Keesh v. Quick et al

Filing 50

MEMORANDUM OPINION AND ORDER: Based upon the foregoing, Defendants' motion to dismiss pursuant to Rule 12(b)(6) is GRANTED in part. The Court dismisses Plaintiffs claims under 42 U.S.C. § 1981; his claims under 42 U.S.C. § 1983 all eging violations of the Eighth, Fourth, and Fourteenth Amendments; and his claims under 42 U.S.C. §§ 1983 and 1985 alleging conspiracy. While "[d]istrict courts should frequently provide leave to amend before dismissing a prose compla int... leave to amend is not necessary when it would be futile." Reedv. Friedman Mgt. Corp., 541 F. App'x 40, 41 (2d Cir. 2013) (citing Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000)). For all the reasons described herein, the Court dismisses the foregoing claims alleged in Plaintiffs Complaint with prejudice as any amendment would be futile. Plaintiffs claims under 42 U.S.C. § 1983 for retaliation in violation of the First Amendment are all likewise dismissed with prejud ice, except his retaliation claim against Franco for filing the MBR which shall proceed to discovery. Plaintiff's claim under 42 U.S.C. § 1983 against Bodge alleging a violation of the free exercise clause of the First Amendment and RLUI P A shall proceed to discovery as well. Plaintiff's request for sanctions is DENIED. The remaining Defendants, Franco and Bodge, are directed to file an Answer to the Complaint by March IO, 2021. The Court will thereafter docket a Notice of In itial Conference. The Clerk of the Court is respectfully directed to tem1inate the motion (Doc. 46); to te1minate as Defendants Quandera Quick, Salvatore P. Gregory, D. Rodriguez, S.A. Coughlin, R. Williams, Michael Bames, Michael Capra, Mark Royce , Shelley Mallozzi, and Rebecca A. Loren; and to mail a copy of this Memorandum Opinion and Order to Plaintiff. SO ORDERED. re: 46 MOTION to Dismiss . filed by Shelley Mallozzi, J.P. Franco, Mark Royce, D. Rodriguez, S.A. Coughl in, Salvatore P. Gregory, R. Williams, B. Bodge, Michael Capra, Quandera Quick, Rebecca A. Loren. (Signed by Judge Philip M. Halpern on 2/17/2021) S.A. Coughlin (Correction Lieutenant), Salvatore P. Gregory, Rebecca A. Loren (Inmate Grievan ce Program Coordinator), Shelley Mallozzi (Inmate Grievance Program Director), Quandera Quick (Inmate Grievance Program Supervisor), D. Rodriguez (Correction Officer), Mark Royce (former Deputy Superintendent of Security), R. Williams (Correctio n Lieutenant), Michael Barnes (Correction Captain/Acting Deputy Superintendent of Security) and Michael Capra (Superintendent) terminated., B. Bodge answer due 3/10/2021; J.P. Franco answer due 3/10/2021. (ks) Transmission to Docket Assistant Clerk for processing.

Case 7:19-cv-08942-PMH Document 50 Filed 02/17/21 Page 1 of 26

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

---------------------------------------------------------X
TYHEEM Y. KEESH,
Plaintiff,
MEMORANDUM OPINION
AND ORDER

V.

QUANDERA QUICK, et al.,

19-CV-08942 (PMH)

Defendants.

---------------------------------------------------------X
PHILIP M. HALPERN, United States District Judge:
PlaintiffTyheem Y. Keesh ("Plaintiff'), 1 proceeding prose and informa pauper is ("IFP"),
commenced this action on September 26, 2019, bringing claims under 42 U.S.C. §§ 1981, 1983,
and 1985 involving violations of the First, Fourth, Eighth, and Fourteenth Amendments, and the
Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc et seq., against a number
of employees from the New York State Depaiiment of Corrections and Community Supervision
("DOCCS") in their individual and official capacities, as follows: Quandera Quick, Inmate
Grievance Program Supervisor ("Quick"); J.P. Franco, Correction Officer ("Franco"); Salvatore
P. Greg01y, Correction Officer ("Grego1y"); D. Rodriguez, Correction Officer ("Rodriguez"); B.
Bodge, Correction Lieutenant ("Bodge"); S.A. Coughlin, Conection Lieutenant ("Coughlin"); R.
Williams, Correction Lieutenant ("Williams"); Michael Barnes, Correction Captain/Acting
Deputy Superintendent of Security ("Barnes"); Michael Capra, Superintendent ("Capra"); Mark
Royce, former Deputy Superintendent of Security ("Royce"); Shelley Mallozzi, Inmate Grievance
Program Director ("Mallozzi"); and Rebecca A. Loren, Inmate Grievance Program Coordinator
("Loren" and collectively, "Defendants"). (Doc. 2, "Comp!."). Plaintiff alleges in the Complaint,
inter alia, that: (1) Franco assaulted him on August 2, 2018; (2) ce11ain Defendants searched

1

Also formerly known as Tyheem Allah and Tyheem Mills.

