMMENDED that the petition for a writ
of habeas corpus be DENIED.
Pursuant to 28 U.S.C. § 636(b)(1), the parties
may lodge written objections to the foregoing report. Such objections shall be filed with the Clerk
of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN TEN DAYS WILL PRECLUDE
APPELLATE REVIEW. Roldan v. Racette, 984
F.2d 85, 89 (2d Cir.1993); Small v. Secretary of
HHS. 892 F.2d 15 (2d Cir.1989); 28 U.S.C. §
636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).
June 1, 2005.
FN3. N.Y. C.P.L.R. art. 78 (McKinney
1994 & Supp.2005) establishes the procedure for judicial review of the actions and
inactions of state and local government
agencies and officials.
FN1. The Clerk is directed to append
Judge Homer's report and recommendation
to this decision, and familiarity is presumed.
FN2. The Attorney General did not object
or respond to Almonte's objections.

N.D.N.Y.,2006.

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Almonte v. New York State Div. of Parole
Not Reported in F.Supp.2d, 2006 WL 149049
(N.D.N.Y.)
END OF DOCUMENT

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Only the Westlaw citation is currently available.
United States District Court,
E.D. New York.
Reginald MIMMS, Plaintiff,
v.
A.W. CARR, Captain Hess, Captain Pennick, K.
Page, K. Small, J. Anderson, C. Marshall, D.
Gonzalez, Ramcharan, Ms. Hamilton, and Dr. Ittayem, Defendants.
No. 09–CV–5740 (NGG)(LB).
June 9, 2011.
Reginald Mimms, Ayer, MA, pro se.
Orelia E. Merchant, United States Attorneys Office,
Eastern District of New York, Brooklyn, NY, for
Defendants.
MEMORANDUM & ORDER
NICHOLAS G. GARAUFIS, District Judge.
*1 Plaintiff pro se Reginald Mimms
(“Mimms”) brings this action under Bivens v. Six
Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619
(1971) against various government employees
working at the Metropolitan Detention Center
(“MDC”), a prison run by the United States Bureau
of Prisons (“BOP”). (See Am. Compl. (Docket
Entry # 7).) Defendants move to dismiss under FedFN1
eral Rule of Civil Procedure 12(b)(6).
(Docket
Entry # 48.) For the following reasons, Defendants'
motion is granted in part and denied in part.
FN1. Defendants move in the alternative
for summary judgment under Rule 56. As
discussed below, all of Mimms's claims are
dismissed, except for his claim against Defendants Anderson and Marshall for retaliating against him in violation of the First
Amendment. Both parties should be afforded an opportunity to conduct appropri-

ate discovery as to this claim before making any factual submissions on a motion
for summary judgment. Therefore, the
court, in its discretion, declines to rule at
this stage on Defendants' alternative Rule
56 motion.
I. BACKGROUND
Mimms alleges a series of events that occurred
at the MDC between October 2009 and January
2010. (See Am. Compl.) Accompanying the
Amended Complaint is an “Appendix” that includes
several administrative grievance forms that Mimms
filed, some of which correspond to the incidents alleged in the Amended Complaint, but many of
which do not. (See Docket Entry7–1, 7–2.) Also included in the Appendix are several requests by
Mimms for medical treatment. (See Docket Entry #
7–3.) Mimms's specific allegations against the
FN2
named Defendants are as follows:
FN2. Mimms also makes allegations regarding MDC employees who are not
named Defendants, namely verbal abuse
and threats by a Ms. Matos, a Mr. Ennis,
and a Mr. Birkland. (See Am. Compl. at
13; Docket Entry # 7–1 at 1.) Because it
does not appear that Mimms intends to sue
these individuals, and because nothing in
the docket indicates that they have been
served or named as defendants, the court
will not address these allegations.
(1) On October 4, 2009, Defendant Associate
Warden Carr (“Carr”) threatened to place Mimms
in the “Special Housing Unit [‘SHU’] and [to] give[
][him] an incident report for asking questions regarding the cadre program,” a prison program he
was assigned to. (Am. Compl. at 4, 13.) In addition,
Carr warned Mimms, “Do what we say or we'll lock
you up.” (Id. at 13.)
(2) On January 6, 2010, Defendant C. Marshall
(“Marshall”) made an inappropriate, sexually sug-

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gestive comment to Mimms, saying, “When you
gonna let me suck that[?],” while looking at
Mimms's crotch. (Id. at 5.)
(3) Mimms alleges a series of instances from
October 2009 to January 2010 in which MDC employees—namely,
Defendants
J.
Anderson
(“Anderson”), K. Page (“Page”), K. Small
(“Small”), Captain Hess (“Hess”), and Captain Pennick (“Pennick”)—mishandled his administrative
grievances by failing to accept them, failing to respond to them, or failing to forward them to appropriate parties. (Id. at 5, 12, 13.)
(4) On January 8, 2010, Defendant Dr. Ittayem
(“Ittayem”) refused to treat Mimms after he complained of nerve damage in his arm (id. at 5, 8) and,
on January 14, 2010, Defendant Ms. Hamilton
(“Hamilton”) failed to respond to Mimms's request
for dental treatment (id. at 6, 8).
(5) Mimms alleges that, on January 12 and 13,
2010, Anderson, Marshall, and other members of
MDC staff retaliated against him for repeatedly filing administrative grievances. Anderson was part of
the “unit team” assigned to Mimms, which apparently had some responsibility for handling his administrative grievances. (Id. at 13.) On three prior
occasions—in
October
and
December
2009—Mimms had handed Anderson grievances on
other staff members. (Id. at 5, 13.) On these occasions, Anderson had said to Mimms, “You sure you
want to file this[?],” “I'm tired of you and these ...
administrative remedies,” and “I'm so sick of you
and these” administrative grievances. (Id. at 5, 13.)
*2 On January 12, 2010, Mimms attempted to
give Anderson a grievance “on the legal department,” which Anderson refused to accept. (Id. at 6.)
“Ten minutes” later, Anderson “coerced” Marshall
into “shak[ing] down” Mimms's cell and confiscating his belongings. (Id.) The same day, Marshall
“ranted angrily” at Mimms, saying “let what I've
taken from you be a lesson” and “the next time you
write me up, spell my name right—Marshall has
two L's .” (Id.) The next day, January 13, 2010,

Marshall sprayed ketchup all over Mimms's cell
and told Mimms's cellmate, “Tell Mimms to clean
that shit up or I'll give him an incident report.” (Id.)
That same day, Mimms received four “incident reports.” (Id.) After Mimms explained to Defendant
D. Gonzalez (“Gonzalez”) that Gonzalez was
“violating policy and my rights regarding incident
reports and policy,” Gonzalez said, “I have to lock
you up.” (Id.) Mimms was then placed in the SHU;
he does not state for how long. (Id.)
Mimms alleges that he was the victim of
“retaliation for filing on staff.” (Id.) He further alleges that Anderson and Marshall are liable for
“conspiring to falsely arrest and imprison [him] for
exercising his constitutional rights by filing administrative remedies against staff for misconduct.” (Id.
at 7.)
In addition to alleging that Anderson, Marshall,
and Gonzalez were involved in imposing discipline
on him in retaliation for his filing of grievances,
Mimms alleges that Page and Defendant Ramcharan (“Ramcharan”), along with Anderson and Marshall, “caused [his] wrongful charging, prosecution,
false report, and ... wrongful conviction of prison
infractions by coercing, constructing, altering, manipulating, and fabricating evidence which formed
the basis for plaintiff [sic] charges.” (Id.) Mimms
does not provide any detail as to how or when such
fabrication occurred.
(6) Mimms alleges that Carr, Hess, Pennick,
Page, and Small failed to properly supervise or
train Anderson and Marshall. (Id. at 4, 8, 12.)
Nothing in Mimms's Amended Complaint or
Appendix indicates that he fully exhausted any of
his administrative grievances, as required, and Defendants move to dismiss on this ground (see Def.
Mem. (Docket Entry # 52) at 5–7). In response,
Mimms claims that he somehow exhausted his administrative remedies by filing separate civil suits
in connection with unrelated, prior events at different correctional facilities. (See Minims Resp.
(Docket Entry # 46) at 2.) Mimms does not state

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that he exhausted his claims in any other fashion.
He also argues that, in any event, the BOP's administrative grievance procedure violates the First
Amendment, such that exhaustion should be excused. (Id.) Mimms's own submissions establish
that he did not exhaust his administrative remedies
as per BOP procedure.

and powerful instrument for correcting constitutional violations[.]”); Kingsley v. Bureau of Prisons,
937 F.2d 26, 31 (2d Cir.1991) (“In a Bivens action,
‘damages may be obtained for injuries consequent
upon a violation of [the Constitution] by federal officials.” ’) (quoting Bivens, 403 U.S. at 395). Thus,
to the extent Mimms's claims fail to state a constitutional violation, they will be dismissed.

II. DISCUSSION
A. Applicable Legal Standards
1. Motion to Dismiss Standard
*3 In reviewing a defendant's motion to dismiss under Rule 12(b) (6), the court accepts as true
all allegations of fact made by the plaintiff and
draws all reasonable inferences from these allegations in the plaintiff's favor. See ATSI Commc'ns,
Inc. v. Shaar Fund. Ltd., 493 F.3d 87, 98 (2d
Cir.2007). “[A] pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197,
167 L.Ed.2d 1081 (2007) (internal quotation marks
omitted). But while “the submissions of a pro se litigant must be construed liberally and interpreted to
raise the strongest arguments that they suggest,”
Triestman v. Fed. Bureau of Prisons, 470 F.3d 471,
474–75 (2d Cir.2006) (internal quotation marks
omitted), even a pro se complaint will be dismissed
if it does not contain “sufficient factual matter, accepted as true, ‘to state a claim to relief that is
plausible on its face,’ “ Ashcroft v. Iqbal, ––– U.S.
––––, ––––, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868
(2009) (quoting Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d
929 (2007)). “A claim has facial plausibility when
the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at
1949.
Bivens provides a remedy only for constitutional violations. See Benzman v. Whitman, 523 F.3d
119, 125 (2d Cir.2008) (“A Bivens action is a blunt

2. Exhaustion
Under the Prison Litigation Reform Act of
1996 (“PLRA”), an action may not be brought
“with respect to prison conditions under [42 U.S.C.
§ ] 1983 of this title or any other federal law, by a
prisoner confined in any jail, prison, or other correctional facility until such administrative remedies
as are available are exhausted.” 42 U.S.C.A. §
1997e(a); see Porter v. Nussle, 534 U.S. 516, 524,
122 S.Ct. 983, 152 L.Ed.2d 12 (2002) (noting that
PLRA exhaustion requirement applies to Bivens
claims). “Once within the discretion of the district
court, exhaustion in cases covered by [the PLRA] is
now mandatory.” Id. The PLRA “requires proper
exhaustion,” Woodford v. Ngo, 548 U.S. 81, 93,
126 S.Ct. 2378, 165 L.Ed.2d 368 (2006), which
means the prisoner must “compl[y] with the
agency's deadlines and other critical procedural
rules,” id. at 90; see also Davis v. Reilly, 324
F.Supp.2d 361, 365 (E.D.N.Y.2004) (finding that,
to satisfy the exhaustion requirement, a prisoner
“must pursue his challenge ... through to the highest
level of administrative review prior to his suit”).
The BOP has established a four-step administrative-remedies process that federal inmates must
follow to meet the PLRA's exhaustion requirement.
First, the inmate must attempt to informally resolve
any issue of concern with prison staff. 28 C.F.R. §
542.13(a). If the inmate is dissatisfied with the informal resolution, he must submit a formal Administrative Remedy Request (BP–9) within twenty
days of the incident in question. Id. § 542.14(a).
Within twenty days of such filing, the prison
warden is required to respond in writing. Id. §
542.18. An inmate who is not satisfied with the

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warden's response to his BP–9 may submit an appeal on a BP–10 form to the Regional Director
within twenty days of the date of the warden's response. Id. § 542.15(a). The Regional Director is
required to respond in writing within thirty days of
such filing. Id. § 542.18. An inmate who is not satisfied with the Regional Director's response may
submit a final appeal on a BP–11 form to the BOP's
General Counsel within thirty days of the Regional
Director's response. Id. § 542.15(a). General Counsel is required to respond in writing within forty
days of such filing. Id. § 542.18.
*4 If, at any stage, the inmate does not receive
a response within the time allotted, he should consider his request or appeal to have been denied. Id.
In other words, if the deadline for response to either
a BP–9 or a BP–10 has expired, the inmate, in order
to preserve his claim, must file an appeal at the next
level, rather than file suit in the district court. See
George v. Morrison–Warden, No. 06–CV–3188
(SAS), 2007 WL 1686321, at *3 (S.D.N.Y. June 11,
2007) (“It is well-settled ... that even when an inmate files a grievance and receives no response, he
must nevertheless properly exhaust all appeals before his grievance is considered exhausted.”)
(emphasis in original and internal quotation marks
omitted).
Although exhaustion under the PLRA is mandatory, the court must employ a three-part inquiry
where defendants, as here, assert lack of exhaustion
as a defense. See Macias v. Zenk, 495 F.3d 37, 41
(2d Cir.2007). First, the court must ask whether administrative remedies were in fact “available” to
the prisoner. Id. Second, the court must inquire as
to “whether the defendants' own actions inhibiting
the inmate's exhaustion of remedies may estop one
or more of the defendants from raising the
plaintiff's failure to exhaust as a defense.” Id. Finally, if administrative remedies were available to
the inmate and the defendants are not estopped, the
court should consider whether “special circumstances,” such as a reasonable misunderstanding of
grievance procedures, have been plausibly alleged

to justify the prisoner's failure to exhaust. Id.
Though a plaintiff need not plead exhaustion,
see Jones v. Bock, 549 U.S. 199, 216, 127 S.Ct.
910, 166 L.Ed.2d 798 (2007), his complaint may be
dismissed on the ground of exhaustion if “the allegations in the complaint suffice to establish that
ground,” id. at 215.
B. Individual Claims
1. First Amendment Retaliation
Mimms alleges that, on January 12 and 13,
2010, Anderson, Marshall, and other members of
the MDC staff retaliated against him for filing administrative grievances. Mimms alleges that, on
several prior occasions, he had attempted to hand
Anderson—who was part of the “unit team” assigned to Mimms—administrative grievances on
other staff members. (Am. Compl. at 5, 13.) Upon
receiving these grievances, Anderson expressed
displeasure and said she was “sick of” Mimms's repeated filings. (Id. at 5, 13.) On January 12, 2010,
after Mimms attempted to hand Anderson another
grievance—this one on the “legal department”—Anderson directed Marshall to search
Mimms's cell. (Id. at 6.) Marshall did so, confiscating several of Mimms's belongings. (Id.) Some time
later, Marshall yelled that this should “be a lesson”
to Mimms, adding, “the next time you write me up,
spell my name right.” (Id.) The next day, Marshall
sprayed ketchup all over Mimms's cell and warned
that he would receive an “incident report” if he
failed to clean it up. (Id.) The same day, Mimms received four “incident reports” and was placed in the
SHU. (Id.) Mimms alleges that Anderson and Marshall “conspir[ed] to falsely arrest and imprison”
him, and that all this was done in retaliation for his
filing of complaints against prison staff. (Id. at 6,
7.)
*5 Mimms's allegations in connection with the
events of January 12 and 13, 2010, are not limited
to Anderson and Marshall. Mimms alleges that,
along with Anderson and Marshall, Page, Ramchar-

