Elleby v. Martucello et al

Filing 41

MEMORANDUM-DECISION AND ORDER: ORDERS that Magistrate Judge Peebles' Report and Recommendation (Dkt. No. 39 ) is ADOPTED in its entirety. ORDERS that Defendants' motion for to dismiss (Dkt. No. 25 ) is GRANTED. ORDERS that Plaintif f's complaint (Dkt. No. 1) is DISMISSED with leave to replead, except as to his request for prospective injunctive relief, within THIRTY (30) DAYS of this Memorandum-Decision and Order. ORDERS that, if Plaintiff fails to file an amended complai nt within thirty (30) days of the filing of this Memorandum-Decision and Order, the Clerk of the Court is directed to enter judgment in Defendants' favor and close this case, without further order from the Court. Signed by U.S. District Judge Mae A. D'Agostino on 1/29/18. {order served via regular mail on plaintiff}(nas, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
TAYE LAMONTE ELLEBY,
Plaintiff,
vs.

9:16-cv-1335
(MAD/DEP)

MARTUCELLO, Superintendent, Coxsackie
Correctional Facility; CAPTAIN SHANLEY,
DDS, Coxsackie Correctional Facility; and D.O.C.,
Department of Corrections, New York State,
Defendants.
____________________________________________
APPEARANCES:

OF COUNSEL:

TAYE LAMONTE ELLEBY
14-A-1409
Elmira Correctional Facility
Plaintiff pro se
OFFICE OF THE NEW YORK
STATE ATTORNEY GENERAL
The Capitol
Albany, New York 12224
Attorneys for Defendants

HELENA LYNCH, AAG

Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
Pro se Plaintiff Taye Lamonte Elleby, an inmate in the custody of the New York State
Department of Corrections and Community Supervision, commenced this civil rights action
pursuant to 42 U.S.C. § 1983 on November 8, 2016, asserting claims arising out of his
confinement at Coxsackie Correctional Facility ("Coxsackie C.F."). See Dkt. No. 1.

On June 15, 2017, Defendants filed a Motion to Dismiss for Failure to State a Claim
asserting Plaintiff has not alleged an actual injury, Defendants are immune from this ligation, and
injunctive relief is barred by the Eleventh Amendment. See Dkt. No. 25 at 1–3. Magistrate Judge
Peebles issued a Report and Recommendation dated October 20, 2017, recommending the Court
grant Defendants' motion and dismiss Plaintiff's complaint with leave to amend, excluding,
however, Plaintiff's claim for injunctive relief. See Dkt. No. 39 at 13. Currently before the Court
are Plaintiff's objections to Magistrate Judge Peebles' Report and Recommendation.
II. BACKGROUND
Since neither party objected to Magistrate Judge Peebles' recitation of the relevant
background facts, and because it is consistent with the record, the Court adopts the factual
background set forth in Magistrate Judge Peebles' Order and Report-Recommendation. See Dkt.
No. 36 at 9-10
III. DISCUSSION
A.

Standard
When specific objections to a magistrate judge's report-recommendation and order are

made, 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). "General or conclusory objections or objections which merely recite the same
arguments presented to the magistrate judge, are reviewed for clear error." O'Diah v. Mawhir,
No. 9:08-CV-322, 2011 WL 933846, *1 (N.D.N.Y. Mar. 16, 2011) (citing Farid v. Bouey, 554 F.
Supp. 2d 301, 306 n.2 (N.D.N.Y. 2008)) (other citation omitted). Upon 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). A litigant's failure to file objections to a magistrate
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judge's report and recommendation, even when that litigant is proceeding pro se, waives any
challenge to the report on appeal. See Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003) (holding
that, "[a]s a rule, a party's failure to object to any purported error or omission in a magistrate
judge's report waives further judicial review of the point") (citation omitted).

A motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure tests the legal sufficiency of the party's claim for relief. See Patane v.
Clark, 508 F.3d 106, 111-12 (2d Cir. 2007) (citation omitted). In considering the legal
sufficiency, a court must accept as true all well-pleaded facts in the pleading and draw all
reasonable inferences in the pleader's favor. See ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493
F.3d 87, 98 (2d Cir. 2007) (citation omitted). This presumption of truth, however, does not
extend to legal conclusions. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).
Although a court's review of a motion to dismiss is generally limited to the facts presented in the
pleading, the court may consider documents that are "integral" to that pleading, even if they are
neither physically attached to, nor incorporated by reference into, the pleading. See Mangiafico
v. Blumenthal, 471 F.3d 391, 398 (2d Cir. 2006) (quoting Chambers v. Time Warner, Inc., 282
F.3d 147, 152-53 (2d Cir. 2002)).
To survive a motion to dismiss, a party need only plead "a short and plain statement of the
claim," see Fed. R. Civ. P. 8(a)(2), with sufficient factual "heft to 'sho[w] that the pleader is
entitled to relief[,]'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007) (quotation omitted).
Under this standard, the pleading's "[f]actual allegations must be enough to raise a right of relief
above the speculative level," see id. at 555 (citation omitted), and present claims that are
"plausible on [their] face," id. at 570. "The plausibility standard is not akin to a 'probability
requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully."
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Iqbal, 556 U.S. at 678 (citation omitted). "Where a complaint pleads facts that are 'merely
consistent with' a defendant's liability, it 'stops short of the line between possibility and
plausibility of "entitlement to relief."'" Id. (quoting [Twombly, 550 U.S.] at 557, 127 S. Ct.
1955). Ultimately, "when the allegations in a complaint, however true, could not raise a claim of
entitlement to relief," Twombly, 550 U.S. at 558, or where a plaintiff has "not nudged [its] claims
across the line from conceivable to plausible, the[ ] complaint must be dismissed[,]" id. at 570.
"[I]n a pro se case, the court must view the submissions by a more lenient standard than
that accorded to 'formal pleadings drafted by lawyers.'" Govan v. Campbell, 289 F. Supp. 2d 289,
295 (N.D.N.Y. 2007) (quoting Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 30 L. Ed. 2d
652 (1972)) (other citations omitted). The Second Circuit has opined that the court is obligated to
"make reasonable allowances to protect pro se litigants" from inadvertently forfeiting legal rights
merely because they lack a legal education. Govan v. Campbell, 289 F. Supp. 2d 289, 295
(N.D.N.Y. 2007) (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)).
B.