Case 7:19-cv-08942-PMH Document 50 Filed 02/17/21 Page 2 of 26

Plaintiffs cell and frisked him on April 3, 2019; (3) certain Defendants violated his due process
rights during a disciplinary hearing that took place on April 7, 2019; and (4) Bodge abused him
verbally on May 22, 2019. Plaintiff alleges further that these were acts of retaliation against him,
many of which he insists were conspiracies.
By order dated October 11, 2019, Chief Judge McMahon noted that while incarcerated,
Plaintiff filed four cases that were dismissed as frivolous, malicious, or for failure to state a claim
(Doc. 9 at 2), 2 and ordered Plaintiff to show cause within thirty days why he should not be barred
under 28 U.S.C. § 1915(g) from filing further actions IFP in this Court while he is a prisoner (id.
at 3). The Comi noted also that Plaintiff did not allege any facts suggesting that he is in imminent
danger of serious physical injury. (Id. at 2).
Plaintiff, in response to Judge McMahon's Order to Show Cause, filed a declaration on
November 8, 2019. (Doc. 10, "Deel."). Plaintiff asserted in in his declaration the same facts that
are alleged in the Complaint, but he argued that based on those facts, his life is in danger. (Deel.

1

5). Plaintiff asserted that Defendants Franco, Gregory, Bodge, Coughlin, and Williams are
members of"The Brotherhood." (Id.). Plaintiff describes The Brotherhood as "a group ofDOCC's
workers who are white supremacists, [and] have a deep hatred for non-whites, especially Blacks."

(Id. at 2, n. l ). Plaintiff alleged that Bodge threatened to lynch him and Franco told Plaintiff "he
was going down." (Id.

11

5, 11). Plaintiff alleges further that Defendants have conspired to

2

See Mills v. Evangelista, No. Ol-CV-7538 (S.D.N.Y. Aug. 14, 2001) (dismissing complaint under 28
U.S.C. § 1915(e)(2)), appeal dismissed, No. 01-0232 (2d Cir. July 3, 2003); Mills v. Coughlin, No. 93-CV0109 (W.D.N.Y. Oct. 4, 1995) (dismissing complaint for failure to allege facts describing a violation of
federal law), appeal dismissed, No. 95-2753 (2d Cir. May 6, 1996) (appeal dismissed as lacking in merit).
Plaintiff notes also in the Complaint "his most recent civil action in the Southern District of New York,"
which was resolved against Plaintiff by Judge Gardephe at summaiy judgment on March 25, 2019. (Comp!.
1120-21; No. 13-CV-02040 (S.D.N.Y. Mar. 25, 2019)).
2

Case 7:19-cv-08942-PMH Document 50 Filed 02/17/21 Page 3 of 26

discipline him and retaliate against him for his complaints against staff because members of The
Brotherhood do not accept prisoners complaining about them. (Id.

,r 10).

On December 4, 2019, Judge Karas granted Plaintiffs request to proceed IFP (Doc. 12),
and on December 5, 2019, Judge Karas issued an Order of Service (Doc. 13). On April 16, 2020,
this action was reassigned to this Court. On July 13, 2020, Defendants moved to dismiss the
Complaint under Federal Rule of Civil Procedure 12(b)(6) (Doc. 46; Doc. 47, "Defs. Br."), and
Plaintiff opposed the motion on August 18, 2020 (Doc. 48, "Pl. Opp'n"). 3 Defendants did not file
any reply papers.
For the reasons set forth below, Defendants' motion to dismiss is GRANTED in part.
BACKGROUND 4

I.

Franco Assault
The Complaint alleges that Plaintiff was an Inmate Grievance Resolution Committee

Representative ("IGRC Rep") at Sing Sing Correctional Facility ("Sing Sing"), and as such, had a
pass which permitted him to leave his housing block unescorted. (Comp!.

,r,r

27, 28). Plaintiff

alleges that on August 2, 2018, as he was leaving Sing Sing Housing Block 7 ("HB7") at 8:30
a.m., Franco asked Plaintiff "where the fuck you think you going" and directed him back to the
housing block. (Id.

ii 32). Before Plaintiff could return into HB7, Franco slammed the gate on

Plaintiff and it bounced off his back; Plaintiff had waited close to the gate. (Id.

