Thomas v. O'Maley et al
Filing
57
OPINION & ORDER re: 50 MOTION to Dismiss Plaintiff's Amended Complaint. filed by Howard Hufford, Mr. DeMeo, J. M. Banks, Associate Warden Rodriguez, Ms. Bowe, Mr. W. McBride, Ms. Flowers, Charles E. Samuels, Jr., Joe Norwood , Mr. Pepeki. In light of the foregoing discussion, Defendants' Motion To Dismiss is granted. The Amended Complaint is dismissed without prejudice. Plaintiff may file a Second Amended Complaint within 30 days of the date of this Opinion & Or der correcting the deficiencies outlined above. The Clerk of Court is respectfully directed to terminate the pending Motion, (see Dkt. No. 50), and mail a copy of this Opinion & Order to Plaintiff's address on the docket. (Signed by Judge Kenneth M. Karas on 8/28/2017) (rj)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
BENJAMIN THOMAS,
Plaintiff,
-v-
No. 15-CV-9559 (KMK)
OPINION & ORDER
MR. DeMEO, Case Manager; MR. PEPEKI,
Unit Manager; ASSOCIATE WARDEN
RODRIGUEZ; MS. BOWE, Staff Psychologist;
CHARLES E. SAMUELS, JR., Director; JOE
NORWOOD, Regional Director; HOWARD
HUFFORD, Warden; MS. FLOWERS, Unit
Manager; MR. W. McBRIDE, S.I.S. Technician;
J. M. BANKS, (“DHO”),
Defendants.
Appearances:
Benjamin Thomas
Chicago, IL
Pro Se Plaintiff
Natasha W. Teleanu
Assistant United States Attorney
New York, NY
Counsel for Defendants
KENNETH M. KARAS, District Judge:
Pro se Plaintiff Benjamin Thomas (“Plaintiff”), formerly incarcerated at Otisville Federal
Correctional Institution (“Otisville”), brings this action against nine employees (collectively,
“Defendants”) of the Bureau of Prisons (“BOP”), alleging violations of his First, Fifth, and
Eighth Amendment rights.1 Plaintiff asserts that he was subjected to unconstitutional
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Plaintiff, following his transfer to Beaumont Penitentiary in Texas, has since been
released from prison and presently resides in Chicago, IL.
confinement conditions, was deprived of reasonable protection from his cellmate, was
improperly disciplined for attempting to submit grievances concerning such conditions, and that
a conspiracy among prison officials deprived him of his constitutional rights. (See generally
Am. Compl. (Dkt. No. 17).) Before the Court is Defendants’ Motion To Dismiss Plaintiff’s
Amended Complaint. (See Dkt. No. 50.) For the reasons to follow, the Motion is granted.
I. Background
A. Factual Background
The following allegations are taken from Plaintiff’s Amended Complaint and are
accepted as true for the purposes of resolving the instant Motion.
Plaintiff alleges that on or about February 23, 2013, he approached Otisville Correctional
Counselor Gushue about the possibility of moving his cellmate, Michaels, to an empty cell. (See
Am. Compl. ¶ 16.) Plaintiff contends that Michaels suffered from “mental health and blood
born[e] diseases” and had “unsanitary personal hygiene problems.” (Id.) Plaintiff alleges that
Michaels was a “deranged prisoner who def[e]cate[d] and urinate[d] upon himself while on the
top bunk above [Plaintiff],” and as such, deprived Plaintiff of his ability to sleep. (Id. ¶ 20.)
Plaintiff describes Michaels as an individual who was “known to become violent at any time”
and who was “alleged to have the [AIDS] virus,” which Plaintiff feared he would contract
through transmissions of bodily fluids. (Id.)
Gushue, allegedly without providing any rationale, advised Plaintiff that a new cell for
Michaels could not be provided “without permission from [D]efendant Flowers or someone else
in command.” (Id. ¶ 17.) The following day, Plaintiff inquired with Unit Manager O’Maley as
to the appropriate person that Plaintiff “could talk to about having inmate Michaels move to an
empty cell.” (Id. ¶ 18.) Plaintiff alleges that O’Maley directed Plaintiff to speak with Lieutenant
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Meyers or Gushue and explained that it was not O’Maley’s job to “enforce or instruct another
inmate into keeping his living quarters or his personal self up to another[] [inmate’s] living
conditions [standards].” (Id.) On February 25, 2013, Plaintiff approached Defendant
Correctional Officer Bowe about the possibility of having the staff psychologist direct Plaintiff’s
“Unit Team to move inmate Michaels to a[] single cell assignment.” (Id. ¶ 19.) Plaintiff alleges
that Defendant Bowe stated that she could not discuss other inmates with Plaintiff and that
Plaintiff should “show some compassion” for Michaels. (Id.)
The following day, Plaintiff spoke with Defendant Associate Warden Rodriguez, who
sent him to Defendant Case Manager Repeki, who instructed Plaintiff to comply with Gushue’s
directions or risk “find[ing] himself in special housing.” (Id. ¶¶ 20–23.) On March 1, 2013,
Plaintiff approached Defendant Warden Hufford about his troubles with Michaels and was
instructed again to resolve the problem with the Unit Team. (See id. ¶ 24.) Defendant Hufford is
alleged to have become irritated by Plaintiff’s assertion that the Unit Team and Defendant
Rodriguez were threatening Plaintiff and failing to resolve the issue. (See id.) On March 3,
2013, Plaintiff once again approached Defendants Rodriguez and Repeki and told them that he
was “suffering from physical exhaustion and sleep deprivation from [his] existing
unconstitutional conditions of confinement” and warned that he would “have his family contact
the Justice Department about the gladiator program and unlawful [d]rafting [of] prisoners into
caregiver rolls [sic]” if they did not address his concerns. (Id. ¶ 25.) Defendants Rodriguez and
Repeki allegedly then instructed Plaintiff to “live in the real world of incarceration,” threatening
him again with placement in the Special Housing Unit (“SHU”) and introducing the threat of
relocation “[across] the country to a place he would not appreciate.” (Id. ¶ 26.)
