Brown v. Cunningham et al
OPINION AND ORDER re: 27 MOTION to Dismiss Amended Complaint, filed by Ann Marie McGrath, Joseph Bellnier, Jeffrey McKoy, Jim Gambino, Robert F. Cunningham, Anthony Annucci. The motion is GRANTED in part and DENIED in part. Defenda nts' motion to dismiss is (i) DENIED as to plaintiff's claim against defendant Cunningham in his individual capacity for nominal or punitive damages related to his allegations of retaliatory transfer from Woodbourne to Franklin, and (ii) GRANTED in all other respects. As noted above (see supra n.2), plaintiff has been released from prison but has not provided the Court with a new address, despite the Court's repeated instruction that it is his obligation to do so and that his case could be dismissed for failing to do so. Accordingly, it is, hereby ORDERED: Plaintiff must submit a change of address form or other letter updating his address by no later than March 31, 2017. Failure to do so will result in dismissal of this case. The Court will schedule an initial conference if and when plaintiff provides a new address. The Clerk is instructed to mail a copy of this Opinion and Order to plaintiff at the address as it appears on the docket. The Court certifies pur suant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 44445 (1962). The Clerk is instructed to terminate the motion. (Doc. #27). SO ORDERED. (Jim Gambino, John Doe/ Jane Doe, Ann Marie McGrath, Jeffrey McKoy, Anthony Annucci and Joseph Bellnier terminated.) (Signed by Judge Vincent L. Briccetti on 2/14/17) (yv)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ROBERT F. CUNNINGHAM, ANTHONY
ANNUCCI, JIM GAMBINO, ANN MARIE
MCGRATH, JOHN DOE/JANE DOE,
JEFFREY MCKOY, JOSEPH BELLNIER,
OPINION AND ORDER
15 CV 5093 (VB)
Plaintiff Reggie Brown, proceeding pro se and in forma pauperis, brings this action under
42 U.S.C. § 1983, alleging defendants violated his constitutional rights by transferring him from
Woodbourne Correctional Facility (“Woodbourne”) to Franklin Correctional Facility
(“Franklin”) and then from Franklin to Greene Correctional Facility (“Greene”) in retaliation for
the plaintiff’s exercise of his First Amendment rights.
Now pending is defendants’ motion to dismiss the amended complaint pursuant to Rules
12(b)(1) and 12(b)(6). (Doc. #27).
For the reasons set forth below, the motion is GRANTED in part and DENIED in part.
This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331.
For purposes of ruling on a motion to dismiss, the Court accepts all factual allegations of
the amended complaint as true, and draws all reasonable inferences in plaintiff’s favor.
On May 23, 2013, plaintiff was granted an “area-of-preference” transfer from Eastern
Correctional Facility to Woodbourne. (Am. Compl. at 7). 1
Plaintiff alleges that while housed at Woodbourne, he “was working, very hard, on
achieving his High School Equivalency Diploma, so he could sign up for the summer of 2015
Bard College program.” (Am. Compl. at 5).
However, beginning shortly after his arrival at Woodbourne, plaintiff became dissatisfied
with the medical treatment he was receiving. He filed several grievances, “numerous letters,”
and, on August 6, 2014, he initiated an Article 78 petition in Supreme Court, Sullivan County,
relating to his medical treatment at Woodbourne (Index No. 001862/2014). (Am. Compl. at 10).
In September 2014, shortly after his Article 78 petition was served, plaintiff’s “housing
officer” told plaintiff he was being transferred to another facility. (Am. Compl. at 11). The
housing officer told plaintiff he did not know why he was being transferred.
Plaintiff then wrote a letter to defendant Cunningham, the Superintendent of
Woodbourne, in which he asked why he was being transferred and explained he did not think it
was justified. In particular, plaintiff allegedly informed Cunningham he had “never requested a
transfer, signed a hub waiver, violated any of the prison rules and regulations, caught a ticket
during his entire stay at Woodbourne, or done anything that would cause him to be transferred to
another facility and lose his area-of-preference transfer.” (Am. Compl. at 11).
By memorandum dated September 30, 2014, Cunningham confirmed plaintiff would be
transferred. In particular, Cunningham wrote, “As discussed, as a result of your dissatisfaction
with your medical treatment at this facility, your public criticism of the medical treatment of all
Because some of the pages of the amended complaint are mis-numbered, all citations to
the amended complaint made herein refer to the ECF page number appearing at the top of the
inmates at Woodbourne Correctional Facility and your overall inability to get along with medical
staff here, you are being transferred to a more suitable facility.” (Am. Compl. Ex. H).