First Amendment Claim
To successfully pursue a claim alleging denial of access to the courts, the plaintiff must

demonstrate that the defendant's "deliberate and malicious" acts caused the plaintiff "actual
injury." Davis v. Goord, 320 F.3d 346, 351 (2d Cir. 2003) (citations omitted). While actual
injury is often "apparent on the face" of the complaint, "an inmate cannot establish relevant actual
injury simply by establishing that his prison's law library or legal assistance program is subpar in
some theoretical sense." Lewis v. Casey, 518 U.S. 343, 351–52 (1996). To establish an actual
injury, the plaintiff must demonstrate that the defendant "hindered his efforts to pursue a legal
claim." Id. at 351.

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Plaintiff asserts Magistrate Judge Peebles erred by failing to recognize Plaintiff's
prolonged suspension from the law library and library materials as an "actual injury" per se. See
Dkt. No. 40 at 2, 5. While this Court applies a lenient standard to pro se litigants, Plaintiff must
still assert facts demonstrating that he is entitled to relief. Plaintiff has failed to do so. Even
construing Plaintiff's claim liberally, Plaintiff does not assert in any way that Plaintiff had a
"nonfrivolous legal claim" that "ha[s] been frustrated or was being impeded." Lewis, 518 U.S. at
353. Plaintiff merely makes the bald assertion that he has a constitutional right to study the law
free from regulations by Defendants. See Dkt. No. 40 at 2. However, the Supreme Court has
rejected such an assertion, stating "Bounds did not create an abstract, freestanding right to a law
library or legal assistance." Lewis, 518 U.S. at 351.
No where does Plaintiff assert any prejudice suffered as a result of Defendants' conduct.
The mere presence of a pending court case at the time Plaintiff was denied access to the law
library and materials does not constitute an actual injury. Further, Magistrate Judge Peebles
correctly notes that Plaintiff was denied access after filing his claim. Dkt. No. 39 at 10. Plaintiff
was able to file his complaint and timely respond to four separate court orders without said
materials. See id. While Plaintiff possibly could have suffered actual injury by dismissal of his
original complaint, this is not the case. Plaintiff's complaint was dismissed for suing defendants
immune from suit and could not be cured by amendment and providing Plaintiff access to legal
materials would not have altered that result. See Elleby v. Arresting Officers, et al., No. 16-cv3675, Dkt. No. 25 at *6 (S.D.N.Y. filed June 7, 2017). The complaint filed in the Southern
District matter was described as "nearly incomprehensible," was rejected as frivolous, and
dismissed with prejudice. Id. at *2, 6. As such, the Court finds that Magistrate Judge Peebles
correctly determined that this claim should be dismissed.
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Courts should typically grant pro se plaintiffs an opportunity to amend a complaint;
however, "[w]here a proposed amendment would be futile, leave to amend need not be given."
Hill v. Curcione, 657 F.3d 116, 123 (2d Cir. 2011) (citing Advanced Magnetics, Inc. v. Bayfront
Partners, Inc., 106 F.3d 11, 18 (2d Cir. 1997)). Although the Court has serious doubts that
Plaintiff can state a nonfrivolous claim, in light of his pro se status, the Court will grant Plaintiff
leave to amend.
C.

Injunctive Relief
Plaintiff does not assert any objections against Magistrate Judge Peebles' recommendation

to dismiss Plaintiff's claim against DOCCS and to deny his request for injunctive relief against all
Defendants. Having reviewed Magistrate Judge Peebles' recommendation and the applicable law,
the Court finds that Magistrate Judge Peebles correctly determined that the claims should be
dismissed with prejudice.
IV. CONCLUSION
After carefully reviewing the entire record in this matter, the parties' submissions,
Magistrate Judge Peebles' Report and Recommendation and the applicable law, and for the abovestated reasons, the Court hereby
ORDERS that Magistrate Judge Peebles' Report and Recommendation (Dkt. No. 39) is
ADOPTED in its entirety; and the Court further
ORDERS that Defendants' motion for to dismiss (Dkt. No. 25) is GRANTED; and the
Court further
ORDERS that Plaintiff's complaint (Dkt. No. 1) is DISMISSED with leave to replead,
except as to his request for prospective injunctive relief, within THIRTY (30) DAYS of this
Memorandum-Decision and Order; and the Court further
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ORDERS that, if Plaintiff fails to file an amended complaint within thirty (30) days of the
filing of this Memorandum-Decision and Order, the Clerk of the Court is directed to enter
judgment in Defendants' favor and close this case, without further order from the Court; and the
Court further
ORDERS 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: January 29, 2018
Albany, New York

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