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an, and Gonzalez “caused [his] wrongful charging,
prosecution, false report, and ... wrongful conviction of prison infractions by coercing, constructing,
altering, manipulating, and fabricating evidence
which formed the basis for plaintiff [sic] charges.” (
Id . at 7.) Mimms also alleges that, on January 13,
2010, after he received the four incident reports, he
complained to Gonzalez that the incident reports violated his rights. (Id.) Gonzalez responded that,
nevertheless, he had to “lock [Mimms] up.” (Id.)
a. Exhaustion
Mimms's allegations are sufficient to support
the conclusion, at this stage, that, after January 13,
2010, the BOP's administrative grievance procedures were no longer “available” to him. See Macias
v. Zenk, 495 F.3d 37, 41 (2d Cir.2007) (exhaustion
is excused if administrative remedies were not
“available” to the inmate). Whether conduct by
prison staff renders grievance procedures unavailable to an inmate depends on whether “a similarly
situated individual of ordinary firmness” would
have deemed them available. Hemphill v. New
York, 380 F.3d 680, 688 (2d Cir.2004) (quoting
Davis v. Goord, 320 F.3d 346, 353 (2d Cir.2003)).
Mimms's allegations are sufficient to show that
Marshall's conduct and Mimms's subsequent discipline, apparently in retaliation for Mimms's previous
filing of grievances against prison staff, would have
deterred a similarly situated inmate of ordinary
firmness from pursuing further grievances or appeals. See Hill v. Donoghue, No. 08–CV–1045
(JS)(AKT), 2010 WL 3924858, at *1 (E.D.N.Y.
Sept. 30, 2010) (“[C]ourts have held that administrative remedies may not be available when prison
officials engage in affirmative misconduct, such as
threats or intimidation, to deter or impede a prisoner from filing a grievance.”); Hepworth v. Suffolk
County, No. 02–CV–6473 (ENV)(ETB), 2006 WL
2844408, at *4–7 (E.D.N.Y. Sept. 29, 2006)
(exhaustion excused where inmate was threatened
for filing a grievance); McCullough v. Burroughs,
No. 04–CV–3216 (FB)(LB), 2005 WL 3164248, at
*4 (E.D.N.Y. Nov. 29, 2005) (exhaustion excused
where inmate was assaulted in retaliation for filing

grievances); see also Macias, 495 F.3d at 45
(remanding for consideration of whether threats by
prison staff rendered administrative remedies unavailable); Hemphill, 380 F.3d at 688 (same).
Therefore, the court declines to dismiss, on exhaustion grounds, Mimms's claims relating to the events
of January 12–13, 2010.
b. Claims Against Anderson and Marshall
i. Sufficiency of Allegations
Recognizing “the near inevitability of decisions
and actions by prison officials to which prisoners
will take exception and the ease with which claims
of retaliation may be fabricated,” the Second Circuit has warned that retaliation claims should be
treated “with skepticism and particular care.”
Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir.1995).
“However, that does not mean that such claims are
automatically to be dismissed.” See Jones v. Harris,
665 F.Supp.2d 384, 397 (S.D.N.Y.2009). To prove
a First Amendment retaliation claim, the plaintiff
must demonstrate (1) that the speech or conduct at
issue was protected, (2) that the defendant took adverse action against the plaintiff, and (3) a causal
connection between the protected speech and the
adverse action. See Espinal v. Goord, 558 F.3d 119,
128 (2d Cir.2009).
*6 The first requirement—that the conduct in
question be protected-is met, as it is well-settled
that filing prison grievances is activity protected by
the First Amendment. See, e.g ., Gill v. Pidlypchak,
389 F.3d 379, 384 (2d Cir.2004); Davis v. Goord,
320 F.3d 346, 352–53 (2d Cir.2003).
The second requirement—that the prison officials' actions be “adverse” to the prisoner—is met
as well. In the prison context, whether a retaliatory
action is “adverse” depends on whether it would
deter a similarly situated prisoner of ordinary firmness from exercising his constitutional rights. See
Espinal, 558 F.3d at 129 n. 7. The prisoner “need
not demonstrate an actual or subjective chill—that
is, any dissuasion from further exercising his own

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rights.” Gill v. Calescibetta, 157 F. App'x 395, 398
(2d Cir.2005) (emphasis in original) (citing
Pidlypchak, 389 F.3d at 380). The Second Circuit
has held that the retaliatory filing of false misbehavior reports against a prisoner and his placement in
“keeplock” constitutes adverse action. See
Pidlypchak, 389 F.3d at 384; see also Mateo v.
Fischer, 682 F.Supp.2d 423, 434 (S.D.N.Y.2010)
(filing of false misbehavior report constitutes adverse action). Mimms alleges that Marshall, on Anderson's order, searched Mimms's cell and confiscated his belongings; that Marshall subsequently
sprayed ketchup all over Mimms's cell and
threatened to file an incident report if Mimms didn't
clean it up; that Anderson and Marshall
“construct[ed], alter[ed], manipulate [ed], and fabricat[ed] evidence which formed the basis” for disciplinary charges against Mimms; that Mimms was
given four disciplinary incident reports; and that
Mimms was subsequently put in the SHU. These allegations clearly meet the “adverse action” requirement.
Mimms has also met the third requirement, that
of causation. “In order to satisfy the causation requirement, allegations must be sufficient to support
the inference that the speech played a substantial
part in the adverse action.” Davis, 320 F.3d at 354.
Mimms alleges that, on several prior occasions, Anderson expressed displeasure at Mimms's repeated
filing of grievances. (Am.Compl.5, 13.) He also alleges that Marshall stated that the confiscation of
Mimms's belongings should be a “lesson,” and added, “the next time you write me up, spell my name
right—Marshall has two L's.” (Id. at 6.) These alleged comments by Anderson and Marshall tie their
alleged retaliatory conduct to Mimms's filing of
prison grievances. Furthermore, “[a] plaintiff can
establish a causal connection that suggests retaliation by showing that protected activity was close
in time to the adverse action.” Espinal, 558 F.3d at
129; see also Mateo, 682 F.Supp.2d at 435
(“Circumstantial evidence of causation may exist
where the adverse action occurs soon after the protected activity”; where prisoner alleged that false

misbehavior report was filed one day after he filed
a grievance, causation requirement was met) (citing
Colon, 58 F.3d at 872). Minims alleges that the retaliatory action took place on the same day and the
day after he attempted, on January 12, 2010, to file
a prison grievance against the “legal department”
by handing it to Anderson. (Am. Compl. at 6.) Furthermore, Mimms includes, in his Appendix, a
grievance filed against Anderson and Marshall, also
dated January 12, 2010. (See Docket Entry # 7–2 at
8.)
*7 In sum Mimms has alleged sufficient, plausible facts to show that Anderson and Marshall subjected him to adverse action in retaliation for his
exercise of protected activity, namely the filing of
administrative grievances against prison staff.
Mimms has therefore stated a First Amendment retaliation claim as to Anderson and Marshall.
ii. Qualified Immunity
Notwithstanding Defendants' argument to the
contrary (see Def. Mem. at 28), Anderson and Marshall are not entitled to qualified immunity.
“Qualified immunity shields government officials
from civil suits for damages ‘insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person
would have known.’ “ Costello v. City of Burlington, 632 F.3d 41, 51 (2d Cir.2011) (quoting Harlow
v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727,
73 L.Ed.2d 396 (1982)). Accordingly, a government official “is shielded from liability for civil
damages if his conduct did not violate clearly established rights or if it would have been objectively
reasonable for the official to believe his conduct did
not violate plaintiff's rights.” Reuland v. Hynes, 460
F.3d 409, 419 (2d Cir.2006). In determining whether the constitutional right in question was “clearly
established,” a court may refer to the decisional law
of the applicable circuit. Costello, 632 F.3d at 52.
As the case law cited above demonstrates, it
was clearly established, at the time of the incidents
in question, that the filing of prison grievances was
protected by the First Amendment. See Gill v.

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Pidlypchak, 389 F.3d 379, 384 (2d Cir.2004); Davis
v. Goord, 320 F.3d 346, 352–53 (2d Cir.2003). It
was also clearly established that subjecting a prisoner to fabricated disciplinary reports and consequent confinement in the SHU, in retaliation for
the filing of such grievances, constituted unconstitutional “adverse action.” See Espinal v. Goord,
558 F.3d 119, 129 n. 7 (2d Cir.2009); Pidlypchak,
389 F.3d at 380. Moreover, where, as here, the allegations in the complaint are sufficient to support
the claim that a defendant violated clearly established constitutional rights with a retaliatory
motive, the defendant cannot assert that his conduct
was “objectively reasonable.” See Johnson v. Ganim, 342 F.3d 105, 117 (2d Cir.2003).
Accordingly, the court denies Defendants' motion to dismiss as to Mimms's claim that Anderson
and Marshall retaliated against him in violation of
FN3
the First Amendment.
FN3. Contrary to Defendants' argument (
see Def. Mem. at 19), Mimms's First
Amendment retaliation claim is not barred
by Edwards v. Balisok, 520 U.S. 641, 117
S.Ct. 1584, 137 L.Ed.2d 906 (1997). In
that case, the Supreme Court, extending its
ruling in Heck v. Humphrey, 512 U.S. 477,
114 S.Ct. 2364, 129 L.Ed.2d 383 (1994),
held that the district courts must dismiss
any civil claim necessarily implying the invalidity of a prison disciplinary proceeding
affecting the length of sentence (e.g., affecting “good time” credit), unless the disciplinary action has previously been reversed. See Balisok, 520 U.S. at 648. In
Peralta v. Vasquez, 467 F.3d 98 (2d
Cir.2006), the Second Circuit made clear
that the Balisok rule has no application
where the prison disciplinary proceeding in
question does not affect the length of the
inmate's sentence. Id. at 103–04; see also
McEachin v. Selsky, 225 F. App'x 36, 37
(2d Cir.2007). Nothing in the parties' submissions indicates that the discipline to

which Mimms was subject on January 13,
2010 affected the length of his sentence.
Therefore, Balisok does not apply.
c. Claims Against Ramcharan, Page, and Gonzalez
i. First Amendment
To state a First Amendment retaliation claim
against Ramcharan, Page, or Gonzalez, Mimms, under Ashcroft v. Iqbal, ––– U.S. ––––, ––––, 129
S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009), must allege facts sufficient to render it facially “plausible”
that those Defendants took “adverse action” against
Mimms that was causally connected to his filing of
prison grievances. Whereas Mimms presents a relatively detailed, plausible narrative as to Anderson
and Marshall, he offers no such detail to add plausibility to his allegations against Page, Ramcharan,
and Gonzalez.
*8 Ramcharan is mentioned only once in the
Amended Complaint, as part of the group of five
people (including Ramcharan, Anderson, Page,
Marshall, and Gonzalez) who allegedly fabricated
evidence. (Am. Compl. at 7.) Mimms does not differentiate among the conduct of these five and does
not specify what evidence was allegedly fabricated,
or how.
Page is mentioned elsewhere in the Amended
Complaint, where Mimms alleges that he, along
with Anderson and Small, failed to properly handle
Mimms's administrative grievances. (Id. at 5, 13.)
Mimms also alleges that Page, along with Carr,
Hess, Pennick, and Small, failed to properly train
Anderson and Marshall. (Id. at 8.) Nonetheless,
these additional allegations do not add detail or
plausibility to Mimms's claim that Page participated
in fabricating the evidence that led to Mimms's
January 13, 2010 placement in the SHU.
Mimms alleges that Gonzalez was one of the
five who fabricated evidence and also alleges that,
on January 13, 2010, Gonzalez said to Mimms, “I
have to lock you up.” (Id. at 6, 7.) These are the