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On March 6, 2013, Plaintiff went to Gushue’s office and requested a “BP-8 Informal
Resolution Complaint Form.” (Id. ¶ 27). Gushue allegedly asked what the form was for, and
upon Plaintiff’s response that he was not required to “explain his reasons,” Gushue “became
enraged towards . . . [P]laintiff’s right to seek administrative process about the incompatibility
between cellmates and the staff’s failure to resolve the issue.” (Id. ¶¶ 27–28.) Gushue, claiming
that he had moved Michaels twice already because of his behavior, subsequently sent Plaintiff to
prison operation Lieutenant Meyers’ office, again threatening Plaintiff with placement in the
SHU. (See id. ¶¶ 28.) Plaintiff appealed to Lieutenant Meyers that “[Plaintiff] was not required
to be a babysitter for unstable convicts, known for their assaultive conduct, who should be in
Springfield or Buckner medical centers.” (Id. ¶ 29.) However, Meyers reiterated the need for
Plaintiff to work it out with the Unit Team or risk placement in SHU and a potential transfer to a
different facility. (See id.)
On March 9, 2013, Plaintiff contends that, “unable to bear [Michaels’] foul smell [any]
more,” he instructed Michaels to use the toilet and take a shower, or “find another cell to live in
before the room had to be secured for count.” (Id. ¶ 30.) At some point that same day, Plaintiff
alleges that Michaels told Unit Manager O’Maley that either himself or Plaintiff had to move
“because their [sic] will be trouble between them.” (Id. ¶ 31.) Consequently, Plaintiff alleges
that on March 9, 2013, he was attacked by Michaels and they fought “for a couple of minutes
before Mr. Michaels surrendered the battle he started.” (Id. ¶ 32.) Plaintiff also alleges that
during the altercation, an unnamed unit officer locked the door and left the scene upon Gushue’s
“suggestion to let things happen.” (Id.) Following the incident, Plaintiff alleges that both he and
Michaels were “escorted to the operation Lieutenant’s Office,” “taken to [the] medical
department for assessment,” and then “taken to special housing for investigation.” (Id. ¶ 33.)
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Plaintiff contends that on March 15, 2013, he met with Defendant Special Investigative
Support (“SIS”) Technician McBride and detailed the “acts and omissions” of Gushue and
Defendants Repeki and Rodriguez, which led to his altercation with Michaels. (Id. ¶ 34.)
Plaintiff alleges that McBride “became extremely hostile” toward Plaintiff and stated that
Plaintiff “made a mistake in maintaining [his] position, and should just take his punishment
without protest.” (Id.) Following their meeting, McBride “wrote a[] conduct report upon
[P]laintiff and charged him with code #201[:] Fighting with another person.” (Id. ¶ 35.) Plaintiff
contends that in an effort to cover up the prohibited conduct of fellow staff members, McBride’s
report omitted “critical facts” favorable to Plaintiff and “used agency investigative regulation
power to exten[d] the (‘24’) hour time limitation in serving the shot on a simple altercation staff
orchestrated [sic].” (Id.) On the following day, Defendant Case Manager DeMeo “conduct[ed] a
‘UDC’ hearing on [McBride’s] incident report . . . and asked whether [P]laintiff wanted to make
a statement about the incident.” (Id. ¶ 36.) At this point, Plaintiff called into question Defendant
DeMeo’s authority to conduct the hearing because DeMeo himself “was a party to the same
incident.” (Id.) Plaintiff alleges that DeMeo then became “hostile” and stated that Plaintiff
would “regret [Plaintiff’s] false claims, and had no business in questioning employees about their
activities.” (Id.)
About a week later, on or about March 26, 2013, Plaintiff was “taken before [D]efendant
Banks for [a] final disciplinary case hearing,” during which Plaintiff detailed “his efforts to avoid
combat” with Michaels and cited “staff direct involvement in this incident” as a mitigating
factor. (Id. ¶ 37.) Ultimately, Defendant Banks imposed a sanction of “[twenty]-seven days loss
of goodtime,” telling Plaintiff that he “[did] not have a ‘right’ to raise any kin[d] of
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self[-]defense claim[] because it indangers [sic] staff safety and their ability to control the prison
environment.” (Id. ¶¶ 38–39.)
In April 2013, Defendant Flowers visited Plaintiff in the SHU to “conduct a unit review
upon [P]laintiff’s status.” (Id. ¶ 40.) Defendant Flowers allegedly told Plaintiff that she had
spoken to eight staff members who “told her about the problems that had been occurring between
Michaels and [Plaintiff]” prior to their altercation, but that any failure to take action on the part
of Gushue and Defendant DeMeo did not matter because Defendant Bowe had “decided that Mr.
Michael[]s needed a caregiver companion, and that they elected . . . [P]laintiff to play that roll
[sic].” (Id.) Plaintiff’s custody score was thereafter raised an additional six points and his
transfer to Beaumont Penitentiary in Texas was initiated because he “had two other physical
altercations within the last thirty[-]six and should have done as instructed when it came to inmate
Michaels due to the fact that [P]laintiff was [a] prisoner with no rights who he cells with.” (Id.)2
Plaintiff protested Flowers’s decision, citing her “arbitrary and capricious actions outside
the disciplinary process” and claiming that Flowers “is not allowed to impose [sanctions]
because [she] was ‘not’ the (‘DHO’) officer” responsible for imposing sanctions on top of those
already imposed by Defendant Banks. (Id. ¶ 41.) Defendant Flowers allegedly told Plaintiff
that, in addition to already having Defendants Rodriguez and Hufford “on board with her
program,” this was the Bureau of Prisons (“BOP”) and she could do what she wanted “on
general principles alone.” (Id.) Plaintiff later contends that he spoke with Defendants Rodriguez
and Hufford about his transfer to Beaumont, claiming that his family should not be punished for
the mistakes of prison officials. (See id. ¶ 42.) Rodriguez “back[ed] [the] staff decisions in this
Plaintiff’s Amended Complaint does not specify what the “last thirty[-]six” is
referencing (i.e. days, weeks, months).
2
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matter” and cited Plaintiff’s failure to work with the unit team as support for Plaintiff’s transfer.
(Id. ¶ 43.)
In May 2013, Plaintiff alleges he was “forced to go on a hunger strike to make
[D]efendant Flowers and Gushue [] locate a previously filed informal resolution BP-8 Complaint
Form and to issue both a Tort Claim Form and BP-10 appeal form.” (Id. ¶ 44.) Plaintiff
contends that Gushue and Defendants Flowers, DeMeo, Repeki, and McBride “could not justify
their intentional conduct and . . . imposition of unconstitutional con[]finement,” and, as such,
were “attempting to ha[]rass, obstruct, delay, and intimidate [Plaintiff] to drop his complaints.”