On October 7, 2014, plaintiff was transferred to Franklin.
Plaintiff opposed this decision and sought transfer back to Woodbourne. On October 10,
2014, he filed a grievance to this effect. On October 29, 2014, plaintiff was informed he would
“be submitted for an area-of-preference transfer.” (Am. Compl. Ex. I). Plaintiff was then placed
on a waiting list for transfer back to his area-of-preference.
Plaintiff then sent letters to defendants Anthony Annucci, Ann Marie McGrath, Jim
Gambino, John/Jane Doe, Jeffrey McKoy, and Joseph Bellnier, requesting expedited transfer
back to Woodbourne, but with no success.
Plaintiff initiated this case on June 30, 2015. He alleges after defendants were served
with the complaint, defendant McGrath “had plaintiff transferred” to Greene, “as a form of
punishment.” (Am. Compl. at 14).
According to the New York State Department of Corrections and Community
Supervision website, plaintiff was released to parole on September 8, 2016. 2
Standard of Review
“A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1)
when the district court lacks the statutory or constitutional power to adjudicate it.” Nike, Inc. v.
Already, LLC, 663 F.3d 89, 94 (2d Cir. 2011) (internal quotation marks omitted). “[F]ederal
See http://nysdoccslookup.doccs.ny.gov/GCA00P00/WIQ2/WINQ120. Plaintiff has not
submitted a change of address form or otherwise informed the Court of his new address. The
Court has informed plaintiff at least twice that it is his “obligation to promptly submit a written
notification to the Court if plaintiff’s address changes,” and that “the Court may dismiss the
action” if plaintiff failed to do so. (See Docs. ##6, 24).
courts are courts of limited jurisdiction and lack the power to disregard such limits as have been
imposed by the Constitution or Congress.” Durant, Nichols, Houston, Hodgson, & CorteseCosta, P.C. v. Dupont, 565 F.3d 56, 62 (2d Cir. 2009) (internal quotation marks omitted). The
party invoking the Court’s jurisdiction bears the burden of establishing jurisdiction exists.
Conyers v. Rossides, 558 F.3d 137, 143 (2d Cir. 2009).
In deciding a Rule 12(b)(6) motion, the Court evaluates the sufficiency of the operative
complaint under the “two-pronged approach” articulated by the Supreme Court in Ashcroft
v. Iqbal, 556 U.S. 662, 679 (2009). First, plaintiff’s legal conclusions and “[t]hreadbare recitals
of the elements of a cause of action, supported by mere conclusory statements,” are not entitled
to the assumption of truth and are thus not sufficient to withstand a motion to dismiss. Id. at 678;
Hayden v. Paterson, 594 F.3d 150, 161 (2d Cir. 2010). Second, “[w]hen there are well-pleaded
factual allegations, a court should assume their veracity and then determine whether they
plausibly give rise to an entitlement to relief.” Ashcroft v. Iqbal, 556 U.S. at 679.
To survive a Rule 12(b)(6) motion, the allegations in the complaint must meet a standard
of “plausibility.” Id. at 678; Bell Atl. Corp. v. Twombly, 550 U.S. 544, 564 (2007). A claim is
facially plausible “when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,
556 U.S. at 678. “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.” Id.
The Court must liberally construe submissions of pro se litigants, and interpret them “to
raise the strongest arguments that they suggest.” Triestman v. Fed. Bureau of Prisons, 470 F.3d
471, 474 (2d Cir. 2006) (per curiam) (internal quotation marks and citation omitted). Applying
the pleading rules permissively is particularly appropriate when, as here, a pro se plaintiff alleges
civil rights violations. See Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir.
2008). “Even in a pro se case, however . . . threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.” Chavis v. Chappius, 618 F.3d
162, 170 (2d Cir. 2010) (internal quotation marks and citation omitted). Nor may the Court
“invent factual allegations” plaintiff has not pleaded. Id.
Retaliation Under Section 1983
Defendants argue plaintiff’s amended complaint fails plausibly to allege that plaintiff was
transferred in retaliation for exercising his First Amendment rights.
The Court disagrees with respect to plaintiff’s transfer from Woodbourne to Franklin, but
agrees with respect to plaintiff’s transfer from Franklin to Greene.
To “sustain a First Amendment retaliation claim, a prisoner must demonstrate the
following: (1) that the speech or conduct at issue was protected, (2) that the defendant took
adverse action against the plaintiff, and (3) that there was a causal connection between the
protected speech and the adverse action.” Gill v. Pidlypchak, 389 F.3d 379, 380 (2d Cir. 2004)
(internal quotations omitted).
