Johnson v. Gagnon et al

Filing 14

MEMORANDUM-DECISION AND ORDER: ORDERS that Magistrate Judge Peebles' February 26, 2015 Report and Recommendation (Dkt. No. 12 ) is ADOPTED in its entirety for the reasons set forth therein. ORDERS that Plaintiff's motion to remand t his action to state court (Dkt. No. 7 ) is DENIED. ORDERS that Defendants' motion for partial dismissal of Plaintiff's complaint (Dkt. No. 2 ) is GRANTED. ORDERS that Plaintiff's claims against Defendants Rock, Bishop, Uhler, Laramay, Bellnier, Haponik, Annucci, Boll, Koenigsmann, McKoy, Clark, and Grant are DISMISSED with leave to replead. Signed by U.S. District Judge Mae A. D'Agostino on 3/19/15. {order served via regular mail on plaintiff}(nas)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
JOHNATHAN JOHNSON,
Plaintiff,

vs.

9:14-CV-916
(MAD/DEP)

BRIAN GAGNON, DANIEL DUMAS, BRIAN
GRANT, BRIAN CLARK, FRANCIS JARVIS,
WENDY SEYMOUR, RICHARD LIEBFRED,
JOHN TATRO, JERRY LARAMAY, REGINAL
BISHOP, DONALD UHLER, DAVID ROCK,
JOSEPH BELLNIER, GAYLE HAPONIK,
ANTHONY ANNUCCI, MAUREEN BOLL,
CARL KOENIGSMANN, JEFF MCKOY, and
AARON BEANE,
Defendants.
____________________________________________
APPEARANCES:
JOHNATHAN JOHNSON
Upstate Correctional Facility
P.O. Box 2001
Malone, New York 12953
Plaintiff pro se
OFFICE OF THE NEW YORK
STATE ATTORNEY GENERAL
Main Place Tower
350 Main Street, Suite 300A
Buffalo, New York 14202
Attorneys for Defendants

DAVID J. SLEIGHT, AAG

Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION

Plaintiff pro se Johnathan Johnson, an inmate in the custody of the New York State
Department of Corrections and Community Supervision ("DOCCS"), brought this action in New
York state court pursuant to 42 U.S.C. § 1983 alleging that Defendants, nineteen DOCCS
employees, violated his constitutional rights under the First and Eighth Amendments. See Dkt.
No. 4. Plaintiff alleges that Defendants deprived him of his constitutional rights by, inter alia,
interfering with his doctor-ordered meals, conducting cell searches, destroying legal court
documents, and physically assaulting him in retaliation for his filing of grievance complaints, as
well as failing to take corrective action to prevent further retaliatory conduct. See id.1 On July
24, 2014, Defendants removed the action to this court. See Dkt. No. 1.
Defendants have moved to dismiss Plaintiff's claims against Defendants Rock, Bishop,
Uhler, Laramay, Bellnier, Haponik, Annucci, Boll, Koenigsmann, McKoy, Clark, and Grant
pursuant to Federal Rule of Civil Procedure 12(b)(6). See Dkt. No. 2. Defendants argue that
dismissal is warranted because Plaintiff has failed to allege that the above-named defendants were
personally involved in a violation of Plaintiff's constitutional rights. See id. Plaintiff opposes the
motion. See Dkt. No. 6. Plaintiff has also moved to remand the action to state court. See Dkt.
No. 7. Defendants oppose remand. See Dkt. No. 10.
In a Report and Recommendation dated February 26, 2015, Magistrate Judge Peebles
recommended that the Court deny Plaintiff's motion to remand. Dkt. No. 12 at 3. Magistrate
Judge Peebles first concluded that Defendants' removal was timely under 28 U.S.C. § 1446(b)
because Defendants Leibfred, Koenigsmann, and McKoy filed the notice of removal within thirty

For a complete summary of the relevant facts and procedural background, the Court
refers to Magistrate Judge Peebles' February 26, 2015 Report and Recommendation. See Dkt. No.
12 at 3-9.
1