(Id.) Plaintiff also alleges that around that time, he was “coerced” by “staff from the Health
Services Department” into agreeing not to receive medical care “in segregation while pending a
transfer” and to “waive his medical care rights” while being “placed in transient [sic] to another
facility.” (Id. ¶ 45.)
Plaintiff lastly alleges that, during the course of his confinement and through the date of
his Amended Complaint, Defendants Samuels, Norwood, Hufford, and Rodriguez “entered into
or continued a line of collective bargain[in]g agreements” carried out in response to “public
sector union demands” from the “American Federation of Government [E]mployee[s] Union
Council of Prison Locals.” (Id. ¶¶ 46, 55.) Plaintiff contends that this union has acted as a
“shadow organization” for over 40 years, “negotiat[ing] deals with the Bureau of Prisons” to
deprive inmates of their constitutional rights. (Id. ¶¶ 46–48, 56.) Specifically, Plaintiff alleges
that Defendants Samuels, Norwood, Hufford, and Rodriguez entered into agreements with
Defendants DeMeo, Repeki, Bowe, McBride, and Banks to “disregard their duties under the
Statutes, Rules, and Regulations” and “sanitize [Plaintiff’s] and other inmates[’] rights.” (Id.
¶¶ 47, 54–56.) Plaintiff contends that these agreements had the effect of “forc[ing] inmates into
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court cases they [could not] afford,” (id. ¶ 47), and in particular, are the reason for Defendants’
ignorance of Plaintiff’s complaints and “obstruction of his administrative remedy process,” (id.
¶ 48).
Plaintiff requests that the Court issue a declaratory judgment and an award of damages.
(Id. at 23.) Specifically, Plaintiff requests $50,000 in monetary damages from each Defendant
for “acts and omissions based upon the ordeal they cause[d] [him],” and $100,000 in punitive
damages from each Defendant for their “intentional and wilful [sic] conduct to deprive [P]laintiff
of his civil rights.” (Id.)
B. Procedural History
Plaintiff filed his initial complaint on December 4, 2015, naming Defendants O’Maley,
Meyers, Gushue, DeMeo, Repeki, Rodriguez, and Bowe. (See Dkt. No. 2.)3 Plaintiff filed an
Amended Complaint on July 8, 2016, naming Samuels, Norwood, Hufford, Flowers, McBride,
and Banks as additional defendants. (See Dkt. No. 17.) Pursuant to an Order dated January 30,
2017, (Dkt. No. 49), Defendants filed the instant Motion To Dismiss Plaintiff’s Amended
Complaint on February 15, 2017, (Dkt. No. 50). Plaintiff has not filed any response.
II. Discussion
A. Standard of Review
When ruling on a Rule 12(b)(6) motion to dismiss, the Court must accept all factual
allegations in the complaint as true and draw all reasonable inferences in the plaintiff’s favor.
Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014). The Court, however, is not required to credit
“mere conclusory statements” or “[t]hreadbare recitals of the elements of a cause of action.”
Meyers, Gushue, and O’Maley are no longer named Defendants in this Action. As
such, their alleged acts and omissions are not considered in this analysis.
3
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Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007)). “To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face.” Id. at 678 (internal
quotation marks omitted). A claim is facially plausible “when the plaintiff pleads factual content
that allows the [C]ourt to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. Specifically, the plaintiff must allege facts sufficient to show “more
than a sheer possibility that a defendant has acted unlawfully,” id., and if the plaintiff has not
“nudged [his] claims across the line from conceivable to plausible, [the] complaint must be
dismissed,” Twombly, 550 U.S. at 570.
On a Rule 12(b)(6) motion to dismiss, the question “is not whether a plaintiff will
ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.”
Sikhs for Justice v. Nath, 893 F. Supp. 2d 598, 615 (S.D.N.Y. 2012). Accordingly, the “purpose
of Federal Rule of Civil Procedure 12(b)(6) is to test, in a streamlined fashion, the formal
sufficiency of the plaintiff’s statement of a claim for relief without resolving a contest regarding
its substantive merits.” Halebian v. Berv, 644 F.3d 122, 130 (2d Cir. 2011) (internal quotation
marks omitted). To decide the motion, the Court “may consider facts asserted within the four
corners of the complaint together with the documents attached to the complaint as exhibits, and
any documents incorporated in the complaint by reference.” Peter F. Gaito Architecture, LLC v.
Simone Dev. Corp., 602 F.3d 57, 64 (2d Cir. 2010) (internal quotation marks omitted).
Where, as here, a plaintiff proceeds pro se, the court must “construe[] [his] [complaint]
liberally and interpret[] [it] to raise the strongest arguments that [it] suggest[s].” Sykes v. Bank of
Am., 723 F.3d 399, 403 (2d Cir. 2013) (internal quotation marks omitted). However, “the liberal
treatment afforded to pro se litigants does not exempt a pro se party from compliance with
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relevant rules of procedural and substantive law.” Bell v. Jendell, 980 F. Supp. 2d 555, 559
(S.D.N.Y. 2013) (internal quotation marks omitted); see also Caidor v. Onondaga County, 517
F.3d 601, 605 (2d Cir. 2008) (“[P]ro se litigants generally are required to inform themselves
regarding procedural rules and to comply with them.” (italics and internal quotation marks
omitted)).
B. Analysis
1. Conditions of Confinement
Plaintiff first contends that Defendants Flowers, Rodriguez, Repeki, Bowe, and Hufford
violated his Eighth Amendment rights by requiring that Plaintiff remain in the same cell as
Michaels. (See Am. Compl. ¶ 49.) Plaintiff believes that in doing so, Defendants were
“indifferen[t] to [his] health and [s]afety needs” and that they “disregard[ed] an excessive risk to
the possibility [of Plaintiff] catching [] contagious bacteria or disease from Mr. Michaels[’s]
unsanitary hygiene conditions.” (Id. ¶ 50.) Defendants contend that the conditions of Plaintiff’s
confinement did not amount to a violation of his Eighth Amendment rights. For the reasons set
forth herein, Plaintiff’s claim is dismissed without prejudice.
a. Applicable Law
It is axiomatic that “[t]he conditions of a prisoner’s confinement can give rise to an
Eighth Amendment violation.” Phelps v. Kapnolas, 308 F.3d 180, 185 (2d Cir. 2002) (per
curiam) (citing Farmer v. Brennan, 511 U.S. 825, 828 (1994)). “In such cases, a prisoner may
prevail only where he proves both an objective element—that the prison officials’ transgression
was ‘sufficiently serious’—and a subjective element—that the officials acted, or omitted to act,
with a ‘sufficiently culpable state of mind,’ i.e., with ‘deliberate indifference to inmate health or
safety.’” Id. (quoting Farmer, 511 U.S. at 834 (italics omitted)); see also Garcia v. Fischer, No.