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only mentions of Gonzalez in the Amended Complaint. Mimms's allegations against Gonzalez are
not meaningfully different from those against
Ramcharan. Gonzalez's alleged statement that he
had to “lock [Mimms] up” does not suggest that he
participated in the alleged fabrication of evidence
or that he acted with retaliatory motive.
Mimms's bare allegation that Ramcharan, Page,
and Gonzalez, at some unidentified time, fabricated
unidentified evidence against Mimms is insufficient
to meet the Iqbal plausibility standard. See Iqbal,
129 S.Ct. at 1949 (allegations are insufficient to
state a claim if they consist of “ ‘naked assertion[s]’
devoid of ‘further factual enhancement’ ”) (quoting
Twombly, 550 U.S. at 5571: see also Arar v. Ashcroft, 585 F.3d 559, 569 (2d Cir.2009) (holding that
Iqbal plausibility standard was not met as to one of
plaintiff's claims where plaintiff, in connection with
this claim, alleged that “ ‘Defendants[,]’ undifferentiated,” violated his rights, and “fail[ed] to specify any culpable action taken by any single defendant”). The court therefore dismisses Mimms's
First Amendment retaliation claims against
Ramcharan, Page, and Gonzalez.
ii. Due Process
To the extent that Mimms's allegations against
Ramcharan, Page, and Gonzalez can be read to
claim a violation of Mimms's due process rights,
such a claim must also fail. “[T]o present a due process claim, a plaintiff must establish (1) that he
possessed a liberty interest and (2) that the defendant(s) deprived him of that interest as a result of insufficient process.” Ortiz v. McBride, 380 F.3d 649,
654 (2d Cir.2004) (internal quotation marks omitted). “A prisoner's liberty interest is implicated by
prison discipline, such as SHU confinement, only if
the discipline imposes an atypical and significant
hardship on the inmate in relation to the ordinary
incidents of prison life.” Davis v. Barrett, 576
F.3d 129, 133 (2d Cir.2009) (internal quotation
marks and alterations omitted). An inmate who alleges that prison officials violated his due process
rights by imposing discipline must show that the

conditions of his disciplinary segregation were
more onerous than “routine prison conditions” or
that the duration of the segregation was longer than
permissible “discretionary confinement.” Id. The
Second Circuit noted in Colon v. Howard, 215 F.3d
227 (2d Cir.2000), that restrictive confinements of
less than 101 days do not generally raise a liberty
interest warranting due process protection, and that,
therefore, an inmate subjected to such confinement
would have to prove that the conditions were more
onerous than usual. Id. at 231–32 & 232 n. 5. Nothing in Mimms's Amended Complaint indicates that
he was subjected to confinement that was unusually
onerous or extended. Thus, Mimms has failed to
state a claim that the January 13, 2010 disciplinary
proceeding implicated any due-process-protected
liberty interest. Mimms also fails to state a claim
that Ramcharan, Page, and Gonzalez deprived him
of due process, because, as explained above, his allegation that those Defendants participated in fabricating evidence against him lacks plausibility under Iqbal.
2. Threat to Place Mimms in the SHU
*9 Mimms alleges that, on October 4, 2009,
Carr threatened to place him in the SHU “for asking
questions” about a prison program, after which
Mimms was given an “incident report” in connection with the incident. (Am. Compl. at 4, 13.) Any
claims related to these allegations are unexhausted.
Mimms alleges that he submitted an administrative
grievance in connection with Carr's threat, and never received any response. (Id. at 13.) As the applicable BOP rules make clear, Mimms was required to
file a BP–9 Administrative Remedy Request within
twenty days of the incident, i.e., by October 24,
2009. If he received no response to the BP–9 within
twenty additional days—i.e., by November 13,
2009—he was required to assume that the relief requested in the BP–9 had been denied and to submit
a BP–10 appeal. Neither in his Amended Complaint
nor in his response to Defendants' motion does
Mimms claim to have filed either a BP–9 or a
BP–10. Instead, he argues that he exhausted his administrative remedies by filing unrelated lawsuits

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and that the BOP's grievance procedures are unconstitutional. (See Mimms Resp. at 2.) The court considers it established by the pleadings that Mimms
failed to exhaust his administrative remedies in
connection with the October 4, 2009 incident, and
therefore any related claims must be dismissed. See
Johnson v. Rowley, 569 F.3d 40, 45 (2d Cir.2009)
(affirming dismissal of claim where inmate's failure
to properly exhaust was “undisputed”).
3. Inappropriate Sexual Comment
Mimms alleges that, on January 6, 2010, Marshall made an inappropriate sexual comment to
him. (Am. Compl. at 5.) Exhaustion is excused as
to this claim for the same reason discussed above as
to Mimms's First Amendment retaliation claim.
After the alleged retaliation of January 12 and 13,
2010—that is, before the passing of the twenty-day
deadline for filing a grievance in connection with
the January 6, 2010 incident—an inmate of
“ordinary firmness” would have felt that administrative grievance procedures were no longer
“available.”
Nonetheless, Mimms fails to state a claim in
connection with this incident. Allegations of verbal
harassment, unaccompanied by resulting injury, do
not state a claim under the United States Constitution. See Cole v. Fischer, 379 F. App'x 40, 43 (2d
Cir.2010); Felder v. Filion, 368 F. App'x 253, 256
(2d Cir.2010) (both citing Purcell v. Coughlin, 790
F.2d 263, 265 (2d Cir.1986)). An inmate's allegations of “severe or repetitive” sexual abuse may
state a claim under the Eighth Amendment. See
Boddie v. Schnieder, 105 F.3d 857, 861 (2d
Cir.1997). The comment alleged by Mimms does
not rise to this level, however. See id. (finding that
plaintiff's allegations of “small number of incidents
in which he allegedly was verbally harassed,
touched, and pressed against without his consent”
were insufficiently serious to state a claim under
the Eighth Amendment): see also Jones v. Harris,
665 F.Supp.2d 384, 396 (S.D.N.Y.2009) (“Several
district courts have considered the issue, and have
held that verbal sexual harassment of a prisoner,

without physical contact, does not violate the
Eighth Amendment.”) (citing cases). “This is true
even though sexual harassment in any form, and no
matter how minor the incident, is always despicable.” Id. at 396.
*10 Because Mimms's allegations as to Marshall's conduct on January 6, 2010 do not make out
a constitutional violation, any claims relating to this
conduct are dismissed.
4. Improper Handling of Administrative Grievances
Mimms alleges that, between October 2009 and
January 2010, Anderson, Page, Small, Hess, and
Pennick mishandled his administrative grievances
by failing to accept them, failing to respond to
them, or failing to forward them to appropriate
parties. (Am. Compl. at 5, 12, 13.) Based on
Mimms's filings, it appears that Mimms did not exhaust his administrative remedies as to these incidents. Further, in at least some instances, this failure
to exhaust cannot be excused by the alleged January 12–13, 2010 retaliation against Mimms, because there were steps Mimms was required to take
to exhaust prior to January 12, 2010. However, the
court need not determine which of these claims
must be dismissed for lack of exhaustion, since it is
clear that these allegations fail to state a constitutional claim, either under the Due Process Clause or
the First Amendment.
To make out a due process claim, a plaintiff
must prove that he had a liberty interest upon which
defendant's conduct infringed. See Wilkinson v.
Austin, 545 U.S. 209, 221, 125 S.Ct. 2384, 162
L.Ed.2d 174 (2005). It is well-established that prison grievance procedures do not create a dueprocess-protected liberty interest. See, e.g., Mateo
v. Fischer, 682 F.Supp.2d 423, 431 n. 3
(S.D.N.Y.2010); Mastroianni v. Reilly, 602
F.Supp.2d 425, 437 (E.D.N.Y.2009); Torres v.
Mazzuca, 246 F.Supp.2d 334, 342 (S.D.N.Y.2003).
Thus, the alleged failure of prison staff to properly
respond to or accept Mimms's grievances did not, in
itself, violate Mimms's right to due process.

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Nor did it violate Mimms's First Amendment
rights. The First Amendment guarantees meaningful access to the courts and the right to petition the
government for redress. See Bill Johnson's Restaurants, Inc. v. NLRB, 461 U.S. 731, 741, 103 S.Ct.
2161, 76 L.Ed.2d 277 (1983). The First Amendment is not implicated, however, where prison officials deny an inmate access to grievance procedures. As discussed above, where an inmate files a
grievance but is dissatisfied with the response, or
lack of response, he may appeal to the Regional
Director and then to the BOP's General Counsel. If
the inmate is unable to obtain relief in this manner,
he may bring suit in federal court. In particular, if
the conduct of prison staff renders these procedures
unavailable to the inmate, failure to exhaust will be
excused and the inmate may bring suit in federal
court. See Macias v. Zenk, 495 F.3d 37, 41 (2d
Cir.2007). Thus, the First Amendment rights to petition the government and access the courts are not
infringed where prison officials deny inmates access to grievance procedures. See, e.g., Harris v.
Westchester County Dep't of Corrections, No.
06–CV–2011 (RJS), 2008 WL 953616, at *5
(S.D.N.Y. Apr.3, 2008) (citing Flick v. Alba, 932
F.2d 728, 729 (8th Cir.1991)); Shell v. Brzezniak,
365 F.Supp.2d 362, 370–71 (W.D.N.Y.2005); Lumaj v. Williams, No. 03–CV–1849 (PKC), 2004
WL 1207894, at *5 (S.D.N.Y. June 2, 2004); Cancel v. Goord, No. 00–CV–2042 (LMM), 2001 WL
303713, at *3–4 (S.D.N.Y. Mar.29, 2001).
*11 Accordingly, the court dismisses Mimms's
claims based on the failure by MDC staff to propFN4
erly respond to his prison grievances.
FN4. For the same reasons—the lack of a
protected liberty interest and the inmate's
unimpeded access to federal court—the
court finds meritless Mimms's argument
that the BOP's grievance procedures are
themselves
5. Deliberate Indifference to Mimms's Medical
Needs

a. Claim Against Hamilton
Mimms alleges that, on January 14, 2010,
Hamilton failed to respond to Mimms's request for
dental treatment. (Am. Compl. at 6, 8.) This claim
is dismissed for lack of jurisdiction.
In a sworn declaration accompanying the Defendants' motion, Nicole McFarland (“McFarland”),
a staff attorney employed by the MDC, states that
Hamilton worked at the MDC as a “dentist commissioned by the Public Health Service (‘PHS').”
(McFarland Decl. (Docket Entry # 50) ¶ 22.)
Mimms does not dispute this (see Mimms Resp.)
and the court finds that Hamilton was, as McFarland states, commissioned by the PHS.
Under 42 U.S.C. § 233(a), the Federal Tort
Claims Act (“FTCA”), 28 U.S.C. § 1346(b), is the
“exclusive remedy” for actions “resulting from the
performance of medical, surgical, dental, or related
functions, ... by any commissioned officer or employee of the Public Health Service while acting
within the scope of his office or employment.” See
Cuoco v. Moritsugu, 222 F.3d 99, 107 (2d
Cir.2000). Section 233(a) specifically extends this
immunity to civil actions based on an “omission.”
Furthermore, § 233(a) extends to alleged constitutional violations, shielding PHS employees from
Bivens actions arising out of their employment duties. See generally Hui v. Castaneda, ––– U.S.
––––, 130 S.Ct. 1845, 176 L.Ed.2d 703 (2010): see
also Cuoco, 222 F.3d at 107–08.
It is clear that Hamilton's alleged failure to respond to Mimms's request for dental treatment was
an omission “within the scope” of her employment
as a dentist commissioned by the PHS. See, e.g.,
Warrender v. United States, No. 09–CV–2697
(KAM)(LB), 2011 WL 703927, at *4 (E.D.N.Y.
Feb. 17, 2011) (defendant PHS employee's delay in
providing medication to plaintiff was within the
scope of defendant's employment); Brown v. McElroy, 160 F.Supp.2d 699, 703 (S.D.N.Y.2001)
(alleged failure by defendant PHS employees to
provide plaintiff with medical treatment, “if true,

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occurred within their capacity as doctors responsible for rendering medical treatment to Brown”).
Since, under § 233(a), the FTCA provides the
“exclusive remedy” for claims such as this one, the
court lacks subject matter jurisdiction over
Mimms's Bivens claim against Hamilton. See Adekova v. Holder, 751 F.Supp.2d 688, 693–94
(S.D.N.Y.2010) (plaintiff's claims against PHS employees dismissed for lack of subject matter jurisdiction under § 233(a)); Libbett v. Doody, 686
F.Supp.2d 271, 275 n. 5 (W.D.N.Y.2010) (“[T]he
issue of § 233(a)'s applicability to plaintiff's claims
goes to the Court's subject matter jurisdiction over
those claims[.]”). Accordingly, the court dismisses
this claim for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). The
court, in dismissing on jurisdictional grounds, is
permitted to rely on McFarland's affidavit without,
in so doing, converting Defendants' motion to dismiss into one for summary judgment. See Alliance
For Environmental Renewal, Inc. v. Pyramid
Crosseates Co., 436 F.3d 82, 88 & 88 n. 8 (2d
Cir.2006); J.S. ex rel. N.S. v. Attica Central
FN5
Schools, 386 F.3d 107, 110 (2d Cir.2004).
FN5. Under 28 U.S.C. § 2679(d)(1), the
court must deem Mimms's claim against
Hamilton to be a claim under the FTCA,
such that “the United States shall be substituted as the party defendant.” The court,
however, must dismiss such a claim for
lack of subject matter jurisdiction, since
Mimms failed to exhaust his administrative
remedies under the FTCA. See Celestine v.
Mount Vernon Neighborhood Health Ctr.,
403 F.3d 76, 82 (2d Cir.2005) (“The FTCA
requires that a claimant exhaust all administrative remedies before filing a complaint
in federal district court. This requirement
is jurisdictional and cannot be waived.”).
In order to exhaust an FTCA claim, a federal inmate must first file his claim with
the BOP's regional office. See 28 C.F.R. §
543.31(c). If the inmate is dissatisfied with

the regional office's response, he may submit a written request for reconsideration.
See id. § 543 .32(g). Only if the inmate is
“dissatisfied with the final agency action”
may he file an FTCA suit in federal court.
See id.; Ali v. Federal Bureau of Prisons,
552 U.S. 214, 242, 128 S.Ct. 831, 169
L.Ed.2d 680 (2008). Under 28 U.S.C. §
2401(b), an FTCA action may not proceed
unless the plaintiff presents his claim to
the appropriate federal agency with two
years of the time the claim accrued.
Mimms has not administratively exhausted
his claim as to Hamilton in this manner,
thus depriving the court of subject matter
jurisdiction over any FTCA claim.
b. Claim Against Ittayem
*12 Minims alleges that, on January 8, 2010,
Ittayem refused to treat the nerve damage in
Mimms's left arm. (Am. Compl. at 5, 8.)
For the same reason discussed above as to
Mimms's retaliation claim, exhaustion of administrative remedies is excused as to this claim. This is
so even though Mimms does not allege that Ittayem
was personally involved in the retaliation. Anderson and Marshall allegedly retaliated against
Mimms for filing grievances against prison staff in
general—not only grievances against Anderson and
Marshall themselves. Mimms's allegations as to this
retaliation, taken as true, are sufficient to show that
a person “of ordinary firmness” would reasonably
have felt that administrative grievances were unavailable as to any member of the MDC's staff, at
least in the immediate aftermath of the alleged
January 12–13, 2010 retaliation.
However, Mimms fails to state a constitutional
claim against Ittayem. Where a prison official exhibits “deliberate indifference to serious medical
needs” of an inmate, the official violates the Eight
Amendment's prohibition of cruel and unusual punishment. See Estelle v. Gamble, 429 U.S. 97, 104,
97 S.Ct. 285, 50 L.Ed.2d 251 (1976). To state such
an Eight Amendment claim, the plaintiff must plead