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days of being served the summons and complaint. See id. at 9-12. Magistrate Judge Peebles
further determined that removal was proper because all of the Defendants consented to removal
except for Defendant Grant, who has not yet been properly served. See id. at 11-12, 12 n.6.
Magistrate Judge Peebles also found that remand is not mandated by the fact that Plaintiff is
barred from proceeding in federal court in forma pauperis. Id. at 12 n.6.
In addition, Magistrate Judge Peebles recommended that the Court grant Defendants'
partial motion to dismiss. Id. at 3. Magistrate Judge Peebles determined that Plaintiff's complaint
failed to allege facts plausibly suggesting that Defendants Clark and Grant violated Plaintiff's
rights. Id. at 17. Magistrate Judge Peebles additionally determined that Plaintiff failed to allege
facts plausibly suggesting that Defendants Rock, Bishop, Uhler, Laramay, Bellnier, Haponik,
Annucci, Boll, Keonigsmann, and McKoy were personally involved in the alleged violations of
Plaintiff's constitutional rights. See id. at 17-21. Magistrate Judge Peebles recommended that
Plaintiff be granted leave to amend his complaint to address the deficiencies identified in the
Report and Recommendation. Id. at 23.
Plaintiff timely submitted objections to the Report and Recommendation on March 6,
2015. See Dkt. No. 13. Plaintiff's primary objection is that Magistrate Judge Peebles erred in
concluding that Defendant Grant has not been properly served and that his consent was therefore
not required for proper removal. See id. at 3-7. Plaintiff also contends that the allegations in his
original complaint sufficiently state constitutional violations by each defendant and that
amendment is thus unnecessary. See id. at 8.

II. DISCUSSION
A.

Standard of Review
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When a party files specific objections to a magistrate judge's report-recommendation, the
district court makes a "de novo determination of those portions of the report or specified proposed
findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1) (2006).
However, when a party files "[g]eneral or conclusory objections or objections which merely recite
the same arguments [that he presented] to the magistrate judge," the court reviews those
recommendations for clear error. O'Diah v. Mawhir, No. 9:08-CV-322, 2011 WL 933846, *1
(N.D.N.Y. Mar. 16, 2011) (citations and footnote omitted). After the appropriate review, "the
court may accept, reject, or modify, in whole or in part, the findings or recommendations made by
the magistrate judge." 28 U.S.C. § 636(b)(1) (2006).
B.

Motion To Remand
Plaintiff argues that Magistrate Judge Peebles incorrectly determined that Defendant

Grant was not properly served. See Dkt. No. 13 at 3-7. Plaintiff filed a summons and complaint
with the Franklin County Clerk's Office on October 18, 2013. See Dkt. No. 1-1. On December 6,
2013, Plaintiff filed a motion for default judgment against thirteen of the defendants. See Dkt.
No. 1-7. On December 13, 2013, Defendants Grant, Liebfred, Koenigsmann, and McKoy
opposed Plaintiff's motion for default judgment, asserting that they had not been properly served.
See Dkt. No. 1-8.2
In a Decision and Order dated April 21, 2014, Franklin County Supreme Court Justice
John T. Ellis denied Plaintiff's motion for default judgment. See Dkt. No. 1-11. Justice Ellis
determined that Plaintiff's method of service – mailing the summons and complaint to Defendants
at their actual place of business – was defective, and therefore Plaintiff was not entitled to default