10
13-CV-8196, 2016 WL 297729, at *4 (S.D.N.Y. Jan. 22, 2016) (describing two elements of an
Eighth Amendment claim).
To satisfy the “objective” prong, “a plaintiff must show that the conditions, either alone
or in combination, pose an unreasonable risk of serious damage to [an inmate’s] health, which
can be satisfied if an inmate is deprived of basic human needs such as food, clothing, medical
care, and safe and sanitary living conditions.” Aikens v. Royce, No. 14-CV-663, 2016 WL
5720792, at *6 n.10 (S.D.N.Y. Sept. 30, 2016) (quoting Walker v. Schult, 717 F.3d 119, 125 (2d
Cir. 2013)) (internal quotations omitted). “Ultimately, to establish the objective element of an
Eighth Amendment claim, a prisoner must prove that the conditions of his confinement violate
contemporary standards of decency.” Phelps, 308 F.3d at 185. “[O]nly those deprivations
denying ‘the minimal civilized measure of life’s necessities,’ are sufficiently grave to form the
basis of an Eighth Amendment violation.” Wilson v. Seiter, 501 U.S. 294, 298 (1991) (quoting
Rhodes v. Chapman, 452 U.S. 337, 347 (1981)); see also Blyden v. Mancusi, 186 F.3d 252, 263
(2d Cir. 1999) (“Because society does not expect or intend prison conditions to be comfortable,
only extreme deprivations are sufficient to sustain a ‘conditions-of-confinement’ claim.”).
Under the “subjective” element, “a defendant ‘cannot be found liable under the Eighth
Amendment for denying an inmate humane conditions of confinement unless the official knows
of and disregards an excessive risk to inmate health or safety; the official must both be aware of
facts from which the inference could be drawn that a substantial risk of serious harm exists, and
he must also draw the inference.’” Aikens, 2016 WL 5720792, at *6 n.10 (quoting Phelps, 308
F.3d at 185–86). “A prison official may be found to have had a sufficiently culpable state of
mind if he participated directly in the alleged event, or learned of the inmate’s complaint and
failed to remedy it, or created or permitted a policy that harmed the inmate, or acted with gross
11
negligence in managing subordinates.” Id. (internal quotation marks omitted). Allegations of
mere negligence by prison officials will not support a claim under the Eighth Amendment. See
Edwards v. City of New York, No. 08-CV-5787, 2009 WL 2596595, at *2 (S.D.N.Y. Aug. 24,
2009) (citing County of Sacramento v. Lewis, 523 U.S. 833, 849 (1998); Farmer, 511 U.S. at
836; Daniels v. Williams, 474 U.S. 327, 328 (1986)).
b. Analysis
The poor hygienic conditions in Plaintiff’s cell coupled with his unsubstantiated,
misinformed fear of contracting the HIV/AIDS virus did not pose objectively serious risks to
Plaintiff’s health. As such, the conditions of Plaintiff’s cell did not give rise to a constitutional
violation.
First, Plaintiff’s claims concerning the “foul smell” and poor hygienic conditions of his
cellmate fail to rise to the level of an Eighth Amendment violation. “Only extreme deprivations
are sufficient to sustain a ‘conditions-of-confinement’ claim.” Knight v. Mun. Corp., No. 14CV-3783, 2016 WL 4017208, at *5 (S.D.N.Y. May 27, 2016) (citing Blyden, 186 F.3d at 263).
Moreover, it is well-established that “sharing a cell with an individual with body odor, or an
individual who does not bathe frequently, is a far cry from the ‘wanton and unnecessary
infliction of pain’ against which the Eighth Amendment protects.” Jones v. Goord, 435 F. Supp.
2d 221, 237 (S.D.N.Y. 2006); see also Cannon v. City of New York, No. 11-CV-8983, 2013 WL
1234962, at *6 (S.D.N.Y. Jan. 29, 2013) (“Smelling the odors of other inmates . . . does not meet
the level of harm required to state a constitutional claim.”), adopted by 2013 WL 1248546
(S.D.N.Y. Mar. 27, 2013).
The unhygienic practices of his cellmate and resulting “sewage smell” are alleged to have
caused Plaintiff “severe [headaches], nausea, [] repulsion to food,” and loss of sleep. (Am.
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Compl. ¶ 22.) While such conditions and their alleged effects on Plaintiff are unfortunate,
inmates are not guaranteed clean, odorless cells. In fact, “society does not expect or intend
prison conditions to be comfortable.” Knight, 2016 WL 4017208, at *5; see also Rhodes, 42
U.S. at 347 (noting that the Constitution does not require “comfortable” prison conditions).
Moreover, the allegations in the Amended Complaint that Michaels “def[e]cate[d] and
urinate[d] upon himself while on the top bunk above [Plaintiff],” (Am. Compl. ¶ 20), do not
indicate that such activity did anything more than contribute to the foul smell. Exposure to
human waste can, in extreme circumstances, give rise to an unconstitutional conditions-ofconfinement claim under the Eighth Amendment. See Walker, 717 F.3d at 127. However,
Plaintiff has not alleged facts showing that the human waste was not cleaned up, that it was
allowed to linger in the cell for any period of time, or that he ever came into physical contact
with it. Cf., e.g., id. (holding that “unsanitary conditions lasting for mere days may constitute an
Eighth Amendment violation”); Gaston v. Coughlin, 249 F.3d 156, 165 (2d Cir. 2001) (holding
that the plaintiff stated a claim where “for several consecutive days and one noncontiguous day .
. . , the area directly in front of his cell was filled with human feces, urine, and sewage water”);
Wright v. McMann, 387 F.2d 519, 522 (2d Cir. 1967) (holding that the plaintiff had stated a
claim where the “bodily wastes of previous occupants . . . covered the floor, the sink, and the
toilet”). While Plaintiff is not required to detail the “exact extent or duration of his exposure to
unsanitary conditions,” Walker, 717 F.3d at 128 (alteration and internal quotation marks
omitted), he must provide at least enough allegations for the Court to assess “both the duration
and the severity of [his] experience of being exposed to unsanitary conditions,” Willey v.