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allegations meeting both “objective” and
“subjective” standards. See Salahuddin v. Goord,
467 F.3d 263, 279 (2d Cir.2006).
The “objective” standard requires that the alleged deprivation of medical care be “sufficiently
serious.” Id. “Only deprivations denying the minimal civilized measure of life's necessities are sufficiently grave to form the basis of an Eighth Amendment violation.” Id. (citing Wilson v. Seiter, 501
U.S. 294, 298, 111 S.Ct. 2321, 115 L.Ed.2d 271
(1991)) (internal quotation marks omitted). If the
plaintiff, as in Mimms's case, alleges “a failure to
provide any treatment for [his] medical condition,
courts examine whether the inmate's medical condition is sufficiently serious.” Id. at 280. “Factors relevant to the seriousness of a medical condition include whether ‘a reasonable doctor or patient would
find [it] important and worthy of comment,’ whether the condition ‘significantly affects an individual's daily activities,’ and whether it causes ‘chronic
and substantial pain.’ “ Id. (quoting Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir.1998)); see also
Chance, 143 F.3d at 702 (serious medical condition
exists where “the failure to treat a prisoner's condition could result in further significant injury or the
unnecessary and wanton infliction of pain”)
(internal quotation marks omitted). A plaintiff is
not required to demonstrate that he experienced
“pain that is at the limit of human ability to bear,
nor [that his] condition will degenerate into a lifethreatening one.” Brock v. Wright, 315 F.3d 158,
163 (2d Cir.2003).
The “subjective” standard requires that the defendant prison official have acted with a sufficiently culpable state of mind, namely “deliberate
indifference.” See Salahuddin, 467 F.3d at 280
(citing Wilson, 501 U.S. at 300). Deliberate indifference “entails something more than mere negligence ... [but] something less than acts or omissions
for the very purpose of causing harm or with knowledge that harm will result.” Farmer v. Brennan,
511 U.S. 825, 835, 114 S.Ct. 1970, 128 L.Ed.2d
811 (1970). “Deliberate indifference is a mental

state equivalent to subjective recklessness, as the
term is used in criminal law.” Salahuddin, 467 F.3d
at 280 (citing Farmer, 511 U.S. at 839–40). Thus, a
plaintiff must allege sufficient facts to show that
“the charged official act[ed] or fail[ed] to act while
actually aware of a substantial risk that serious inmate harm [would] result.” Id.; see also Farmer,
511 U.S. at 837–38 (criminal law “generally permits a finding of recklessness only when a person
disregards a risk of harm of which he is aware”);
Harrison v. Barkley, 219 F.3d 132, 137 (2d
Cir.2000) ( “Deliberate indifference will exist when
an official ‘knows that inmates face a substantial
risk of serious harm and disregards that risk by failing to take reasonable measures to abate it’ ”)
(quoting Farmer, 511 U.S. at 847).
*13 Mimms alleges that Ittayem refused to
FN6
treat nerve damage in his left arm.
In particular, Mimms alleges that, at the time of his treatment
request to Ittayem, he suffered from nerve damage
in his left arm due to a broken finger in his left
hand, accompanied by numbness, weakness, and
chronic pain. (Am. Compl. at 8, 9, 11; Docket
Entry # 7–3 at 3, 4.)
FN6. In his Amended Complaint, Mimms
refers to several other medical problems as
well, but these do not appear to be relevant
to his claim against Ittayem.
The court need not determine whether these
conditions are sufficiently serious to state an Eighth
Amendment claim, since it is clear that Mimms
fails sufficiently to allege Ittayem's “deliberate indifference,” as required. Mimms alleges that he
asked Ittayem, “How long before I'm seen regarding nerve damage to my left arm?” (Am. Compl. at
5.) Ittayem then told Mimms, “Lift your arm,
stretch it out.” (Id.) “After that,” Mimms states,
“Dr. Ittayem smirked and said ‘Nerve damage, huh’
and dismissed me with a wave of his hand.” (Id.)
The clear implication is that Mimms did in fact lift
and stretch his left arm and that this convinced Dr.
Ittayem that Mimms's alleged “nerve damage” was
not serious. In other words, Mimms's own allega-

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tions show that Ittayem, while perhaps negligent,
did not disregard a substantial risk, of which he was
aware, that failing to provide Mimms treatment
would cause serious harm.
Because Mimms pleads insufficient facts to
meet the “subjective” standard applicable to Eight
Amendment deliberate indifference claims, his
claim as to Ittayem is dismissed.
6. Supervisory Liability
Finally, Mimms alleges that Carr, Hess, Pennick, Page, and Small failed to properly supervise
or train Anderson and Marshall. (Am. Compl. at 4,
8, 12.) Because the only claim that survives Defendants' motion to dismiss is Mimms's claim that
Anderson and Marshall retaliated against him in violation of the First Amendment, the court considers
Mimms's supervisory liability claim only in connection with that alleged constitutional violation.
FN7
FN7. Minims also alleges that Carr is liable for “malicious prosecution.” (Am.
Compl. at 4.) The court assumes that
Mimms here refers to his January 13, 2010
disciplinary proceeding and subsequent
placement in the SHU. Mimms does not allege that Carr was personally involved in
this incident. Therefore, the court reads
Mimms's Amended Complaint to allege
that Carr is liable to the extent that he
failed to supervise or train those who were
personally involved, i.e., Anderson and
Marshall. unconstitutional (see Mimms
Resp. at 2).
There is no vicarious liability in Bivens suits.
See Iqbal, 129 S.Ct. at 1948. Accordingly, the
“plaintiff must plead that each Government-official
defendant, through the official's own individual actions, has violated the Constitution.” Id. A plaintiff
can prove such personal liability in the following
ways:
(1) the defendant participated directly in the al-

leged constitutional violation, (2) the defendant,
after being informed of the violation through a
report or appeal, failed to remedy the wrong, (3)
the defendant created a policy or custom under
which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in
supervising subordinates who committed the
wrongful acts, or (5) the defendant exhibited deliberate indifference ... by failing to act on information indicating that unconstitutional acts
were occurring.
Back v. Hastings On Hudson Union Free
School Dist., 365 F.3d 107, 127 (2d Cir.2004)
(internal quotation marks omitted). Where a
plaintiff alleges the violation of a constitutional
right resulting from a supervisory official's failure
to train subordinates, he must prove (1) that the official was deliberately indifferent to the need to
train subordinates as to their obligation not to violate the constitutional right at issue, and (2) that the
lack of training actually caused the alleged constitutional violation. See Connick v. Thompson, –––
U.S. ––––, ––––, 131 S.Ct. 1350, 1358, 179
L.Ed.2d 417 (2011).
*14 Mimms does not allege any specific facts
to support any of the above-listed theories of supervisory liability. Instead, his claim that Carr, Hess,
Pennick, Page, and Small failed to supervise or
train Anderson and Marshall is wholly conclusory,
and thus insufficient to support a finding of liability. See Pettus v. Morgenthau, 554 F.3d 293, 300
(2d Cir.2009) (affirming dismissal of failureto-supervise claim against supervisory official since
complaint lacked “any hint that [the official] acted
with deliberate indifference to the possibility that
his subordinates would violate [plaintiff's] constitutional rights.”). Accordingly, Mimms's supervisory
liability claims are dismissed.
III. CONCLUSION
Defendants' motion to dismiss as to Mimms's
claim that Anderson and Marshall violated the First
Amendment by retaliating against Mimms for filing

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prison grievances is DENIED. As to all of Mimms's
other claims, Defendants' motion to dismiss is
GRANTED.
SO ORDERED.
E.D.N.Y.,2011.
Mimms v. Carr
Not Reported in F.Supp.2d, 2011 WL 2360059
(E.D.N.Y.)
END OF DOCUMENT

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Only the Westlaw citation is currently available.
United States District Court,
N.D. New York.
Johnathan JOHNSON, Plaintiff,
v.
ADAMS, Doctor, Upstate Correctional Facility, et
al., Defendants.
Civil Action No. 9:10–CV–1082 (DNH/DEP).
July 5, 2012.
Johnathan Johnson, Malone, NY, pro se.
Hon. Eric T. Schneiderman, Office of Attorney
General State of New York, Adele M.
Taylor–Scott, Esq., Assistant Attorney General, of
Counsel, Albany, NY, for Defendants.
REPORT AND RECOMMENDATION
DAVID E. PEEBLES, United States Magistrate
Judge.
*1 Pro se plaintiff Johnathan Johnson, a prolific inmate litigant who has been granted leave to
proceed in forma pauperis (“IFP”), has commenced
this action pursuant to 42 U.S.C. § 1983 against the
former Deputy Commissioner and Director of
Health Services for the New York State Department
of Corrections and Community Supervision
(“DOCCS”), the Superintendent of the correctional
facility in which he is incarcerated, and a physician,
a physician's assistant, and two registered nurses
who work at that prison, alleging deprivation of his
civil rights. In his complaint, Johnson maintains
that he has been denied various medications including an inhaler for his alleged chronic obstructive
pulmonary disease (“COPD”), Neutrogena soap,
and A & D Ointment, and asserts that the denial
represents deliberate indifference to his serious
medical needs, in violation of the Eighth Amendment, and was in retaliation for his having filed
grievances, in violation of his rights under the First
Amendment. Plaintiff's complaint seeks recovery of

compensatory and punitive damages in the amount
of $1 million each, as well as injunctive and declaratory relief.
Now that discovery is closed, the defendants
have moved for summary judgment seeking dismissal of plaintiff's claims on a variety of grounds,
including qualified immunity. Also included within
their motion is an application by the defendants for
revocation of plaintiff's IFP status based upon the
“three strikes” provision of 28 U.S.C. § 1915(g).
Because it is abundantly clear that plaintiff has accumulated three strikes, within the meaning of that
provision, and based upon the lack of any palpable
showing of circumstances sufficient to meet the imminent danger exception to the three strikes rule, I
recommend that plaintiff's IFP status be revoked
and that the remaining portions of defendants' motion be held in abeyance pending plaintiff's payment of the required $350 filing fee.
I. BACKGROUND

FN1

FN1. In light of the procedural posture of
the case the following recitation is derived
from the record now before the court, with
all inferences drawn and ambiguities resolved in favor of the plaintiff. Terry v.
Ashcroft, 336 F.3d 128, 137 (2d Cir.2003).
Plaintiff is a New York State prison inmate
confined under the supervision of the DOCCS. See
generally Complaint (Dkt. No. 1). At all times relevant to his complaint, plaintiff was designated to
the Upstate Correctional Facility, located in
Malone, New York, and remains confined at that
FN2
facility.
Id.
FN2. Upstate is a maximum security prison
comprised exclusively of special housing
unit (“SHU”) cells in which inmates are
confined, generally though not always for
disciplinary reasons, for twenty-three
hours each day. See Samuels v. Selsky, No.

