Noel v. Moore et al
DECISION AND ORDER: ORDERED, that the Amended Complaint is DISMISSED with prejudice in accordance with 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1) for failure to state a claim. Signed by Senior Judge Lawrence E. Kahn on 2/1/17. (served on plaintiff by regular mail)(alh, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
DAVIDSON NOEL, a/k/a Noel Davidson,
BRIAN MOORE, C.O., et al.,
DECISION AND ORDER
Pro se Plaintiff Davidson Noel, a/k/a Noel Davidson, commenced this civil rights action
in November 2016, asserting claims arising out of his confinement at Riverview Correctional
Facility (“Riverview C.F.”). Dkt. No. 1 (“Complaint”). After review in accordance with 28
U.S.C. §§ 1915(e) and 1915A(b), the Court found that the Complaint was subject to dismissal for
failure to state a claim upon which relief may be granted. Dkt. No. 8 (“December Order”) at 13.
Because Plaintiff’s claims against defendants Moore and Doe based on interference with legal
mail, denial of access to the courts, and failure to properly investigate his grievance, and his
Fourteenth Amendment failure-to-investigate claim against defendant Fiffiled, were also found to
be repetitive and duplicative of Plaintiff’s claims in Noel v. Moore (Noel I), No. 16-CV-996
(N.D.N.Y. filed Aug. 11, 2016), an earlier filed action, those claims were dismissed with
prejudice and without leave to amend, Dec. Order at 13.
Plaintiff was afforded the opportunity to present an amended complaint if he wished to
pursue his retaliation and medical care claims. Id. at 13–14. This Amended Complaint is now
before the Court for review. Dkt. No. 11 (“Amended Complaint”).
Plaintiff’s seventeen-page Amended Complaint is a disjointed and at times repetitive
restatement of the claims asserted in his original Complaint. Am. Compl.1 Original defendants
C.O. Moore, C.O. “John Doe,” and Sgt. Fiffiled are the only defendants named in the Amended
Complaint. Plaintiff seeks an award of $81,000,000 in damages. Id. at 15.
A. Claims Dismissed with Prejudice
In the Amended Complaint, Plaintiff reasserts his claims that a piece of incoming legal
mail from the Court of Claims was tampered with on March 21, 2016, that he was denied access
to the courts as a result, and that Sgt. Fiffiled failed to properly investigate his grievance. Id.
These claims were dismissed with prejudice and without leave to amend upon initial
review of the original Complaint. Dec. Order at 12.3 Moreover, Plaintiff was specifically advised
in the December Order that “[c]laims dismissed with prejudice shall not be included in an
amended complaint.” Id. Because these claims are not properly asserted in Plaintiff’s Amended
Complaint, the Court will not consider them further.
For example, there are no substantial differences between pages ten and twelve, and
pages eleven and thirteen.
Plaintiff mentions in the Amended Complaint two additional incidents of mail
tampering, neither of which involved the defendants in this action. Am. Compl. at 7. The first
incident occurred in July 2010 at Five Points Correctional Facility; the second incident is alleged
to have occurred in April 2014 at Cayuga Correctional Facility. Id.
As noted in the December Order, the original Complaint in this action “represent[ed]
the fourth time [Plaintiff] has submitted these claims to the Court for review.” Dec. Order at 12.
B. Retaliation Claim
In his original Complaint, Plaintiff claimed that C.O. Moore threatened him with physical
harm and denied him “adequate law library access” in retaliation for his having filed a grievance
regarding the incident with his legal mail. Compl. at 8. Plaintiff did not allege that he suffered
any injury as a result of the alleged misconduct, which was described in wholly conclusory terms.
Id. Upon review, this Court concluded that Plaintiff had not alleged facts sufficient to plausibly
suggest that the actions taken by C.O. Moore were sufficiently “adverse” for purposes of a First
Amendment retaliation claim. Dec. Order at 9–10. This claim was therefore dismissed without
prejudice for failure to state a claim. Id. at 13–14.
In his Amended Complaint, Plaintiff restates his retaliation claim against C.O. Moore.
Am. Compl. at 6. Plaintiff describes the adverse action taken against him as follows:
Davidson Noel ha[s] received several threats by Officer Brian Moore
who allegedly yelled at me while he told another officer to kill me
during recreation s[e]cluded area pat frisk unsupervised no cameras
to beating me up break my harm and any verbal threats abused
vulgarity made several comment harm to Davidson Noel promised to
insulting me or any adverse action disrespectful . . . .