Kirkpatrick, 801 F.3d 51, 68 (2d Cir. 2015).
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Here, Plaintiff alleges only that Michaels “def[e]cate[d] and urinate[d] upon himself on
the top bunk.” Plaintiff does not allege that he ever came in contact with Michaels’ human
waste, or that prison officials unduly delayed cleaning up any mess or allowed the waste to
remain unattended for any period of time. Thus, Plaintiff’s exposure to such waste begins and
ends with the foul smell that it produced, which, as noted, is not sufficient to state a conditionsof-confinement claim. See Cannon, 2013 WL 1234962, at *6 (“Smelling the odors of other
inmates . . . does not meet the level of harm required to state a constitutional claim.”). As such,
because the unsanitary, foul-smelling conditions of Plaintiff’s confinement do not implicate his
Eighth Amendment rights, Plaintiff’s claims in this regard are dismissed without prejudice.
Plaintiff is permitted to amend his Complaint to include additional allegations, including any
regarding the length and severity of his exposure to Michaels’ human waste. See Willey, 801
F.3d at 68.
Plaintiff’s claims alleging risk of exposure to “blood-born[e] diseases” similarly fail.
Plaintiff can state an Eighth Amendment claim in this respect by alleging that Defendants’
deliberate indifference exposed him to an unreasonable risk of contracting HIV/AIDS. See
Helling v. McKinney, 509 U.S. 25, 35 (1993) (inmate’s involuntary exposure to environmental
tobacco smoke was sufficient basis for an Eighth Amendment claim).
However, Plaintiff’s allegations fail to plausibly establish that any such risk existed. In
particular, even if Michaels was HIV/AIDS positive, the conditions of Plaintiff’s confinement
did not exacerbate his risk of contracting the virus. It is well established that “a prisoner’s
confinement in proximity to carriers of the AIDS virus does not violate the Eighth
Amendment[].” Aiken v. Cottingham, No. 08-CV-2491, 2008 WL 4449952, at *3 (D.S.C. Sept.
26, 2008); see also Sosa v. Cleaver, No. 03-CV-1707, 2005 WL 1205119, at *5–6 (D. Conn.
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May 18, 2005) (same); Bolton v. Goord, 992 F. Supp. 604, 628 (S.D.N.Y. 1998) (same).
Plaintiff alleges only that he was exposed to the foul-smelling and unhygienic conditions
inherent in sharing a cell with Michaels. Even after their physical altercation, Plaintiff does not
contend that he ever came into contact with Michaels’ bodily fluid(s). For example, there is no
indication that Plaintiff was ever exposed to a situation in which blood was transferred from
Michaels to Plaintiff. See Massick v. N. Cent. Corr. Facility, 136 F.3d 580, 581 (8th Cir. 1998)
(exposure to open wounds established unreasonable risk); see also Jackson v. Halberfield, No.
10-CV-45, 2011 WL 7278261, at *4, *6 (D. Nev. Dec. 15, 2011) (holding that “physical
altercations, which resulted in cuts, transferring blood from one another” were a factor in an
unreasonable risk assessment). While his fear of contracting HIV/AIDS from Michaels may
have been real, Plaintiff’s actual risk of contracting the disease is not evident from his Amended
Complaint. See Aikens, 2016 WL 5720792, at *6 n.10; see also Bolton, 992 F. Supp. at 628
(“HIV is not spread by casual contact such as sharing sinks or toilets. Rather, it is most
commonly spread through contact with blood or semen.”). Thus, there exists no plausible claim
here that Plaintiff was subjected to an unreasonable risk of serious damage to his health. As
such, this claim is dismissed without prejudice. Plaintiff is afforded the opportunity to amend his
Complaint to more properly illustrate the “objective prong” in this analysis.
2. Failure to Protect
The Court construes Plaintiff’s Amended Complaint to be asserting an additional claim
that Defendants’ failure to protect him from Michaels amounted to a violation of his Eighth
Amendment rights. Plaintiff alleges that he told numerous prison officials that Michaels was
known for his “unstable [and] violent conduct,” that Michaels himself warned Unit Manager
O’Maley of the potential for trouble between the inmates, and that, in the course of their physical
15
altercation, an unnamed unit officer was instructed by Gushue to “let things happen.” (Am.
Compl. ¶¶ 31, 32, 49) However, Meyers, O’Maley, and Gushue are no longer named Defendants
in this case and, accordingly, their alleged actions are not relevant here. Thus, the Court
construes Plaintiff’s Amended Complaint to be claiming only that Defendant Rodriguez was
aware of the risk to Plaintiff’s safety and did not take the appropriate measures to abate that risk.
See Farmer, 511 U.S. at 832. Defendants contend that, while the alleged altercation between
Plaintiff and Michaels was sufficiently serious, Defendant Rodriguez did not consciously
disregard a risk to Plaintiff’s safety. (See Defs.’ Mem. of Law in Supp. of Mot. To Dismiss
(“Defs.’ Mem.”) 18 (Dkt. No. 51).). The Court agrees.
An inmate may state a claim under the Eighth Amendment against a prison official under
the theory that prison officials failed to protect him or her. See Farmer, 511 U.S. at 847; see also
Hayes v. N.Y.C. Dep’t of Corr., 84 F.3d 614, 620 (2d Cir. 1996) (“The Eighth Amendment
requires prison officials to take reasonable measures to guarantee the safety of inmates in their
custody.”). A plaintiff seeking to make such a claim must allege both an objective and
subjective element: that “he is incarcerated under conditions posing a substantial risk of serious
harm,” and that the prison official had a “sufficiently culpable state of mind, to wit, [was]
deliberately indifferent to the harmful conditions.” Randle v. Alexander, 960 F. Supp. 2d 457,
473 (S.D.N.Y. 2013) (emphasis and internal quotation marks omitted); see also Parris v. N.Y.
State Dep’t Corr. Servs., 947 F. Supp. 2d 354, 362 (S.D.N.Y. 2013) (same); Warren v. Goord,
476 F. Supp. 2d 407, 410 (S.D.N.Y. 2007) (same). Deliberate indifference exists “when an
official ‘has knowledge that an inmate faces a substantial risk of serious harm and he disregards
that risk by failing to take reasonable measures to abate the harm.’” Parris, 947 F. Supp. 2d at
363 (quoting Hayes, 84 F.3d at 620).