“But because prisoner retaliation claims are easily fabricated, and accordingly pose a
substantial risk of unwarranted judicial intrusion into matters of general prison administration,
we are careful to require non-conclusory allegations.” Bennett v. Goord, 343 F.3d 133, 137 (2d
Cir. 2003) (internal quotations omitted).
Transfer from Woodbourne to Franklin
Plaintiff alleges defendant Cunningham made the decision to transfer him from
Woodbourne to Franklin in retaliation for having filed grievances and appeals against prison
employees, and for filing an Article 78 petition in state court.
First, such speech is protected under the First Amendment. Graham v. Henderson, 89
F.3d 75, 80 (2d Cir. 1996) (“[R]etaliation against a prisoner for pursuing a grievance violates the
right to petition government for the redress of grievances guaranteed by” the First Amendment
“and is actionable under § 1983.”).
Second, plaintiff alleges the transfer was “adverse” because Woodbourne was his area-ofpreference location, he would no longer be able to participate in certain educational programs or
reentry programs, and because his loved ones would be farther away.
Finally, plaintiff alleges—and provides documentary evidence showing—that one of the
reasons given for the decision to transfer him to Franklin was his “public criticism of the medical
treatment of all inmates at Woodbourne Correctional Facility.” (Am. Compl. Ex. H). Further,
plaintiff alleges he never violated any prison rules, was never the subject of any disciplinary
action, and never did anything else that would have warranted transfer away from his area-ofpreference. These allegations suggest that the reason for the transfer was to retaliate against him.
Thus, he has alleged the necessary causal connection between the exercise of his First
Amendment rights and the transfer. 3
Accordingly, plaintiff has sufficiently alleged Cunningham made the decision to transfer
him from Woodbourne to Franklin in retaliation for the exercise of his First Amendment rights. 4
Defendants argue plaintiff must prove that the retaliatory action would not have been
taken but for the exercise of First Amendment rights. (Defs.’ Br. at 5). However, they cite only
cases deciding motions for summary judgment, not motions to dismiss. At the motion to dismiss
stage, the Court need only evaluate plaintiff’s allegations, not whether he has adduced sufficient
evidence to succeed on his claim.
Plaintiff also asserts claims against “Mr. John/Jane Doe” for “submitting the transfer
referral to Classification & Movement to have plaintiff transferred from Woodbourne.” (Am.
Compl. at 4, 12). This bare-bones allegation cannot survive a motion to dismiss. In particular, it
lacks any specificity regarding whether this individual knew about Cunningham’s statement that
plaintiff was being transferred because he complained about his medical treatment, or what
authority, if any, this John/Jane Doe had over the transfer process.
Transfer from Franklin to Greene
Although not spelled out clearly, plaintiff appears to allege McGrath made the decision to
transfer plaintiff from Franklin to Greene in retaliation for having filed this lawsuit. (Am.
Compl. at 14).
Plaintiff has failed to allege sufficient facts to support this claim.
First, plaintiff states in a conclusory fashion that his transfer to Greene was “a form of
punishment,” but provides no explanation for why that would be. In fact, Greene is much closer
than Franklin to his area-of-preference prison, Woodbourne. Moreover, all three facilities are
medium-security prisons. Accordingly, there are insufficient allegations of “adverse action.”
In addition, plaintiff merely suggests a vague temporal relationship—that he was
transferred some unspecified amount of time after defendants in this case were served with
plaintiff’s complaint. (Am. Compl. at 14). A more specific timeframe is needed to allege
causation. Dawes v. Walker, 239 F.3d 489, 492 (2d Cir. 2001) (“failure to set forth a time frame
for the alleged events . . . precludes inference of a causal relationship”), overruled on other
grounds, Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 (2002).
Accordingly, because plaintiff makes only conclusory statements regarding his transfer
from Franklin to Greene, his retaliation claim against McGrath is dismissed.
Claims for Failing to Correct the Violation
The only other allegations in the amended complaint consist of claims against defendants
Annucci, McGrath, Gambino, John/Jane Doe, McKoy, and Bellnier, for their alleged failure to
“correct the violation by transferring plaintiff back to Woodbourne.” (Am. Compl. at 13).
Plaintiff alleges they “failed to comply with the grievance and CORC decision to send [plaintiff]
back to his area-of-preference hub and facility.” (Id.). He also alleges these defendants are
responsible under a theory of supervisor liability, “for failing to correct a wrong after they had
been made aware of the violation.” (Id.).