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01 CIV. 8235, 2002 WL 31040370, at *4
n. 11 (S.D.N.Y. Sept. 12, 2002). Copies of
all unreported decisions cited in this document have been appended for the convenience of the pro se plaintiff. [Editor's Note:
Attachments of Westlaw case copies deleted for online display.]
In his complaint plaintiff complains of the failure of prison medical personnel at Upstate to
provide him with medical care and treatment.
Plaintiff alleges, for example, that on April 8, 2010,
Physician's Assistant (“PA”) Patrick Johnson discontinued his skin allergy medication, A & D Ointment, soap, and stomach medications based upon
his alleged failure to attend a scheduled call out on
FN3
that date.
Complaint (Dkt. No. 1) Statement of
Facts ¶ 1. On June 10, 2010, according to Johnson,
Dr. Adams, a physician assigned to work at Upstate, discontinued all of his prescriptions, including his Provincial inhaler for his COPD as well as
his Neutrogena soap, a fact which he attributes to
Nurses George Waterson and Heath Baker having
told Dr. Adams that according to Johnson those
FN4
medications were not working.
Id. at ¶¶ 2–6.
Plaintiff further alleges that on or about May 8,
2010 PA Johnson discontinued plaintiff's skin ointment, and that from March 2010 to the date of filing of his complaint Nurses Baker, Waterson, and
others continuously denied him medical care and
FN5
treatment for his medical conditions.
Id. at ¶¶
8–11.
FN3. It appears from plaintiff's medical records that the discontinuation on April 8,
2010 was a result of his refusal to come
out of his cell. See Plaintiff's Medical Records (Dkt. No. 43) Entry Dated 4/8/10.
Those records also reflect that plaintiff was
issued Neutrogena Soap, A & D Ointment,
and medication for his stomach two days
later on April 10, 2010. Id. at Entry Dated
4/10/10.
FN4. In a note authored by a registered
nurse on June 12, 2010, it is reported that

plaintiff's prescription medications were
discontinued by a doctor on June 10, 2010
due to plaintiff's refusal to be seen by the
doctor. See Plaintiff's Medical Records
(Dkt. No. 43) Entry Dated 6/12/10. That
notation goes on to indicate that the doctor
would consider the plaintiff's need for
medication once he was seen for a medical
evaluation. Id.
FN5. Plaintiff's medical records contain no
evidence of cessation of plaintiff's skin
ointment on or about May 8, 2010, and in
fact indicate that he was provided Vaseline
for his skin on that date. See Plaintiff's
Medical Records (Dkt. No. 43) Entry
Dated 5/8/10.
II. PROCEDURAL HISTORY
*2 Plaintiff commenced this action on September 9, 2010, and thereafter was granted leave to
FN6
proceed IFP.
Dkt. Nos. 1, 4. Named as defendants in plaintiff's complaint are Dr. Lester Wright,
the former Deputy Commissioner and Director of
Health Services for the DOCCS; David Rock, the
Superintendent at Upstate; Dr. Adams, a medical
doctor engaged to perform medical services at Upstate; Nancy Smith, the Nurse Administrator at the
facility; Patrick Johnson, a PA at Upstate; and Registered Nurses George Waterson and Heath Baker,
all of whom are employed by the DOCCS and assigned to work at Upstate. Id.
FN6. In my order dated December 23,
2010, granting plaintiff's IFP application, I
addressed a potential three strikes concern
and, while finding that Johnson had indeed
accumulated far more than three strikes by
the time his complaint was filed, concluded that his allegations met the
threshold requirement under the Second
Circuit's decision in Chavis v. Chappius,
618 F.3d 162 (2d Cir.2010) for alleging
imminent danger. Order dated December
23, 2010 (Dkt. No. 4) at pp. 8–9. In that
initial order, however, I went on to note

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that plaintiff's IFP status would be revoked
if, as the case progressed, the court concluded that he did not face imminent
danger of serious physical at the time he
commenced this action. Id.
On December 30, 2011, following the completion of discovery, defendants moved for the entry of
summary judgment dismissing plaintiff's complaint.
FN7
Dkt. No. 42. In their motion, defendants request revocation of plaintiff's IFP status based upon
28 U.S.C. § 1915(g). In addition, defendants argue
that 1) plaintiff's Eighth Amendment cause of action lacks merit; 2) defendants are not exposed to
liability damages for actions taken in their official
capacities; 3) plaintiff cannot demonstrate the irreparable harm necessary to obtain permanent injunctive relief; 4) defendants Wright, Rock and
Smith were not personally involved in the constitutional violations alleged; 5) plaintiff has failed to
establish the necessary elements of a retaliation
claim; and 6) in any event, the defendants are entitled to qualified immunity. Id. Responses in opposition to defendants' motion were received from
the plaintiff on January 9, 2012, March 15, 2012,
and March 16, 2012. Dkt. Nos. 45, 51, 52. Defendants' motion, which is now ripe for determination,
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 Fed.R.Civ.P. 72(b).
FN7. Three separate applications by the
plaintiff seeking the issuance of a preliminary injunction were denied by District
Judge David N. Hurd, by decision issued
on February 23, 2012. Dkt. No. 47. None
of those three motions involved medical
treatment rendered to Johnson at Upstate.
Plaintiff has appealed the denial of injunctive relief to the Second Circuit. See Dkt.
No. 48. The pendency of that appeal,
however, does not stand as a barrier to deciding the pending summary judgment motion or revoking plaintiff's IFP status. New

York State Nat'l Org. for Women v. Terry,
886 F.2d 1339, 1350 (1989).
III. DISCUSSION
A. Three Strikes Provision
In their motion defendants invoke 28 U.S.C. §
1915(g), arguing that under that section plaintiff's
litigation history, which includes for greater than
three merit-based dismissals, warrants revocation of
his IFP status.
Section 1915(g), which was enacted as part of
sweeping inmate litigation reform brought about by
adoption of the Prison Litigation Reform Act of
1996 (“PLRA”), Pub.L. No. 104–134, 110 Stat.
1321 (1996), though engendering far less litigation
than some of its PLRA counterparts including, notably, the exhaustion of remedies requirement of 42
U.S.C. § 1997e(a), provides that
[i]n no event shall a prisoner bring a civil action
or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or
more prior occasions, while incarcerated or detained in any facility, brought an action or appeal
in a court of the United States that was dismissed
on the grounds that is frivolous, malicious, or
fails to state a claim upon which relief may be
granted, unless the prisoner is under imminent
danger of serious physical injury.
*3 28 U.S.C. § 1915(g). The manifest intent of
Congress in enacting this “three strikes” provision
was to curb prison inmate abuses and to deter the
filing of multiple, frivolous civil rights suits by
prison inmates.
Tafari v. Hues, 473 F.3d 440,
443–44 (2d Cir.2007); Gill v. Pidlychak, No.
9:02–CV–1460, 2006 WL 3751340, at *2
(N.D.N.Y. Dec. 19, 2006) (Scullin, S.J. & Treece,
M.J.). The prophylactic effect envisioned under
section 1915(g) is accomplished by requiring a prisoner who has had three previous strikes to engage
in the same cost-benefit analysis that other civil litigants must make before deciding whether to com-

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mence suit, accompanied by the filing of the full
fee—that is, to assess whether the result to be
achieved justifies the filing fee expenditure. Tafari,
473 F.3d at 444; Ibrahim v. District of Columbia,
463 F.3d 3, 6 (D.C.Cir.2006). As the Second Circuit has noted, in the context of PLRA amendments
requiring inmates to authorize prison officials to
make deductions from inmate accounts to be applied as partial payments of appellate filing fees for
prisoners granted in forma pauperis status,
[p]rior to the enactment of the in forma pauperis
amendments, inmates suffered no economic disincentive to filing law suits. Indeed, the very
nature of incarceration—prisoners have substantial free time on their hands, their basic living expenses are paid by the state and they are provided
free of charge the essential resources needed to
file actions and appeals, such as paper, pens, envelopes and legal materials—has fostered a “
‘nothing to lose and everything to gain’ “ environment which allows inmates indiscriminately to
file suit at taxpayers' expense.
Nicholas v. Tucker, 114
Cir.1997), cert. denied sub
Miller, 523 U.S. 1126, 118
(internal citations omitted); see
3751340, at *2.

F.3d 17, 20 (2d
nom., Nicholas v.
S.Ct. 1812 (1998)
also Gill, 2006 WL

The question of whether the dismissal of a prior action qualifies as a strike, for purposes of section 1915(g), is a matter of statutory interpretation,
FN8
and as such a question for the court.
Tafari,
473 F.3d at 442–43. In determining whether a dismissal satisfies the failure to state a claim prong of
the statute, implicated in this case, courts have
drawn upon the provisions of Rule 12(b)(6) of the
Federal Rules of Civil Procedure for guidance, particularly in light of the similarity in phrasing utilized in the two provisions. Tafari, 473 F.3d at 442
(citing Andrews v. King, 398 F.3d 1113, 1121 (9th
Cir.2005)).
FN8. The Second Circuit has expressed its
view that the time for determination of
“strikes” is only when the section 1915(g)

issue is ripe for adjudication, and that because of the potentially significant consequences flowing from such a finding, a
court should not, when dismissing an inmate complaint, contemporaneously signal
whether the dismissal should count as a
“strike” for the purposes of that section.
DeLeon v. Doe, 361 F.3d 93, 95 (2d
Cir.2004); see also Snider v. Melindez, 199
F.3d 108, 115 (2d Cir.1999) (“We ... doubt
whether the entry of a strike is properly
considered at the time an action is dismissed”).
B. Application of Section 1915(g)
It appears to be firmly established that prior to
commencing this action plaintiff had accumulated
three or more strikes falling within section 1915(g),
and Johnson seemingly does not dispute this fact.
When asked to list previous lawsuits relating to his
imprisonment in the form utilized to file his complaint, plaintiff noted simply “three strikes”. See
Complaint (Dkt. No. 1) § 5. The fact that Johnson
has accumulated at least three strikes is confirmed
in a report and recommendation authored by Magistrate Judge George H. Lowe, and adopted by Senior
District Judge Lawrence E. Kahn, in 2008. See
Johnson v. Connolly, No. 9:07–CV–0158
(LEK/GHL), 2008 WL 724167 (N.D.N.Y. Mar. 17,
2008). In his report in that action, Judge Lowe
chronicled plaintiff's extensive prior litigation history, which at that point included the filing of fortysix prisoner civil rights actions and, after making
the required analysis, concluded that plaintiff had
acquired three strikes at a minimum, for purposes
of section 1915(g), by the time the complaint in that
FN9
action was filed.
Id. at * 8; see also Johnson v.
Fischer, No. 11–CV–386 (GLS/DRH), 2011 WL
6945706, at *4 (N.D.N.Y. Dec. 22, 2011) (finding
that plaintiff had accumulated three strikes but
could potentially satisfy the imminent danger exception based upon his allegation that he was the
target of enemy gang members and prison officials
did nothing to protect him, resulting in his being assaulted). This is consistent with an earlier determin-

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ation issued by another court in 2005 finding that at
that time, plaintiff had acquired at least five strikes.
See Johnson v. Goord, No. 05–CV–6084 slip op. at
p. 2 (W.D.N.Y., filed Feb. 28, 2005) (Telesca, J.),
and a subsequent finding from that court later in
2005 that at that point plaintiff had acquired at least
eight strikes. See Johnson v. Worley, No.
05–CV–6602, slip op. at p. 2 (W.D.N.Y., filed Nov.
18, 2005) (Siragusa, J.).
FN9. According to publically available records, with the subsequent filing of this action and others, it appears plaintiff has
filed in excess of fifty-three civil rights actions, while incarcerated, not including
federal habeas corpus actions, federal court
appeals, state court actions, or state court
appeals.
*4 I therefore conclude that plaintiff had accumulated well in excess of three strikes, within the
meaning of section 1915(g), by the time this action
was filed.
C. Imminent Danger Exception
As a safety valve, obviously intended to protect
a prison inmate exposed to potential danger from
the harsh consequences of his or her earlier folly,
section 1915(g) provides that a prisoner who is in
“imminent danger of serious physical injury” may
avoid application of the three strikes rule of section
1915(g). See 28 U.S.C. § 1915(g); see also Malik v.
McGinnis, 293 F.3d 559, 562–63 (2d Cir.2002). In
accordance with this exception, an inmate who has
had three prior “strikes” but nonetheless wishes to
commence a new action in forma pauperis must
show that he or she was under imminent danger at
the time of filing; the exception does not provide a
basis to avoid application of the three strikes on the
basis of past harm. Malik, 293 F.3d at 562–63; see
also Chavis v. Chappius, 618 F.3d 162, 169 (2d
Cir.2010). An inmate who claims the benefit of this
exception must also show that the danger faced
rises to the level of exposure to a “serious physical
injury.” 28 U.S.C. § 1915(g). The imminent danger
claimed by the inmate, moreover, must be real, and

not merely speculative or hypothetical. Johnson v.
Barney, No. 04 Civ. 10204, 2005 WL 2173950, at
*1–2 (S.D.N.Y. Sept. 6, 2005) (finding that inmate's allegation of danger at facility he was not
housed at, but may pass through at infrequent occasions in the future, does not establish imminent
danger).
For a three-strikes litigant to qualify for the imminent danger exception, his or her complaint
“must reveal a nexus between the imminent danger
it alleges and the claims it asserts.” Pettus v. Morgenthau, 554 F.3d 293, 298 (2d Cir.2009). When
determining whether the requisite relationship is
present a court must examine “(1) whether the imminent danger of serious physical injury that a
three-strikes litigant alleges is fairly traceable to
unlawful conduct asserted in the complaint and (2)
whether a favorable judicial outcome would redress
that injury.” Id. at 299 (emphasis in original).
The term “serious physical injury,” as utilized
in section 1915(g), is nowhere concretely defined,
although it has been construed by various courts as
including a “disease that could result in serious
harm or even death [.]” Ibrahim, 463 F.3d at 7. In
deciding whether to invoke the exception, a court
must examine the available pleadings, construed in
a light most favorable to the plaintiff, to determine
whether the plaintiff has alleged a serious physical
injury. McAlphin v. Toney, 281 F.3d 709, 710 (8th
Cir.2002). Conditions which have been held to rise
to a sufficient threshold level include denial of
treatment for infected gums, resulting in damages
of infection, McAlphin, 281 F.3d at 710; denial of
adequate treatment for Hepatitis C, a “chronic and
potentially fatal disease,” Ibrahim, 463 F.3d at 6–7;
and patterns of harassment from corrections officers, heart palpitations, chest pains and labored
breathing, Ciarpaglini v. Saini, 352 F.3d 328,
330–31 (7th Cir.2003) (finding upon reaching the
merits, however, that plaintiff's complaint did not
state an Eighth Amendment claim).
*5 Plaintiff's eligibility for IFP status turns on
whether he can establish that he faced imminent

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danger of serious physical injury on September 9,
2010, when this action was filed. Any potential
claim of imminent danger in this case is belied by
plaintiff's complaint as well as other portions of the
record now before the court. A review of plaintiff's
medical records, for example, reveals that the principal cause of the denial of medical care and medications of which he complains has been his refusal to
be seen by a physician and to comply with the protocols associated with dispensing those medications, requiring him to recite his name and DIN
number before receiving medications while in SHU
confinement. See Smith Decl. ¶¶ 6–13; see also
Plaintiff's Medical Records (Dkt. No. 43); Scott
Decl. (Dkt. No. 42–2) Exh. E., Transcript of
Plaintiff's Deposition of May 6, 2011 at pp. 35–36,
44–45. This same conclusion was reached by another court in connection with a challenge brought by
the plaintiff pursuant to New York Civil Practice
Law & Rules (“CPLR”) Article 78, with Acting Supreme Court Justice Michael Melkonian observing
the following regarding Johnson's conduct:
It is noteworthy ... that petitioner fails to mention
that the medicine has been held back in part because of petitioner's refusal to be examined by a
facility doctor. Petitioner's refusal to comply with
minor formalities that he believes are unnecessary demonstrates that petitioners [sic] medical
conditions and his need for the medications are
not as important to petitioner as his desire to assert himself and establish control over how the
respondents do their work.
Scott Decl. (Dkt. No. 42–2) Exh. D, slip op. at
p. 3. Indeed, during his deposition Johnson essentially acknowledged that he himself was the cause
of any deprivation of medication, and that were he
truly at risk because of that deprivation he held the
key to recurring treatment and medication, needing
only comply with the required protocols, testifying
as follows:
Q. Mr. Johnson, who is the person who's being
allegedly deprived of anything as a result of your
behavior?