16
Here, Plaintiff alleges that he told Rodriguez on February 26, 2013 that he was suffering
from sleep deprivation “as a result of being celled with a person known to become violent at
anytime.” (Am. Compl. ¶ 20.) In general, to satisfy the requirements of an Eighth Amendment
failure to protect claim, a “plaintiff must allege that the defendants knew of a prior altercation
between the plaintiff and his attacker, or of threats that had been made against the plaintiff.”
Parris, 947 F. Supp. 2d at 363. In the absence of such allegations, prison officials are not liable
for any harm caused by inmate-on-inmate violence. See Fernandez v. N.Y.C. Dep’t of Corr., No.
08-CV-4294, 2010 WL 1222017, at *4 (S.D.N.Y. Mar. 29, 2010) (dismissing the complaint
where the plaintiff had not pled “that he and [his attacker] were involved in a prior altercation,
that [the attacker] had previously threatened him, or that there was any other reason for officers
at [the facility] to be on notice that there was a risk of altercation between [the] [p]laintiff and
[his attacker]”).
Here, Plaintiff has merely alleged that he was celled with an inmate who was known to
be violent. (See Am. Compl. ¶ 20.) Given that inmates in federal prison are often incarcerated
specifically because of some record of violence, it can hardly be said that Plaintiff’s comments to
Rodriguez warranted a need for further protection, especially in the absence of any history of
violence between Michaels and Plaintiff. Simply put, “a failure to protect claim requires more
than a showing that the correctional facility contains dangerous conditions.” Manning v. Griffin,
No. 15-CV-3, 2016 WL 1274588, at *10 (S.D.N.Y. Mar. 31, 2016) (citing Edney v. Kerrigan,
No. 00-CV-2240, 2004 WL 2101907, at *6 (S.D.N.Y. Sept. 21, 2004) (report and
recommendation)). Accordingly, Rodriguez did not consciously disregard any substantial risk to
Plaintiff’s safety and, as such, his conduct does not rise to the level of an Eighth Amendment
violation. Plaintiff’s claims in this respect are dismissed without prejudice.
17
3. First Amendment Retaliation
Plaintiff further contends that Defendants Rodriguez, Flowers, DeMeo, Repeki, and
Hufford sought disciplinary action in response to Plaintiff “observing his right to redress of his
grievances.” (Am. Compl. ¶ 51.) The Court construes the Amended Complaint to be
additionally asserting that Defendants McBride and Banks retaliated by “falsifying an
administrative investigation” and depriving Plaintiff of “goodtime credits.” (See id. ¶ 52.)
Defendants contend that Plaintiff has failed to plausibly state a constitutional claim, as there are
insufficient allegations to plausibly show a “causal connection between Plaintiff’s filing of
grievances and the alleged retaliatory actions.” (Defs.’ Mem. 21.) The Court agrees.
To state a First Amendment retaliation claim, a plaintiff must allege “(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 conduct and the adverse
action.” Holland v. Goord, 758 F.3d 215, 225 (2d Cir. 2014) (alteration and internal quotation
marks omitted); see also Washington v. Chaboty, No. 09-CV-9199, 2015 WL 1439348, at *9
(S.D.N.Y. Mar. 30, 2015) (same). The inmate “bears the burden of showing that the protected
conduct was a substantial or motivating factor in the prison officials’ disciplinary decision,” after
which the “defendant official then bears the burden of establishing that the disciplinary action
would have occurred even absent the retaliatory motivation.” Holland, 758 F.3d at 225–26
(internal quotation marks omitted). “[B]ecause virtually any adverse action taken against a
prisoner by a prison official—even those otherwise not rising to the level of a constitutional
violation—can be characterized as a constitutionally proscribed retaliatory act,” the Second
Circuit has instructed district courts to “approach prisoner retaliation claims with skepticism and
particular care.” Dolan v. Connolly, 794 F.3d 290, 295 (2d Cir. 2015) (internal quotation marks
18
omitted); see also Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996) (“Retaliation claims by
prisoners are prone to abuse since prisoners can claim retaliation for every decision they dislike.”
(internal quotation marks omitted)).
While Plaintiff alleges that Defendants violated Plaintiff’s rights “by seeking disciplinary
action against . . . [P]laintiff for observing his right to redress of his grievances based upon acts
and omissions they personally committed or aided or abetted to bring about,” (Am. Compl. ¶ 51),
absent from the Amended Complaint is any allegation that Plaintiff ever filed a grievance
regarding the conduct described here. At one point, Plaintiff details that he “was forced to go on
a hunger strike to make [D]efendants Flowers and Gush[ue] . . . locate a previously filed
informal resolution BP-8 Complaint Form and to issue both a Tort Claim Form and BP-10
appeal form,” (id. ¶ 44), but he does not describe when that grievance was filed, what incidents
the grievance related to, or against whom it was filed. Moreover, Plaintiff alleges only that he
made Flowers and Gushue (but apparently no other Defendants) aware of the grievance in May
2013, two months after discipline was imposed on Plaintiff for his altercation with Michaels and
one month after the decision to move him to a new facility. (See id. ¶¶ 38–43.) In the absence
of any allegation that Plaintiff filed a grievance against these Defendants relating to these
incidents, see Wright v. Goord, 554 F.3d 255, 274 (2d Cir. 2009) (dismissing retaliation claim
against a correction officer when the only alleged basis for retaliation was a complaint about a
prior incident by another correction officer), that any of Defendants were aware of that
grievance, Tirado v. Shutt, No. 13-CV-2848, 2015 WL 774982, at *10 (S.D.N.Y. Feb. 23, 2015)
(“Absent evidence that any defendant knew about his . . . grievance, [the plaintiff] has failed to
provide any basis to believe that they retaliated against him for a grievance in which they were
not named.”), adopted in relevant part by 2015 WL 4476027 (S.D.N.Y. July 22, 2015), or that
19
there was any temporal relationship between the grievance and the disciplinary action, see Rivera
v. Goord, 119 F. Supp. 2d 327, 341 (S.D.N.Y. 2000) (dismissing retaliation claim where “[t]here
was no temporal proximity between [the] plaintiff’s protected activity and [the defendant’s]
alleged acts of retaliation”), Plaintiff cannot state a retaliation claim. Plaintiff’s First
Amendment claims are therefore dismissed without prejudice.