The other nine defendants named in Plaintiff's motion for default judgment filed answers
to Plaintiff's complaint on December 5 and 6, 2014, before Plaintiff's motion was filed with the
Court. See Dkt. Nos. 5, 6.
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judgment. See id. at 6-9. Justice Ellis then granted Plaintiff an extension of time to serve the
defendants who had not yet filed answers. Id. at 8. Justice Ellis appears to have mistakenly
omitted reference to Defendant Grant from the Decision and Order. See id. at 6. ("Plaintiff moves
for a default judgment, arguing that named defendant[s] Carl Koenigsman[n], Jeff McKoy, and
Richard Liebfred have failed to timely file an Answer to the Complaint.").
In a Decision and Order dated June 17, 2014, Justice Ellis authorized Plaintiff to use an
alternate method of service. See Dkt. No. 1-13. Specifically, Justice Ellis authorized Plaintiff to
serve the remaining defendants by mailing the summons and complaint via first class mail to each
defendant individually at his place of employment and to the Office of the Attorney General. See
id. at 2.
According to Defendants, Plaintiff served Defendants Liebfred, Koenigsmann, and
McKoy by mail on June 24, 2014. Dkt. No. 1 at 4. Counsel for the defendants except for
Defendant Grant "attempted to determine whether Plaintiff attempted to serve Defendant Grant by
mail at Upstate Correctional Facility. A DOCCS official stated that there is no record of service."
Id. at 4 n.1. Defendant Grant has not appeared in this action.3
In his motion to remand, Plaintiff asserted that he served Defendant Grant on November
4, 2013. Dkt. No. 7 at 5. Plaintiff's motion for default judgment indicated that Plaintiff served
Defendant Grant on November 4, 2013 by mailing the summons and complaint to Defendant
Grant's place of business. See Dkt. No. 1-7 at 4-5. As Justice Ellis explained in his April 21,
2014 Decision and Order, this form of service does not satisfy any of New York's statutory
methods for obtaining personal jurisdiction over individuals. See Dkt. No. 1-11 at 7. Plaintiff

Defense counsel appeared for Defendant Grant in opposition to Plaintiff's motion for
default judgment solely for the limited purpose of contesting the court's personal jurisdiction. See
Dkt. No. 1-8 at 3.
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argues that Justice Ellis did not hold that Plaintiff failed to properly serve Defendant Grant. See
Dkt. No. 7 at 5. However, Justice Ellis's apparent inadvertent omission of Defendant Grant from
the text of the Decision and Order does not change the fact that Plaintiff's November 4, 2013
method of service on Defendant Grant was defective.
Plaintiff argues for the first time in his objections to Magistrate Judge Peebles' Report and
Recommendation that he "re[-]served" Defendant Grant on June 24, 2014. See Dkt. No. 13 at 45. The Court has no basis for concluding that Defendant Grant was properly served on this date.
The summons and complaint to which Plaintiff refers the Court as proof of service on Defendant
Grant is addressed generally to all named defendants. See Dkt. No. 1-14. As the Court discussed
above, Defendants assert that Defendant Grant was not served on this date and that the summons
and complaint Plaintiff refers to were served only on Defendants Liebfred, Koenigsmann, and
McKoy. See Dkt. No. 1 at 4 n.1; Dkt. No. 12 at 12 n. 6. The Court also notes that Plaintiff's
position in his motion to remand was that Plaintiff properly served Defendant Grant on November
4, 2013, with no mention of service on June 24, 2014. See Dkt. No. 7 at 5.
Plaintiff's confusion as to whether his initial service on Defendant Grant was effective is
understandable in light of the omission of Defendant Grant from the April 21, 2014 Decision and
Order. Nonetheless, because Defendant Grant has not yet been properly served, his consent was
not required for removal. See 28 U.S.C. § 1446(b)(2)(A) ("When a civil action is removed solely
under section 1441(a), all defendants who have been properly joined and served must join in or
consent to the removal of the action."). Furthermore, the Court finds that Magistrate Judge
Peebles correctly determined that Defendants properly filed a notice of removal within thirty days
of service upon Defendants Leibfred, Koenigsmann, and McKoy. Additionally, Magistrate Judge
Peebles also correctly determined that Plaintiff's status in regards to proceeding in forma pauperis
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in federal court does not mandate remand. Therefore, the Court denies Plaintiff's motion to
remand this action to state court.
C.