A. Johnson.
Q. Thank you.
A. Ask me do I care.
Q. Okay. It's no sweat off your back then?
A. As long as I can put a lawsuit in against it, no,
it's no sweat off my back....
Scott Decl. (Dkt. No. 42–2) Exh. E, at p. 62.
A careful review of plaintiff's medical records
covering the period leading up to and including
when this action was filed, medical personnel at
Upstate attempted, on literally a daily basis, to
provide medication and treatment to the plaintiff in
his SHU cell. Plaintiff's medical records are replete
with notations showing that it was as a result of his
actions, including his refusal to comply with prison
policies, that he was not provided with medications
and treatment. On November 8, 2010, for example,
a medical provider (whose signature is illegible)
noted the following on plaintiff's ambulatory health
record:
*6 Upon arrival to cell, asked inmate his name
DIN. Inmate refused to provide and responded “you know my name
DIN you Homo.”
Conversation terminated and inmate stated
“you'll be named in the lawsuit” and continued to
shout profanities and insults while Nurse was on
gallery. Not provided.
See Plaintiff's Medical Records. (Dkt. No. 43)
Entry Dated 11/8/10. On many other dates plaintiff
hurled obscenities or issue threats toward medical
staff members at the facility. See, e.g., Plaintiff's
Medical Records (Dkt. No. 43) Entry Dated 5/10/10
(“verbally abusive”); 5/16/10 (“verbally inappropriate”); 5/22/10 (“I/M became verbally abusive”);
5/29/10
(“hollering
obscenities”);
6/22/10
(“swearing, verbal harassment to staff”); 6/26/10
(“verbally inappropriate”); 6/28/10 (“verbally abusive”); 7/3/10 (“verbally inappropriate”); 7/4/10
(“verbally harassing staff”, “swearing”); 7/6/10

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(“verbally abusive”); 7/10/10 (“verbally abusive”);
7/11/10
(“verbally
inappropriate”);
7/17/12
(“swearing at nurse”); 7/18/12 (“swearing at
nurse”); 7/21/10 (“verbally abusive toward staff”);
7/22/12 (“inappropriate”); 7/23/12 (“swearing @
staff, threatening, [with] physical harm”); 7/24/12
(“vulgar obscene language”); 7/28/10 (“threatening
to sexual violate [nurse]”); 7/27/12 (“swearing and
threatening nurse”); 7/31/10 (stating to nurse “I
want to stick my finger up your ass you little slut”);
8/1/10 (“inappropriate”); 8/2/10 (“inappropriate
verbal harassment”); 8/3/10 (“verbal harassment towards staff”); 8/4/12 (“verbally abusive swearing at
staff”); 8/6/12 (“inappropriate behavior”); 8/9/12
(“inappropriate @ cell door, swearing at staff
threatening violence”); 8/12/10 (“swearing at
nurse”); 8/18/10 (stating to nurse “suck my dick”);
8/26/10 (stating to nurse that he would come out of
cell “if you suck my dick”); 9/7/10 (“verbally abusive”); 9/8/10 (“swearing verbally inappropriate”);
9/16/10 (“standing @ cell door yelling”); 9/25/10
(stating to nurse “get the f_ck away from my window”); 9/26/10 (stating to nurse “I hate you mother
fu_ker”); 9/29/10 (“swearing @ staff”); 10/10/10
(“swearing @ staff, inappropriate behavior”);
(10/13/10 “verbally inappropriate”); 10/21/10
(referring to nurse as an “alcoholic”); 10/26/10
(“verbally inappropriate”); 10/30/10 (“swearing at
nurse”); 11/1/10 (“swearing at staff”); 11/2/10
(“swearing at staff”); 11/3/10 (“inappropriate behavior”); 11/7/10 (“vulgar and inappropriate language
toward nurse”); 11/14/10 (“aggressive behavior,
scream extreme vulgarity—unable to redirect behavior”); 11/21 /10 (“swearing at nurse”); 11/22/12
(“swearing at staff”); 11/24/10 (“inappropriate behavior”); 11/26/10 (“dangerous behavior”);
11/27/10 (“inmate began yelling swearing and
threatening verbally”); 12/1/10 (“noncompliant,
swearing at staff”); 12/10/12 (“swearing @ nurse”);
12/10/12 (“threatening staff [with] violence”);
12/11/12 (“swearing”); 12/24/11 (“swearing @ staff
inappropriate language”); 12/26/12 (“swearing &
name-calling”); 12/28/12 (“swearing at staff”);
12/29/12 (referring to nurse as a “dick sucker”);
1/6/11 (“verbally abusive toward staff”); 1/17/11

(when asked for name and DIN responding “I'll see
you in court mother fucker”); 1/20/11 (“becoming
verbally abusive screaming obscenities and racial/
sexual slurs”); 1/21/11 (“yelling racial and sexual
slurs at RN”); 1/25/12 (“yelling sexual and racial
slurs @ an RN”); 1/25/11 (“vulgar/inappropriate”);
1/30/12 (“vulgar remarks verbalized”).
*7 At the heart of plaintiff's complaint is his
claim that prison officials discontinued his prescription medications. Plaintiff's health records show,
however, that plaintiff's prescription drugs were
discontinued based upon his refusal to be seen by
the prison physician. See Plaintiff's Medical Records (Dkt. No. 43) Entry Dated 6/12/10. On
September 18, 2010—nine days after commencement of this action—plaintiff complained of dry
skin and gas, and was provided with sinus medication as well as A & D ointment. See Plaintiff's
Medical Records. See id. at Entry Dated 9/18/10.
On the following day, plaintiff was provided with
Vaseline for his dry skin and athletes foot cream for
a fungal condition. See id. at Entry Dated 9/19/10.
In sum, a careful review of the record now before the court, even when viewed in a light most favorable to the plaintiff fails to disclose any basis for
concluding at the time this action was filed, he was
exposed to imminent danger of serious physical injury. Plaintiff has therefore failed to demonstrate
his entitlement to this narrow exception to the
PLRA's three-strike statutory provision.
IV. SUMMARY AND RECOMMENDATION
Plaintiff, a persistent litigant in this and other
courts, brings this action to challenge defendants'
failure to provide him with desired medication and
treatment while in SHU confinement at Upstate. A
review of the plaintiff's litigation history reveals
that without dispute, he has incurred three or more
strikes falling within 28 U.S.C. § 1915(g). The record further fails to disclose a basis to conclude that
at the time this action was filed he was in imminent
danger of serious physical injury, even under the
arguably relaxed standard announced by the Second
Circuit in Chavis. A review of plaintiff's litigation

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history and his conduct during the course of this action makes it clear that to the plaintiff, litigation is
a form of recreation of the type which the PLRA's
three strikes provision was intended to curb.
Plaintiff's repeated filing of actions in this and other
courts not only unduly harasses prison officials, but
burdens already over-taxed court resources and
those of the Office of the Attorney General, which
is called upon to defend against such claims.

(N.D.N.Y.)
END OF DOCUMENT

Based upon the foregoing, it is hereby respectfully
RECOMMENDED that plaintiff's in forma
pauperis status be REVOKED, and that he be required to pay the required filing fee within thirty
days of the issuance of an order adopting this report
and recommendation, and that his complaint be dismissed in the event of his failure to pay the statutory $350 filing fee; and it is further hereby
RECOMMENDED, that the substantive portions of defendants' summary judgment motion
(Dkt. No. 42) be held in abeyance, and that in the
event the plaintiff does pay the required filing fee,
that the matter be returned to me for consideration
of the remaining portions of defendants' motion.
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).
*8 It is hereby ORDERED that the clerk of the
court serve a copy of this report and recommendation upon the parties in accordance with this court's
local rules.
N.D.N.Y.,2012.
Johnson v. Adams
Not Reported in F.Supp.2d, 2012 WL 3052957

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Only the Westlaw citation is currently available.
United States District Court,
N.D. New York.
Johnathan JOHNSON, Plaintiff,
v.
William GONZALEZ, et al., Defendants.
No. 9:14–CV–0745 (LEK/CFH).
Signed March 13, 2015.
Jonathan Johnson, Malone, NY, pro se.
Hon. Eric T. Schneiderman, Attorney General for
the, State of New York, David J. Sleight, Assistant
Attorney General, Of Counsel, Albany, NY, for Defendants.
DECISION and ORDER
LAWRENCE E. KAHN, District Judge.
I. INTRODUCTION
*1 This civil rights action comes before the
Court following a Report–Recommendation filed
on February 20, 2015, by United States Magistrate
Judge Christian F. Hummel, pursuant to 28 U.S.C.
§ 636(b) and Local Rule 72.3(d). Dkt. No. 23
(“Report–Recommendation”). Pro se Plaintiff
Johnathan Johnson (“Plaintiff”) timely filed Objections. Dkt. No. 24 (“Objections”). For the following
reasons, the Report–Recommendation is adopted in
its entirety.
II. STANDARD OF REVIEW
When a party makes a timely objection to a Report–Recommendation, it is the duty of the Court to
“make 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). Where, however, an objecting “party
makes only conclusory or general objections, or
simply reiterates his original arguments, the Court
reviews the Report and Recommendation only for
clear error.” Farid v. Bouey, 554 F.Supp.2d 301,

307 (N.D.N.Y.2008) (quoting McAllan v. Von Essen, 517 F.Supp.2d 672, 679 (S.D.N.Y.2007))
(citations omitted); see also Brown v. Peters, No.
95–CV–1641, 1997 WL 599355, at *2–3 (N.D.N.Y.
Sept. 22, 1997). “A [district] judge ... 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).
III. DISCUSSION
Plaintiff first argues that Defendants' Motion
for judgment on the pleadings was improperly filed,
and thus Judge Hummel erred in considering the
merits of the Motion. Objs. ¶¶ 9–12; see also Dkt.
No. 11. Specifically, Plaintiff argues that Defendants waived their “defense of Rule 12(c)” by failing
to include such request for relief in their Answer.
Objs. ¶¶ 9–12. However, Plaintiff is misguided.
Federal Rule of Civil Procedure 12(c) explicitly
provides that “after the pleadings are closed ... a
party may move for judgment on the pleadings.”
FED. R. CIV. P. 12(c) (emphasis added). Rule
12(c) does not require a defendant to move for
judgment on the pleadings in her answer. See id.
Accordingly, Plaintiff's first objection is without
merit.
Plaintiff next objects to Judge Hummel's finding that Plaintiff has failed to state a cognizable
claim under 42 U.S.C. § 1983 for Defendants' refusal to file Plaintiff's grievances and appeals. Objs.
¶¶ 13–20. In support, Plaintiff cites numerous cases
where inmates brought First Amendment claims related to issues with the Inmate Grievance Program
(“IGP”). See id. However, the cases on which
Plaintiff relies all involve First Amendment retaliation claims. See Gayle v. Gonyea, 313 F.3d 677
(2d Cir.2002); Graham v. Henderson, 89 F.3d 75
(2d Cir.1996); Scott v. Coughlin, 344 F.3d 282 (2d
Cir.2003); Morales v. Mackalm, 278 F.3d 126 (2d
Cir.2002). Here, Plaintiff is alleging an entirely different cause of action—denial of access to the
courts. Therefore, these cases cited in support of
Plaintiff's argument are irrelevant.