4. Due Process
The Court construes the Amended Complaint to be additionally alleging that Plaintiff’s
due process rights were violated during the course of the disciplinary proceedings that followed
his altercation with Michaels, which resulted in Plaintiff’s transfer to a different facility and a
loss of 27 days good time. (See Am. Compl. ¶¶ 39–40.)4 Defendants contend that these
sanctions were within the Defendants’ discretion, and that Plaintiff is merely contesting the
outcome of his disciplinary proceeding. (See Defs.’ Mem. 22.)
The Fifth Amendment prohibits the deprivation of a person’s life, liberty, or property
without due process of law. However, in the prison context, “[l]awful incarceration brings about
the necessary withdrawal or limitation of many privileges and rights.” Walker v. City of New
York, No. 11-CV-9611, 2012 WL 3037308, at *3 (S.D.N.Y. July 25, 2012) (citing Sandin v.
Conner, 515 U.S. 472, 478 (1995)); see also Wolff v. McDonnell, 418 U.S. 539, 556 (1974)
(inmates are not entitled to a “full panoply of rights”).
As an initial matter, no procedural due process claim can be found if the plaintiff does not
actually challenge the procedural elements of the disciplinary hearings. See Franco v. Kelly, 854
Plaintiff’s Amended Complaint could also be construed as asserting that Defendant
McBride’s allegedly falsified report amounted to a Due Process violation. However, as
discussed above, Plaintiff’s allegations in that area are wholly conclusory. Accordingly, the
Court declines to address those claims in the context of a Due Process violation.
4
20
F.2d 584, 587 (2d Cir. 1988) (“[T]he key inquiry in assessing an allegation that an inmate has
been found guilty of false disciplinary charges is whether or not the prison has provided the
inmate with the minimum procedural due process protections guaranteed by the Fourteenth
Amendment.”). Indeed, “[a] correctional officer’s filing of unfounded charges does not give rise
to procedural due process liability.” Benitez v. Ham, No. 04-CV-1159, 2009 WL 3486379, at
*21 (N.D.N.Y. Oct. 21, 2009) (citing Freeman v. Rideout, 808 F.2d 949, 951 (2d Cir. 1986)).
Plaintiff’s Amended Complaint alleges in a conclusory fashion that the hearing was not impartial
due to “staff direct involvement in this incident,” (Id. at ¶ 37), and that Defendant Banks had
“predetermined the outcome” of this matter, (Am. Compl. ¶ 38). While it is “improper for prison
officials to decide the disposition of a case before it [i]s heard,” the Second Circuit has
determined that “the degree of impartiality required of prison hearing officials does not rise to
the level of that required of judges generally,” and given the “special characteristics of the prison
environment, it is permissible for the impartiality of such officials to be encumbered by various
conflicts of interest that, in other contexts, would be adjudged of sufficient magnitude to violate
due process.” Francis v. Coughlin, 891 F.2d 43, 47 (2d Cir. 1989) (citation omitted). Plaintiff
alleges no facts that Defendant Banks was in any way “involve[ed] in th[e] incident,” (Am.
Compl. ¶ 37), and fails to present any facts in support of his threadbare allegation that Defendant
Banks had “predetermined the outcome” of this matter, (Am. Compl. ¶ 38). Ultimately, Plaintiff
does not allege any actual procedural deficiencies in his disciplinary hearings, but instead
appears to simply take issue with Banks’s decision to disregard Plaintiff’s defense that he was
acting out of necessity given the extreme circumstances he was placed in. (See Am. Compl. ¶
38.) Without more, Plaintiff’s allegations do not render the proceedings unconstitutionally
impartial and do not present a plausible procedural due process claim.
21
With respect to the outcome of the hearing, while an imposition of discipline by a prison
disciplinary board must be “supported by some evidence in the record,” Superintendent Mass.
Corr. Inst., Walpole v. Hill, 472 U.S. 445, 454 (1985), this standard is satisfied where “there is
any evidence in the record that could support the conclusion reached by the disciplinary board,”
as the Due Process Clause “does not require courts to set aside decisions of prison administrators
that have some basis in fact,” id. at 455–56. Thus, to the extent Plaintiff challenges the ultimate
outcome of his disciplinary hearing, that challenge is without merit—the allegations in the
Amended Complaint make clear that there was some evidence, namely Plaintiff’s altercation
with Michaels, (see Am. Compl. ¶ 35), from which the disciplinary board could determine that
punishment was warranted. In the absence of an allegation of insufficient process, the Due
Process Clause requires nothing more. Thus, Plaintiff has failed to state a plausible due process
claim.
5. Equal Protection
“The Equal Protection Clause bars the government from selective adverse treatment of
individuals compared with other similarly situated individuals if such selective treatment was
based on impermissible considerations such as race, religion, intent to inhibit or punish the
exercise of constitutional rights, or malicious or bad faith intent to injure a person.” Bizzarro v.
Miranda, 394 F.3d 82, 86 (2d Cir. 2005) (emphasis and internal quotation marks omitted). To
state a violation of the Equal Protection Clause, a plaintiff must allege “that he was treated
differently than others similarly situated as a result of intentional or purposeful discrimination.”
Phillips v. Girdich, 408 F.3d 124, 129 (2d Cir. 2005); see also Nash v. McGinnis, 585 F. Supp.
2d 455, 462 (W.D.N.Y. 2008) (“In order to plead a facially valid equal protection claim . . . [a]
plaintiff must allege: (1) that he has been treated differently from similarly-situated inmates, and
22
(2) that the discrimination is based upon a constitutionally impermissible basis, such as race,
religion, national origin, or some other protected right.”).
While the Equal Protection Clause is typically invoked to bring lawsuits claiming
discrimination based on membership in a protected class, where a plaintiff does not allege
membership in a protected class, he may still prevail on a “class-of-one” theory of equal
protection. See Neilson v. D’Angelis, 409 F.3d 100, 104 (2d Cir. 2005), overruled on other
grounds by Appel v. Spiridon, 531 F.3d 138 (2d Cir. 2008) (per curiam). A class-of-one claim
arises when a plaintiff claims that he was “intentionally treated differently from others similarly
situated and that there is no rational basis for the difference in treatment.” Village of
Willowbrook v. Olech, 528 U.S. 562, 564 (2000).
In order to succeed on such a claim, the plaintiff must establish that:
(i) no rational person could regard the circumstances of the plaintiff to differ from
those of a comparator to a degree that would justify the differential treatment on
the basis of a legitimate government policy; and (ii) the similarity in circumstances
and difference in treatment are sufficient to exclude the possibility that the
defendants acted on the basis of a mistake.