Defendants argue these claims should be dismissed for lack of personal involvement.
The Court agrees.
“[I]n order to establish a defendant’s individual liability in a suit brought under § 1983, a
plaintiff must show, inter alia, the defendant’s personal involvement in the alleged constitutional
deprivation.” Grullon v. City of New Haven, 720 F.3d 133, 138 (2d Cir. 2013).
Annucci and Bellnier
Plaintiff alleges Commissioner Annucci and Deputy Commissioner Bellnier forwarded
plaintiffs’ grievance letters to McGrath without taking any action. However, “a supervisor’s
decision to refer a prisoner’s letter to his subordinate for investigation does not constitute
personal involvement.” George v. County of Westchester, 2014 WL 1508612, at *8 (S.D.N.Y.
Apr. 10, 2014) (internal quotations omitted). 5
Accordingly, plaintiff’s claims against Annucci and Bellnier are dismissed.
Gambino and McKoy
Plaintiff alleges Gambino and McKoy failed to respond to his letters. 6 There are no other
allegations regarding either of these defendants. This allegation alone is insufficient to state a
claim: “allegations that an official ignored a prisoner’s letter is not enough to establish personal
involvement.” Atkins v. County of Orange, 251 F. Supp. 2d 1225, 1233 (S.D.N.Y. 2003).
Accordingly, the claims against Gambino and McKoy are dismissed.
Plaintiff will be provided with copies of all unpublished opinions cited in this decision.
See Lebron v. Sanders, 557 F.3d 76, 79 (2d Cir. 2009).
Plaintiff also alleges he wrote a letter to John/Jane Doe. He provides no detail and does
not state whether this individual wrote back. Again, this is insufficient to survive defendants’
motion to dismiss.
Plaintiff alleges he wrote a letter to McGrath requesting that she correct the violation by
transferring him back to Woodbourne. Plaintiff alleges McGrath nevertheless “refused to
transfer him back” to Woodbourne and that by “refus[ing] to correct the violation,” she
“continue[d] to violate his rights.” (Am. Compl. at 14).
However, plaintiff does not allege that McGrath had the ability to correct the alleged
violation. In fact, the documents plaintiff attached to his complaint show McGrath knew
plaintiff’s area of preference transfer had been approved, but that he could not be transferred
immediately because there was no space available. 7 Specifically, in four separate response
letters dated February 19, 2015, March 4, 2015, April 15, 2015, and January 11, 2016, McGrath
wrote to plaintiff that his transfer “ha[d] been approved,” and “[m]ovement will be effected as
soon as appropriate space becomes available.” (Am. Compl. Exs. J-M).
As a result, McGrath cannot be said to be personally liable for the failure to transfer
plaintiff back to Woodbourne because the ability to do so was out of her hands. See Hernandez
v. Goord, 2013 WL 2355448, at *8 (S.D.N.Y. May 29, 2013).
Accordingly, the claims for failure to correct the violation against defendants Annucci,
Gambino, McGrath, Doe, McKoy, and Bellnier are dismissed.
Defendants argue Cunningham is entitled to qualified immunity because “the facts
alleged do not plausibly establish that [he] violated the Constitution by transferring plaintiff in
retaliation for exercising his First Amendment rights.” (Defs.’ Br. at 13).
“In considering a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6),
a district court may consider . . . documents attached to the complaint as exhibits.” DiFolco v.
MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010).
The Court disagrees.
“The issues on qualified immunity are: (1) whether plaintiff has shown facts making out
violation of a constitutional right; (2) if so, whether that right was clearly established; and (3)
even if the right was clearly established, whether it was objectively reasonable for the officer to
believe the conduct at issue was lawful.” Gonzalez v. City of Schenectady, 728 F.3d 149, 154
(2d Cir. 2013) (internal quotations omitted).
As discussed above, Cunningham wrote that one of the reasons plaintiff was being
transferred from Woodbourne to Franklin was because he had publically complained about the
medical treatment of all inmates at Woodbourne. This implicates a First Amendment right,
which was clearly established at the time, and it was not on its face reasonable for Cunningham
to believe he could lawfully transfer plaintiff for exercising that right.
Limitations on Defendant’s Remaining Claim Against Cunningham
As discussed, the only claim that survives defendants’ motion to dismiss is the First
Amendment retaliation claim against defendant Cunningham. However, there are several
significant limitations on that claim.
First, the Eleventh Amendment grants state officials acting in their official capacity
immunity against suit for monetary damages. Severino v. Negron, 996 F.2d 1439, 1441 (2d Cir.