Motion To Dismiss
Plaintiff contends that Magistrate Judge Peebles' Report and Recommendation "failed to

address the personal involvement issues raised therewith [Plaintiff's] opposition [to Defendants'
motion to dismiss]." Dkt. No. 13 at 3. Plaintiff asserts that his objection is directed to Magistrate
Judge Peebles' finding of fact. See id. In ruling on a Rule 12(b)(6) dismissal motion, the court
must "accept all factual allegations as true and draw every reasonable inference from those facts
in the plaintiff's favor." Mayor & City Council of Baltimore v. Citigroup, Inc., 709 F.3d 129, 135
(2d Cir. 2013). "To survive dismissal, a complaint must provide 'enough facts to state a claim to
relief that is plausible on its face.'" Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). "Importantly, the 'plausibility' standard applies only to a complaint's factual allegations.
We give no effect at all to 'legal conclusions couched as factual allegations.'" Id. (quoting Port
Dock & Stone Corp. v. Oldcastle Ne., Inc., 507 F.3d 117, 121 (2d Cir. 2007)). "[W]hen the
plaintiff proceeds pro se, . . . a court is obliged to construe his pleadings liberally, particularly
when they allege civil rights violations." McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir.
2004).
Upon review, the Court finds that Magistrate Judge Peebles correctly applied the Rule
12(b)(6) standards and found that the allegations in Plaintiff's complaint, if true, did not plausibly
allege that Defendants Clark, Grant, Rock, Bishop, Uhler, Laramay, Bellnier, Haponik, Annucci,
Boll, Koenigsmann, and McKoy were personally involved in a deprivation of Plaintiff's
constitutional rights. Plaintiff fails to identify any specific issues or factual allegations he
asserted that Magistrate Judge Peebles overlooked in his analysis of Plaintiff's claims. Moreover,
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having closely reviewed Plaintiff's complaint and opposition to Defendant's motion to dismiss, the
Court concludes that Magistrate Judge Peebles' Report and Recommendation contains a thorough
analysis of all of Plaintiff's factual allegations and arguments in support of his claims.
Based on the foregoing, the Court finds that Magistrate Judge Peebles correctly
determined that the factual allegations in Plaintiff's complaint do not state a plausible claim for
relief against the twelve above-named defendants for the reasons stated in the Report and
Recommendation. The Court also finds that Magistrate Judge Peebles correctly concluded that
Plaintiff should be granted leave to amend his complaint to remedy its factual deficiencies. See
Shomo v. City of New York, 579 F.3d 176, 184 (2d Cir. 2009) (remanding on the basis that a
plaintiff should have been permitted to replead his claims where the plaintiff had failed to
sufficiently allege personal involvement). As such, the Court grants Defendants' motion to
dismiss Plaintiff's claims against Defendants Rock, Bishop, Uhler, Laramay, Bellnier, Haponik,
Annucci, Boll, Koenigsmann, McKoy, Clark, and Grant with leave to replead.

III. CONCLUSION
After carefully reviewing the entire record in this matter, the parties' submissions and the
applicable law, and for the above-stated reasons, the Court hereby
ORDERS that Magistrate Judge Peebles' February 26, 2015 Report and Recommendation
(Dkt. No. 12) is ADOPTED in its entirety for the reasons set forth therein; and the Court further
ORDERS that Plaintiff's motion to remand this action to state court (Dkt. No. 7) is
DENIED; and the Court further
ORDERS that Defendants' motion for partial dismissal of Plaintiff's complaint (Dkt. No.
2) is GRANTED; and the Court further
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ORDERS that Plaintiff's claims against Defendants Rock, Bishop, Uhler, Laramay,
Bellnier, Haponik, Annucci, Boll, Koenigsmann, McKoy, Clark, and Grant are DISMISSED
with leave to replead;4 and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision
and Order on the parties in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: March 19, 2015
Albany, New York

As a result of this Order, should Plaintiff choose not to file an amended complaint,
Plaintiff's remaining claims are those asserted against Defendants Gagnon, Dumas, Jarvis,
Seymour, Liebfred, Tatro, and Beane.
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