Analytical Diagnostic Labs, Inc. v. Kusel, 626 F.3d 135, 140 (2d Cir. 2010) (quoting Neilson,
409 F.3d at 104). Class-of-one plaintiffs must show “an extremely high degree of similarity
between themselves and the persons to whom they compare themselves.” Ruston v. Town Bd.
for Town of Skaneateles, 610 F.3d 55, 59 (2d Cir. 2010) (internal quotation marks omitted).
“Because of the particular posture of a ‘class of one’ claim, the comparator’s circumstances must
be ‘prima facie identical.’” Mosdos Chofetz Chaim, Inc. v. Village of Wesley Hills, 815 F. Supp.
2d 679, 693 (S.D.N.Y. 2011) (quoting Neilson, 409 F.3d at 105). The comparison to similarly
situated individuals should “provide an inference that the plaintiff was intentionally singled out
for reasons that so lack any reasonable nexus with a legitimate government policy that an
23
improper purpose—whether personal or otherwise—is all but certain.” Neilson, 409 F.3d at 105.
“It is well established that this pleading standard is demanding.” Hampshire Recreation, LLC v.
Village of Mamaroneck, No. 14-CV-7228, 2016 WL 1181727, at *6 (S.D.N.Y. Mar. 25, 2016)
(internal quotation marks omitted).
Plaintiff’s Amended Complaint is ambiguous as to the extent that he is invoking his equal
protection rights. It is possible, though far from clear, that Plaintiff intends to allege that the
prison official Defendants unlawfully and involuntarily assigned him a caregiver role for
Michaels and thereby violated his equal protection rights. However, Plaintiff does not
sufficiently allege that he was treated differently from other inmates in this regard, much less that
any alleged “drafting” of inmates into caregiver roles for those who may need them lacked any
rational basis. Plaintiff’s Amended Complaint provides at best conclusory allegations that he
was treated differently from similarly situated inmates at Otisville. Accordingly, his equal
protection claims are dismissed. See C-Tech of New Haven, Inc. v. Univ. of Conn. Health Ctr.,
No. 15-CV-1058, 2016 WL 3620713, at *3 (D. Conn. June 29, 2016) (dismissing equal
protection claim where the plaintiffs “refer[red] to no comparators” in their complaint); Walzer v.
Town of Orangetown, No. 13-CV-7971, 2015 WL 1539956, at *6 n.5 (S.D.N.Y. Apr. 7, 2015)
(holding that the plaintiff had not stated an equal protection claim where “he ha[d] provided no
comparators”). Plaintiff is afforded the opportunity to amend his Complaint to more effectively
plead his class-of-one allegations.
6. Conspiracy
Finally, the Court construes Plaintiff’s Amended Complaint as alleging that Defendants
Samuels, Norwood, Hufford, and Rodriguez “entered into agreements” with Defendants DeMeo,
Repeki, Bowe, McBride, and Banks to “sanitize [Plaintiff’s] and other inmates[’] rights.” (Am.
24
Compl. ¶¶ 54–56.) Plaintiff alleges that the conspiracy was carried out in response to “public
sector union demands” from the “American Federation of Government [E]mployee[s] Union
Council of Prison Locals,” which he alleges has acted as “shadow organization” for over 40
years, “negotiat[ing] deals with the Bureau of Prisons” to deprive inmates of their constitutional
rights. (Am. Compl. ¶¶ 46–48, 55.)
To prove a § 1983 conspiracy, “a plaintiff must show the following: (1) an agreement
between two or more state actors . . . (2) to act in concert to inflict an unconstitutional injury; and
(3) an overt act done in furtherance of that goal causing damages.” McGee v. Dunn, No. 09-CV6098, 2015 WL 9077386, at *5 (S.D.N.Y. Dec. 16, 2015) (citing Pangburn v. Culbertson, 200
F.3d 65, 72 (2d Cir. 1999)), aff’d, 672 F. App’x 115 (2d Cir. 2017). “A complaint containing
only conclusory, vague, or general allegations of conspiracy to deprive a person of constitutional
rights cannot withstand a motion to dismiss.” Sommer v. Dixon, 709 F.2d 173, 175 (2d Cir.
1983); see also Micolo v. Fuller, No. 15-CV-6374, 2016 WL 6404146, at *6 (W.D.N.Y. Oct. 28,
2016) (same), reconsideration denied, 2017 WL 2297026 (W.D.N.Y. May 25, 2017). However,
conspiracies are by their very nature secretive operations that can hardly ever be proven by direct
evidence. See United States v. Rivera, 971 F.2d 876, 890 (2d Cir. 1992). As such,
circumstantial, rather than direct, evidence can be used to prove the existence of a conspiracy.
See Rounseville v. Zahl, 13 F.3d 625, 632 (2d Cir. 1994).
Plaintiff’s Amended Complaint is completely devoid of any factual support for his
wholly conclusory allegations of conspiracy. See Sommer, 709 F.2d at 175. Even when
considering the secretive nature of conspiracies, see Rivera, 971 F.2d at 890, the Amended
Complaint fails to provide even circumstantial allegations that the alleged conspiracy existed,
much less any details as to the extent of the alleged agreement or how Defendants collectively
25
carried it out, see Rounseville, 13 F.3d at 632. Moreover, it is difficult to ascertain exactly which
Defendants are alleged to have formed the conspiracy or acted on behalf of it. Even when
liberally construed, the Plaintiffs conspiracy claims are wide-ranging and largely unintelligible.
Consistent with Second Circuit precedent, the Court declines to find a plausible conspiracy claim
where the allegations are wholly conclusory and contain no factual support whatsoever.
Therefore, these claims are dismissed without prejudice.5 Plaintiff is permitted to further amend
his Complaint to articulate his claims and provide factual support for the alleged conspiracy.
III. Conclusion
In light of the foregoing discussion, Defendants' Motion To Dismiss is granted. The
Amended Complaint is dismissed without prejudice. Plaintiff may file a Second Amended
Complaint within 30 days of the date of this Opinion & Order correcting the deficiencies
outlined above. The Clerk of Court is respectfully directed to terminate the pending Motion, (see
Dkt. No. 50), and mail a copy of this Opinion & Order to Plaintiffs address on the docket.
SO ORDERED.
DATED:
Augusti~
, 2017
White Plains, New York
ET
ITED STATES DISTRICT JUDGE
5
Because Plaintiff has failed to state a plausible conspiracy claim, any equal protection
claims that stem from the alleged conspiracy are accordingly dismissed without prejudice.
26
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