1993). Therefore, all monetary damages claims against defendant Cunningham in his official
capacity are dismissed.
Second, because defendant has recently been released from custody, his injunctive relief
claim—namely, that he be transferred back to Woodbourne—is dismissed as moot. See Douglas
v. Hollins, 160 F. App’x 55, 56 (2d Cir. 2005) (summary order).
Finally, “[n]o Federal action may be brought by a prisoner confined in a . . . correctional
facility, for mental or emotional injury suffered while in custody without a prior showing of
physical injury or the commission of a sexual act.” 42 U.S.C. § 1997e(e). Here, plaintiff does
not allege physical or sexual abuse. As a result, any claims for damages associated with mental
or emotional injury are dismissed.
However, although 42 U.S.C. § 1997e(e) bars claims for mental or emotional injury, it
“does not limit the availability of nominal damages for the violation of a constitutional right or of
punitive damages.” Thompson v. Carter, 284 F.3d 411, 418 (2d Cir. 2002). Thus, plaintiff’s
claims for nominal (i.e., One Dollar) or punitive damages for violation of his constitutional rights
may proceed, at least for now. This ruling is without prejudice to Cunningham’s moving for
summary judgment at the appropriate time.
Accordingly, only plaintiff’s claim against defendant Cunningham in his individual
capacity for nominal or punitive damages related to plaintiff’s allegations of retaliatory transfer
from Woodbourne to Franklin may go forward.
Leave to Amend
Rule 15(a)(2) instructs that courts “should freely give leave” to amend a complaint “when
justice so requires.” Liberal application of Rule 15(a) is warranted with respect to pro se
litigants who “should be afforded every reasonable opportunity to demonstrate that [they have] a
valid claim.” Matima v. Celli, 228 F.3d 68, 81 (2d Cir. 2000). District courts “should not
dismiss [pro se complaints] without granting leave to amend at least once when a liberal reading
of the complaint gives any indication that a valid claim might be stated.” Cuoco v. Moritsugu,
222 F.3d 99, 112 (2d Cir. 2000) (internal quotation omitted).
However, leave to amend may “properly be denied for . . . futility of amendment.”
Ruotolo v. City of New York, 514 F.3d 184, 191 (2d Cir. 2008) (quoting Foman v. Davis, 371
U.S. 178, 182 (1962)). This is true even when plaintiff is proceeding pro se. See Martin v.
Dickson, 100 F. App’x 14, 16 (2d Cir. 2004) (summary order).
Here, plaintiff has already been given an opportunity to amend. In particular, after
defendants moved to dismiss plaintiff’s original complaint, plaintiff requested leave to amend.
(Docs. ##16, 18). By Order dated December 4, 2015, the Court granted that request. (Doc. #19).
The Court encouraged plaintiff to “review carefully defendants’ motion to dismiss and the
arguments made therein,” and to “include all the factual allegations” that supported his claims.
(Id.). Plaintiff then filed an amended complaint, which is the subject of the instant motion.
Moreover, the central claim in plaintiff’s amended complaint—that he was transferred
from Woodbourne to Franklin in retaliation for the free exercise of his First Amendment rights—
is going forward against the only defendant personally involved in that decision. Plaintiff’s other
allegations were either barred as a matter of law or plainly insufficient to state a claim. As a
result, allowing plaintiff to amend those claims would be futile.
The Court therefore declines to grant plaintiff leave to file a second amended complaint.
Defendants’ motion to dismiss is (i) DENIED as to plaintiff’s claim against defendant
Cunningham in his individual capacity for nominal or punitive damages related to his allegations
of retaliatory transfer from Woodbourne to Franklin, and (ii) GRANTED in all other respects.
As noted above (see supra n.2), plaintiff has been released from prison but has not
provided the Court with a new address, despite the Court’s repeated instruction that it is his
obligation to do so and that his case could be dismissed for failing to do so. Accordingly, it is
hereby ORDERED: Plaintiff must submit a change of address form or other letter updating
his address by no later than March 31, 2017. Failure to do so will result in dismissal of this
case. The Court will schedule an initial conference if and when plaintiff provides a new address.
The Clerk is instructed to mail a copy of this Opinion and Order to plaintiff at the address
as it appears on the docket.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order
would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose
of an appeal. See Coppedge v. United States, 369 U.S. 438, 444–45 (1962).
The Clerk is instructed to terminate the motion. (Doc. #27).
Dated: February 14, 2017
White Plains, NY
Vincent L. Briccetti
United States District Judge
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