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*2 In further support, Plaintiff cites Govan v.
Campbell, 289 F.Supp.2d 289, 297 (N.D.N.Y.2003)
, in which the Court held that “[p]risoners retain the
constitutional right to petition the government for
the redress of grievances.” (citing Overton v. Bazzetta, 539 U.S. 126, 137 (2003)). However, a careful
reading of Overton reveals that the Supreme Court
was referring to “grievances” only in a broad sense;
the Court was not referring to the Inmate
“Grievance” Program. Id. at 137. Moreover, it is
well-settled in the Second Circuit that allegations
that prison officials failed to comply with the IGP
do not state a viable claim under § 1983. See Alvarado v. Westchester Cnty., 22 F.Supp.3d 208, 214
(S.D.N.Y.2014) (“Notwithstanding the First
Amendment's guarantee of the right to petition the
government for redress, ‘inmate grievance programs created by state law are not required by the
Constitution, and consequently allegations that prison officials violated those procedures [do] not give
rise to a cognizable [Section] 1983 claim.’ “
(quoting Shell v. Brzezniak, 365 F.Supp.2d 362,
369–70 (W.D.N.Y.2005)); see also Mimms v. Carr,
No. 09–CV–5740, 2011 WL 2360059, at *10
(E.D.N.Y. June 9, 2011) (“The First Amendment is
not implicated ... where prison officials deny an inmate access to grievance procedures.”). Accordingly, Plaintiffs second objection is also without
merit.
Plaintiff's third objection is that Judge Hummel
erroneously combined Plaintiff's allegations concerning filing of his grievances with his separate allegations concerning denial of access to evidence.
Objs. ¶¶ 21–26. However, a careful reading of the
Report–Recommendation reveals that Judge Hummel did not conflate Plaintiff's allegations. Rather,
Judge Hummel considered each allegation as a separate claim of denial of access to the courts. See
Report–Rec. at 7–8. Thus, Plaintiff's third objection
is also without merit.
Finally, Plaintiff argues that his Complaint
should not be dismissed because, even if his § 1983
claims are dismissed, he has also alleged violations

of the New York Constitution. Objs. ¶¶ 27–36.
Plaintiff's argument must be rejected for two reasons. First, even liberally construed, Plaintiff has not
asserted any claims under the New York Constitution in his Complaint. See generally Dkt. No. 4
(“Complaint”). Second, even if Plaintiff's claims
were construed to allege violations of the New
York Constitution, it would not be proper for the
Court to exercise supplemental jurisdiction in light
of dismissal of all of Plaintiff's federal claims. See
28 U.S.C. § 1367(c)(3). Therefore, dismissal of
Plaintiff s Complaint is warranted.
IV. CONCLUSION
Accordingly, it is hereby:
ORDERED, that the Report–Recommendation
(Dkt. No. 23) is APPROVED and ADOPTED in
its entirety; and it is further
ORDERED, that Defendants' Motion (Dkt.
No. 11) for judgment on the pleadings is GRANTED; and it is further
*3 ORDERED, that Judgment be entered in favor of Defendants on all claims; and it is further
ORDERED, that Plaintiff's Motion (Dkt. No.
19) to compel is DENIED as moot; and it is further
ORDERED, that the Clerk of the Court serve a
copy of this Decision and Order on the parties in
accordance with the Local Rules.
IT IS SO ORDERED.
JONATHAN JOHNSON,
Plaintiff,
v.
WILLIAM GONZALEZ, Deputy Commissioner, DOCCS; SCOTT WOODWARD, Grievance Supervisor, Upstate Correctional Facility; BRANDI
WHITE, Grievance Supervisor, Upstate Correctional Facility; DAVID ROCK, (Former) Superintendent, Upstate Correctional Facility; BRIAN FISC-

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HER, Commissioner, DOCCS; JOSEPH BELLNIER, Deputy Commissioner, DOCCS; GAYLE
HAPONIK, Deputy Commissioner, DOCCS;
DANIEL MARTUSCELLO, Deputy Commissioner, DOCCS; ANTHONY J. ANNUCCI, Acting
Deputy Commissioner, DOCCS; KAREN BELLAMY, Director of Inmate Grievances, DOCCS;
MIKE LIRA, Deputy Superintendent, Upstate Correctional Facility; MAUREEN BOLL, Deputy
Commissioner, DOCCS; DR. CARL KOENIGSMANN, Deputy Commissioner, DOCCS; DONITA
E. MCINTOSH, Deputy Superintendent, Upstate
Correctional Facility; JEFF MCKOY, Deputy Commissioner, DOCCS; GEORGE GLASSANOS,
Deputy Counsel, DOCCS,
Defendants.
REPORT–RECOMMENDATION AND ORDER
FN1
FN1. This matter was referred to the undersigned for report and recommendation
pursuant to 28 U.S.C. § 636(b) and
N.D.N.Y.L.R. 72.3(c).
CHRISTIAN F. HUMMEL, United States Magistrate Judge.
Plaintiff pro se Jonathan Johnson (“Johnson”),
an inmate currently in the custody of the New York
State Department of Correctional and Community
Supervision (“DOCCS”), brings this action pursuant to 42 U.S.C. § 1983 alleging that defendants,
sixteen current and former DOCCS employees and
employees of Upstate Correctional Facility, violated his constitutional rights under the First
Amendment. Compl. (Dkt. No. 4). Presently
pending is defendants' motion for judgment on the
pleadings pursuant to Fed.R.Civ.P. 12(c). Dkts. No.
10, 11. Plaintiff was directed to respond to this motion by September 2, 2014, but has failed to do so.
Dkt. No. 10. For the following reasons, it is recommended that defendants' motion for judgment on
the pleadings be granted.
I. Background

FN2

FN2. Johnson filed a notice to remand and
to impose sanctions on defendants pursuant to Fed.R.Civ.P. 11 (Dkt. No. 6) which
was denied by District Court Judge
Lawrence Kahn because (1) Johnson's
complaint, on its face, asserts a federal
constitutional claim, i.e. the § 1983 claim;
(2) Johnson points to nothing that would
defeat the requisite subject matter jurisdiction (Dkt. No. 21); and (3) defendants' notice of removal was timely. Dkt. No. 21.
The facts are related herein in the light most favorable to Johnson as the non-moving party. See
subsection II(A) infra. At all relevant times, Johnson was confined to Upstate Correctional Facility
(“Upstate”). Compl. ¶ 3.
From 2011 to 2013, Johnson had filed or atFN3
tempted to file a number of inmate grievances
for improper conduct by various staff members at
Upstate. Compl. ¶ 4. Although unclear from the
complaint, Johnson appears to contend he gave
these grievances directly to defendants Woodward
and White, both grievance supervisors at Upstate.
Id. ¶ 5. Johnson alleges that defendants Woodward
and White refused to properly file or process numerous grievances, as well as properly and timely
submit appeals to the Central Office Review Committee (“CORC”) and the Superintendent. Id. ¶¶
3–5. When grievances were properly filed by defendants Woodward and White, Johnson alleges
that they refused to allow him to obtain certain documents and denied him access to witnesses and
videotaped footage relevant to the investigation of
his grievances. Id. ¶ 7.
FN3. The DOCCS “IGP [Inmate Grievance
Program] is a three-step process that requires an inmate to: (1) file a grievance
with the IGRC [Inmate Grievance Resolution Committee]; (2) appeal to the superintendent within four working days of receiving the IGRC's written response; and
(3) appeal to the CORC [Central Office
Review Committee] ... within four working

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days of receipt of the superintendent's written response.” Abney v. McGinnis, 380
F.3d 663, 668 (2d Cir.2004) (internal quotations omitted).
*4 Johnson also alleges that defendants Bellnier, Haponik, Martuscello, Annucci, Bellamy, Boll,
Koenigsmann, McKoy, Gonzales, Glassanos, Lira,
and Mcintosh failed to supervise defendants Woodward and White to ensure the proper handling of his
grievances and appeals. Compl. ¶ 10. Johnson also
alleges that these defendants denied him access to,
or failed to obtain, evidence relevant to his grievances. Id. ¶ 7. Johnson seeks compensatory and
punitive damages. Id. ¶ 11.
II. Discussion

FN4

FN4. All unpublished opinions cited to by
the Court in this Report–Recommendation
are, unless otherwise noted, attached to
this Report–Recommendation.
Johnson contends that defendants Woodward
and White violated his First Amendment right of
access to the courts by failing to submit in the proper manner and follow through with his grievances
and appeals at Upstate. Compl. ¶¶ 3–6. Johnson
also contends that defendants Bellnier, Haponik,
Martuscello, Annucci, Bellamy, Boll, Koenigsmann, McKoy, Gonzales, Glassanos, Lira, and
Mcintosh violated his First Amendment right of access to the courts by failing to supervise defendants
Woodward and White to ensure proper handling of
his grievances and appeals. He also alleges that all
defendants denied him access to certain evidence
relevant to his grievances. Id. ¶ 7, 10. Finally, afFN5
fording Johnson special solicitude,
his complaint may be read to suggest that all named defendants violated his procedural due process rights
by failing to properly investigate his grievances.
Compl. ¶¶ 7, 11.
FN5. When, as here, a party seeks judgment against a pro se litigant, a court must
afford the nonmovant special solicitude.

See Triestman v. Fed. Bureau of Prisons,
470 F.3d 471, 477 (2d Cir.2006). As the
Second Circuit has stated,
[t]here are many cases in which we have
said that a pro se litigant is entitled to
special solicitude, ... that a pro se litigant's submissions must be construed liberally, ... and that such submissions must
be read to raise the strongest arguments
that they suggest .... At the same time,
our cases have also indicated that we
cannot read into pro se submissions
claims that are not consistent with the
pro se litigant's allegations, ... or arguments that the submissions themselves
do not suggest, ... that we should not excuse frivolous or vexatious filings by pro
se litigants ... and that pro se status does
not exempt a party from compliance
with relevant rules of procedural and
substantive law....
Id. (citations and footnote omitted)
(internal quotations omitted); see also
Sealed Plaintiff v. Sealed Defendant # 1,
537 F.3d 185, 191–92 (2d Cir.2008)
(“On occasions too numerous to count,
we have reminded district courts that
‘when [a] plaintiff proceeds pro se, ... a
court is obliged to construe his pleadings
liberally.’ “ (citations omitted)).
As relevant here, defendants request judgment
on the pleadings because (1) defendants' failure to
follow the inmate grievance procedures does not
give rise to a cognizable claim against defendants
under § 1983; and (2) there are no factual allegations in the complaint against defendant Fischer.
FN6
FN6. Defendants Bellnier, Haponik,
Martuscello, Annucci, Bellamy, Boll,
Koenigsmann, McKoy, Gonzales, Glassanos, Lira, and Mcintosh also argue that
Johnson inadequately alleged their person-

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al involvement in the alleged constitutional
violations (Dkt. No. 11) which is a
“prerequisite to an award of damages under § 1983.” Wright v. Smith, 21 F.3d 496,
501 (2d Cir.1994) (quoting Moffitt v. Town
of Brookfield, 950 F.2d 880, 885 (2d
Cir.1991)). Because this Court finds, as
discussed infra, that no constitutional violation has been alleged, it does not reach
that issue.
A. Legal Standard
“The standard for addressing a Rule 12(c) motion for judgment on the pleadings is the same as
that for a Rule 12(b)(6) motion to dismiss for failure to state a claim.” Cleveland v. Caplaw, 448
F.3d 518, 521 (2d Cir.2006) (citing Karedes v. Ackerley Group, Inc., 423 F.3d 107, 113 (2d Cir.2005)
). The Court is required to “accept[ ] as true the
complaint's factual allegations and draw[ ] all inferences in the plaintiff's favor.” Id. However, this
“tenet ... is inapplicable to legal conclusions[; thus,
t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements,
do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (citing Bell Atlantic Corp. v. Twombly,
550 U.S. 554, 555 (2007) (holding that “entitlement
to relief requires more than labels and conclusions,
and a formulaic recitation of the elements of a
cause of action ... [as] courts are not bound to accept as true a legal conclusion couched as a factual
allegation.”)).
To defeat a motion to dismiss or a motion for
judgment on the pleadings, a claim must include
“facial plausibility ... that allows the court to draw
the reasonable inference that the defendant is liable
for the misconduct alleged.” Iqbal, 556 U.S. at
678 (citing Twombly, 550 U.S. at 556 (explaining
that the plausibility test “does not impose a probability requirement ... it simply calls for enough fact
to raise a reasonable expectation that discovery will
reveal evidence of illegal [conduct] .”)); see also
Arar v. Ashcroft, 585 F.3d 559, 569 (2d Cir.2009)
(holding that, “[o]n a motion to dismiss, courts re-

quire enough facts to state a claim to relief that is
plausible ....”) (citations omitted).
*5 Still, “ Federal Rule of Civil Procedure
8(a)(2) requires only ‘a short and plain statement of
the claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of
what the ... claim is and the grounds upon which it
rests.’ “ Twombly, 550 U.S. at 555 (citations omitted). While a complaint attacked under the standard
set forth in Rule 12(b)(6) does not require detailed
factual allegations, “a plaintiffs obligation to
provide the ‘grounds' of his ‘entitlement to relief
requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of
action will not do.” Id . (citations omitted).
B. Analysis
1. First Amendment Access to the Courts
Johnson contends that defendants Woodward
and White denied him his right of access to the
courts under the First Amendment by interfering
with his right to file grievances and appeals and
denying him access to certain relevant evidence.
Johnson also claims that defendants Bellnier,
Haponik, Martuscello, Annucci, Bellamy, Boll,
Koenigsmann, McKoy, Gonzales, Glassanos, Lira,
and Mcintosh violated his right of access to the
courts based upon their failure to supervise and ensure that defendants Woodward and White properly
handled grievances and appeals. Id. ¶ 10.
The prisoner's right of access to the court system has been anchored by the United States Supreme Court in a variety of sources including “the
Article IV Privileges and Immunities Clause, the
First Amendment Petition Clause, the Fifth Amendment Due Process Clause, and the Fourteenth
Amendment Equal Protection, and Due Process
Clauses.” Christopher v. Harbury, 536 U.S. 403,
414–15 & n. 12 (2002); see Lewis v. Casey, 518
U.S. 343, 346 (1996). However, because the IGPs
are created under state law, and, thus, not required
by the Constitution, allegations against prison officials for violation of, or interference with, those
procedures cannot give rise to a cognizable claim