Id. Plaintiff also claims that C.O. Moore denied him law library call-outs on more than one
“[V]erbal harassment, or even threats, are generally held not to rise to the level of adverse
action that will support a First Amendment retaliation claim.” Rosales v. Kikendall, 677 F. Supp.
2d 643, 648 (W.D.N.Y. 2010) (citing Cabassa v. Smith, No. 08-CV-480, 2009 WL 1212495,
at *7 (N.D.N.Y. Apr. 30, 2009) (Kahn, J.)). Here, insofar as Plaintiff alleges in his Amended
Complaint that C.O. Moore threatened him with physical harm in retaliation for his having filed
an inmate grievance regarding his legal mail, the Court finds that these allegations do not suffice
to plausibly suggest that “adverse action”—i.e., action that would deter a similarly situated
individual of ordinary firmness from exercising his or her constitutional rights—was taken
against him. See Gill v. Pidlypchak, 389 F.3d 379, 380–81 (2d Cir. 2004) (describing this
standard). The Court has also considered whether the allegations of the Amended Complaint
plausibly suggest that Plaintiff was physically assaulted by another officer at the behest of C.O.
Moore, and concludes that they do not. While not entirely clear, the Court construes Plaintiff’s
allegations as a description of threats made by C.O. Moore, a reading of the Amended Complaint
that is consistent with the absence of an excessive force claim against either C.O. Moore or the
Turning to Plaintiff’s claim that C.O. Moore denied him access to the law library in
retaliation for his grievance filing, the Court finds that this claim is alleged in wholly conclusory
terms. See Am. Compl. at 6 (“Officer Brian Moore for the law library retaliated Davidson Noel
on second occasions denied adequately law library several call out has been destruction adequate
assistance from person who trained in the law . . . .”). In the absence of any supporting facts
regarding this alleged misconduct, the Court concludes that Plaintiff has failed to “nudge [his]
claims across the line from conceivable to plausible.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007). Based upon the foregoing, and with due regard for Plaintiff’s status as a pro se
litigant, the Court concludes that he has not cured the pleading deficiencies identified in the
December Order so as to set forth a retaliation claim against C.O. Moore.
C. Medical Records Claim
In his original Complaint, Plaintiff alleged that he was denied adequate medical
evaluation and treatment during his confinement at Riverview C.F. Compl. at 9. Plaintiff also
appeared to claim that he was denied access to his medical records and that he made a FOIL
request that was improperly denied. Id. None of the named defendants were alleged to have been
personally involved in this alleged misconduct. Upon review, the Court concluded that these
claims were subject to dismissal for failure to state a claim upon which relief may be granted.
Dec. Order at 11.
In his Amended Complaint, Plaintiff states that following the March 2016 incident
involving his legal mail, he suffered mental anguish and experienced “emotional weakness
depression overwhelming fatigue numbness.” Am. Compl. at 4. Plaintiff alleges that in response
to his request to review his medical records, an unidentified member of the medical staff
“destroyed all my copie[s] [to] cover up the incident.” Id. Plaintiff does not allege in his
Amended Complaint that he was denied adequate medical care for his medical conditions, nor
does he name one or more of his medical providers as a defendant.
Upon review, the Court finds that Plaintiff’s allegations regarding the destruction of his
copies of his medical records do not give rise to a claim for the violation of his constitutional
rights cognizable under 42 U.S.C. § 1983. The Supreme Court has held that even intentional
destruction of a prisoner’s property may not be the basis for constitutional claims if sufficient
post-deprivation remedies are available to address the claim. Hudson v. Palmer, 468 U.S. 517,
531–33 (1984) (citing Parratt v. Taylor, 451 U.S. 527, 539, 541 (1981), overruled in part by
Daniels v. Williams, 474 U.S. 327 (1986)). The Second Circuit has recognized that New York
provides “an adequate post-deprivation remedy in the form of, inter alia, a Court of Claims
action.” Jackson v. Burke, 256 F.3d 93, 96 (2d Cir. 2001) (per curiam) (citing Love v. Coughlin,
714 F.2d 207, 208–09 (2d Cir. 1983) (per curiam)).
Accordingly, it is hereby:
ORDERED, that the Amended Complaint is DISMISSED with prejudice in accordance
with 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1) for failure to state a claim; and it is further
ORDERED, that the Clerk of the Court shall serve a copy of this Decision and Order on
Plaintiff in accordance with the Local Rules.
IT IS SO ORDERED.
February 01, 2017
Albany, New York
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