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under § 1983. Alvarado v. Westchester Cnty., 22
F.Supp.3d 208, 214 (S.D.N.Y.2014) (quoting Shell
v. Brzezniak, 365 F.Supp.2d 362, 369–70
(W.D.N.Y.2005)). It has also been established that
the “First Amendment is not implicated ... where
prison officials deny an inmate access to grievance
procedures.” Mimms v. Carr, No. 13–CV–2515
(VB), 2011 WL 2360059, at *10 (E.D.N.Y. June 9,
2011); see also Brown v. Graham, 470 F. App'x 11,
13 (2d Cir.2012) (holding that a prisoner litigant's
claim that he has a “federally-protected liberty interest in the state's compliance with its own prison
FN7
grievance procedures is meritless.”).
FN7. Under the PLRA, a plaintiff whose
access to the grievance process has been
hindered by actions of prison officials is
excused from the exhaustion requirement
and can file suit without having completed
that process. Hemphill v. New York, 380
F.3d 680, 686–92 (2d Cir.2004). Thus, an
inmate who is denied access to an IGP may
directly commence an action to seek redress for the alleged constitutional violations.
Johnson seeks relief based upon a denial of his
right of access to the courts by the defendants' failure to properly submit and timely follow through
with his grievance complaints and appeals made
while at Upstate. Compl. ¶ 5. Additionally, Johnson
alleges that when these complaints were properly
filed, defendants Woodward and White did not allow him to obtain any documentary evidence or
videotaped footage. Id. ¶ 7. It is clear, as discussed
supra, defendants Woodward and White's apparent
refusal or subsequent failure to file, provide evidence for, or follow through with the processing of
grievances or appeals does not create a claim under
§ 1983 as there is no constitutional right to access
to an inmate grievance program. See Brzezniak, 365
F.Supp.2d at 370. Similarly, the remaining defendants' failure to properly supervise the filing or appeal of these grievances does not amount to a constitutional violation as there is no underlying denial

of access to the courts. Id.
*6 Insofar as Johnson's complaint may suggest
that any of the named defendants failed to properly
investigate grievances or instances of wrongdoing
against him (Compl.¶¶ 7, 11) in violation of the
Due Process Clause, the Court notes that inmates
do not have a due process right to a thorough investigation of grievances. See Torres v. Mazzurca,
246 F.Supp.2d 334, 341–42 (S.D.N.Y.2003).
Accordingly, it is recommended that defendants' motion on this ground be granted.
C. Failure to State a Claim Against Defendant
Fischer
The standard set forth in Twombly and affirmed
in Iqbal requires more than mere conclusory statements; rather, it demands sufficient factual allegations against a defendant to reasonably lead to the
discovery of illegal conduct. Iqbal, 556 U.S. at 678;
Twombly, 550 U.S. at 555–56. “It is well-settled
that ‘where the complaint names a defendant in the
caption but contains no allegations indicating how
the defendant violated the law or injured the
plaintiff, a motion to dismiss the complaint in regard to that defendant should be granted.’ “ Dove v.
Fordham Univ., 56 F.Supp.2d 330, 335
(S.D.N.Y.1999) (quoting Morabito v. Blum, 528
F.Supp. 252, 262 (S.D.N.Y.1981)).
In this case, the verified complaint lists defendant Fischer's name in the caption, but fails to again
name or assert allegations against him. Compl. ¶ 1.
Without any specific factual allegations asserted
against defendant Fischer, he cannot be deemed a
party in this action. See Dove, 56 F.Supp.2d at 335.
Accordingly, it is recommended that defendants' motion on this ground be granted.
III. Motion to Compel
Because the undersigned recommends granting
defendants' motion for judgment on the pleadings
on all grounds against all defendants, it is also recommended that Johnson's motion to compel dis-

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covery (Dkt. No. 19) be dismissed as moot.
IV. Conclusion
For the reasons stated above, it is hereby
1. RECOMMENDED that defendants' motion
for judgment on the pleadings (Dkt.Nos.10, 11)
be GRANTED and that judgment be entered for
all defendants on all claims;
2. RECOMMENDED that plaintiffs motion to
compel discovery (Dkt. No. 19) be DISMISSED
as moot.
Pursuant to 28 U.S.C. § 636(b)(1), the parties
may lodge written objections to the foregoing report. Such objections shall be filed with the Clerk
of the Court. FAILURE TO OBJECT TO THIS
REPORT WITHIN TEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v.
Racette, 984 F.2d 85, 89 (2d Cir.1993); Small v.
Sec'y of HHS, 892 F.2d 15 (2d Cir.1989); 28 U.S.C.
§ 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).
Filed Feb. 20, 2015.
N.D.N.Y.,2015.
Johnson v. Gonzalez
Slip Copy, 2015 WL 1179384 (N.D.N.Y.)
END OF DOCUMENT

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Only the Westlaw citation is currently available.
United States District Court,
S.D. New York.
Jonathan JOHNSON, Plaintiff,
v.
M.A. BARNEY, Prison Guard, Oracz, Sergeant,
Frank J. Tracy, Superintendent, Scullivan, Captain,
Sergio Reyes, Joseph Palermo, Michael Lavender,
and David Lawrence, Defendants.
No. 04 Civ. 10204(LBS).
Dec. 13, 2006.
MEMORANDUM AND ORDER
SAND, J.
*1 Pro se plaintiff Jonathan Johnson brought an
action under 28 U.S.C. § 1983 for violation of his
constitutional rights stemming from an incident in
the Downstate Correctional Facility. In his first
cause of action, plaintiff alleges that he was physicFN1
ally assaulted by several corrections officers
during a search of his person and cell at Downstate
in violation of the Eighth Amendment. In his
second cause of action, plaintiff alleges that defendFN2
ant Captain Daniel Sullivan,
an employee of
Southport Correctional Facility where plaintiff was
later incarcerated, fabricated a report of the investigation into the incident. Before the Court is Sullivan's motion to dismiss the second cause of action
for failure to state a claim upon which relief can be
granted under Rule 12(b)(6) of the Federal Rules of
Civil Procedure.
FN1. Plaintiff alleges that he was assaulted
by corrections officers Barney, Reyes,
Palermo, Lawrence, and Lavender while
Sergeant Oracz watched. With the exception of Lavender, these individual defendants, along with Superintendent Tracy have
filed an answer to the complaint. Lavender
has not been served with the summons and
amended complaint. Plaintiff does not al-

lege that Sullivan was involved in the incident at Downstate.
FN2. Sullivan is erroneously named as
“Scullivan” in the caption.
I
In his complaint, plaintiff alleges that in
December 2003 Captain Sullivan interviewed him
about the alleged assault at Downstate. Plaintiff
claims that Sullivan filed a fabricated investigative
report about the incident, stating in it that plaintiff
“had no idea who his witnesses was” and “that it
was [Johnson's] statement that it was probably not
likely.” (Amended Compl. at 4-5.) Plaintiff claims
that he made no such statements. For the filing of
this falsified report, plaintiff claims that he is entitled to $50,000 in compensatory and punitive
damages.
In his opposition to the motion to dismiss,
plaintiff further asserts that Sullivan, who was assigned to conduct the inmate grievance investigation into the incident, fabricated the report as part
of a conspiracy to cover up the acts of the corrections officers at Downstate. He alleges that Sullivan
“had conspired with the other defendants to violate
plaintiff's civil rights.” (Pl.'s Mem. in Opp'n at 3.)
In addition to the conspiracy allegation, plaintiff
claims that by refusing to interview plaintiff's requested witnesses and filing a fabricated report,
Sullivan deprived plaintiff of valid grievance proceedings, to which he claims he is constitutionally
entitled.
II
When considering a motion to dismiss for failure to state a claim under Rule 12(b)(6), the Court
must accept the allegations in the complaint as true.
Hughes v. Rowe, 449 U.S. 5, 10 (1980). The pleadings of pro se plaintiffs are held “to less stringent
standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520 (1972).
Thus a pro se complaint “should not be dismissed

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(Cite as: 2006 WL 3714442 (S.D.N.Y.))

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.” Hughes, 449 U.S. at 10. Although pro se complaints must be construed liberally, civil rights
complaints “must contain specific allegations of
fact which indicate a deprivation of constitutional
rights; allegations which are nothing more than
broad, simple, and conclusory statements are insufficient to state a claim under § 1983.” Alfardo Motors, Inc. v. Ward, 814 F.2d 883, 887 (2d Cir.1987).
*2 The Second Circuit has held that claims of
conspiracy to violate civil rights under 28 U.S.C. §
1983 or § 1985 are held to a heightened pleading
standard. See Angola v. Civletti, 666 F.2d 1, 4 (2d
Cir.1981) (“Our Court has recognized that certain
claims are so easily made and can precipitate such
protracted proceedings with such disruption of governmental functions that, despite the general rule of
Conley v. Gibson, 355 U.S. 41 (1957), detailed fact
pleading is required to withstand a motion to dismiss. A claim of conspiracy to violate civil rights is
a clear example.”); see also Pollack v. Nash, 58
F.Supp.2d 294, 299-300 (S.D.N.Y.1999). To state a
claim for conspiracy, a plaintiff must plead facts
giving rise to an inference of an agreement or
“meeting of the minds” among two or more persons
to deprive the plaintiff of his constitutional rights.
Romer v. Morganthau, 119 F.Supp.2d 346, 363
(S.D.N.Y.2000) (“Specifically, plaintiff must
provide some factual basis supporting a ‘meeting of
the minds,’ such as that defendants entered into an
agreement, express or tacit, to achieve the unlawful
end; plaintiff must also provide some details of
time and place and the alleged effects of the conspiracy.”) (citations and internal quotation marks
omitted). A plaintiff must also plead, “with at least
some degree of particularity,” overt acts engaged in
by the defendant in furtherance of the conspiracy.
Powell v. Workmen's Compensation Bd., 327 F.2d
131, 137 (2d Cir.1964). Finally, to state a claim for
conspiracy under § 1983 a plaintiff must allege “an
actual deprivation of constitutional rights.” Romer,
119 F.Supp.2d at 363; see also Singer v. Fulton

County Sheriff, 63 F.3d 110, 119 (2d Cir.1995).
III
The complaint fails to allege facts that would
give rise to an inference of any constitutional violation by Sullivan or any conspiracy to violate
plaintiff's federally protected rights. The complaint
merely alleges that Sullivan filed an investigative
report that contained fabricated statements attributed to the plaintiff. (See Amended Compl. at 4-5.)
The complaint does not even allege that Sullivan's
report concluded that plaintiff's version of the incident at Downstate was inaccurate or that the report had an adverse impact on his grievance proceedings. “[T]he filing of a false report does not
give rise to a constitutional violation per se .” Gill
v. Riddick, Civ. No. 9:03-CV-1456, 2005 U.S. Dist.
LEXIS 5394, at *24. Even in the context of disciplinary proceedings, the filing of a misbehavior report containing false charges does not rise to the
level of a constitutional violation as long as due
process in the form of notice and a hearing is
provided. See Freeman v. Rideout, 808 F.2d 949,
950 (2d Cir.1986) (holding that prison inmates do
not have a “constitutionally guaranteed immunity
from being falsely or wrongly accused of conduct
which may result in the deprivation of a protected
liberty interest[ ]”), cert. denied, 485 U.S. 982
(1988). This case does not involve a misbehavior
report, but rather an investigative report as part of
an inmate grievance procedure. Despite plaintiff's
FN3
assertion to the contrary,
inmate grievance proFN4
cedures are not even constitutionally required.
Cancel v. Goord, No. 00 Civ.2042, 2001 U.S. Dist.
LEXIS 3440, at *9-10; see also Justice v.. Coughlin, 941 F.Supp. 1312, 1316 (N.D.N.Y.1996)
(“[M]ere violations of the grievance system do not
violate the Constitution.”). Merely filing a falsified
investigative report in a grievance proceeding does
not rise to the level of a constitutional violation;
plaintiff's complaint fails to state a claim.
FN3. Plaintiff asserts that “[g]rievances
filed through an official grievance procedure are constitutionally protected,” citing

© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.

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Not Reported in F.Supp.2d, 2006 WL 3714442 (S.D.N.Y.)
(Cite as: 2006 WL 3714442 (S.D.N.Y.))

Williams v. Meese, 926 F.2d 994, 998
(10th Cir.1991). (Pl.'s Mem. in Opp'n at 3.)
In Williams v. Meese, however, the Tenth
Circuit held that prison officials could not
retaliate against a prisoner for filing administrative grievances. Id. at 998. The
Tenth Circuit went on to affirm the district
court's dismissal of the claim that the administrative procedures were inadequate
for failure to state a claim. Id. In this case,
plaintiff does not allege that Sullivan's actions are retaliatory in nature.
FN4. Plaintiff's claim, raised only in his
opposition papers, that his First Amendment right to petition the government has
been violated by Sullivan's report is also
unavailing. Even if an inmate's claims are
ignored or otherwise stifled by an official
grievance proceeding, the inmate still has
the right to petition the government directly for redress of his claims. Cancel v.
Goord, No. 00 Civ.2042, 2001 U.S. Dist.
LEXIS 3440, at *10.

Because plaintiff has failed to state a claim of a
constitutional violation against Sullivan, the Court
need not reach the issue of qualified immunity.
IV
For the reasons stated above, defendant Sullivan's motion to dismiss for failure to state a claim
is granted. Plaintiff's second cause of action against
Sullivan is dismissed. The Court will hold a telephonic pretrial conference with all remaining
parties on January 16, 2007 at 10:30 a.m.
SO ORDERED.
S.D.N.Y.,2006.
Johnson v. Barney
Not Reported in F.Supp.2d, 2006 WL 3714442
(S.D.N.Y.)
END OF DOCUMENT

*3 The complaint does not mention conspiracy,
however plaintiff alleges in his opposition papers
that “Captain Sullivan had conspired with the other
defendants to violate plaintiff's civil rights.” (Pl.'s
Mem. in Opp'n at 3.) Even if the Court were to construe this assertion as an amendment to the complaint, it would still be insufficient to survive a motion to dismiss under Rule 12(b)(6). Plaintiff's allegations are too vague and conclusory to make out
a claim of conspiracy under § 1983 or § 1985.
Plaintiff has not alleged any facts from which the
Court could infer an agreement or meeting of the
minds between Sullivan and another person to violate plaintiff's constitutional rights. Nor has plaintiff
alleged any facts that would constitute an overt act
in furtherance of the conspiracy. Finally, plaintiff
does not allege any actual violation of his constitutional rights. Therefore, even if the Court were to
read an assertion of conspiracy into the complaint,
it would also have to be dismissed.

© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.