,r 33). A short while

later, Franco permitted Plaintiff to leave the housing block and go to his program as IGRC Rep.
(Id.). Plaintiff then filed a grievance, SS 59891-18. (Id.

,r 35).

Plaintiff alleges that Franco is a

member of The Brotherhood, does not like any prisoner who possesses a pass, and has "a deep

3

Citations to the pa1ties' brief correspond to the pagination generated by ECF.

4

The facts recited herein are taken from the allegations of the Complaint and Plaintiff's Declaration.

3

Case 7:19-cv-08942-PMH Document 50 Filed 02/17/21 Page 4 of 26

hatred for Blacks, prisoners in general, and white prisoners who are sympathetic or friendly to

,r 28).

non-white prisoners." (Id.

At some unidentified time, Plaintiff was esco1ied to the medical department and examined
by medical personnel. (Id.

,r 37). As paii of a conspiracy by "multiple officials" in retaliation for

having filed a grievance against Franco, on August 4, 2018, Franco wrote a misbehavior report
("MBR") against Plaintiff. (Id. ilil 38, 39). As a result of the MBR, Plaintiff was placed in keeplock
for eight days. (Id.
26, 2018. (Id.

,r

,r 40).

Plaintiff's grievance against Franco was denied by Capra on September

39). Approximately nine months later, on April 2, 2019, Franco threatened

Plaintiff, stating that Plaintiff was "going down" because he had filed a grievance against Franco
on August 2, 2018. (Id.
II.

,r 57).

April 3, 2019 Cell Search
The Complaint alleges that on April 2, 2019, Plaintiff complained to Barnes about prison

officials hindering him from performing his duties as an IGRC Rep. (Id.). Every time Plaintiff
complains to Barnes, "he is subjected to a special cell search, regular search, misbehavior repmi
and/or confinement." (Id.). Plaintiff alleges that, in violation of an internal DOCCS Directive, on
April 3, 2019, Plaintiff's cell was searched by Gregory and Rodriguez, who also conducted a strip
frisk of Plaintiff pursuant to Williams's order (the "Cell Search"). (Id.

ii 42). As a result of the Cell

Search, Gregory and Rodriguez confiscated a NCAA bracket, placed Plaintiff in keeplock, and
filed an MBR against Plaintiff for possessing gambling material and contraband. (Id.

,r

43).

Plaintiff alleges that he wrote a complaint to Royce, seeking ai1 investigation for retaliatory
conduct (id.

,r 57);

and that Plaintiff filed a grievance, SS 60879-19 (id.

,r 44). Plaintiff believes

that no investigation was ever conducted pursuant to his complaint to Royce. (Id.

4

,r 57).

Case 7:19-cv-08942-PMH Document 50 Filed 02/17/21 Page 5 of 26

Plaintiff alleges that the Cell Search was a conspiracy by and between Capra, Royce,
Barnes, Williams, Coughlin, Badge, Quick, Gregmy, and Rodriguez, as retaliation for Plaintiff
filing grievances against prison staff and/or participating in his IGRC Rep duties. (Id.
III.

,r 45).

April 7, 2019 Disciplinaiy Hearing
The Complaint alleges that following the Cell Search, on April 7, 2019 a disciplinary

hearing was held ("Tier II Hearing"). (Id.

,r 46).

Badge, as the hearing officer, advised Plaintiff

that the NCAA bracket confiscated during the Cell Search constituted a betting slip. (Id.
47). Plaintiff maintained that he was not gambling. (Id.

,r,r 48,

,r,r 46,

49). Plaintiff alleges that Badge

deprived Plaintiff of "presenting material evidence in his defense" (id.

,r 51) in that he was only

permitted to call three witnesses to testify, and, although he was released from pre-hearing
confinement in order to procure documentaty evidence, the printer at the law libraty was not
working; he requested an assistant, but Badge denied the request (id.
alleges that the foregoing denied him of due process. (Id.

,r,r

58, 59, 63). Plaintiff

,r 69). Plaintiff alleges futther that Badge

misrepresented Plaintiffs testimony in the written disposition, thus indicating that Badge is part
of the conspiracy against Plaintiff. (Id.
Badge, SS 60844-19. (Id.

,r

64). Accordingly, Plaintiff filed a grievance against

if 51).

The Complaint alleges that Plaintiff was "found guilty" following the Tier II Hearing, and
as a result, he was required to be transfetTed from HB7 to Housing Block "B" ("HBB"). (Id.

,r,r 66,

67). Plaintiff alleges that HBB is "living torture" in that it is "hostile, violent, provocative,
threatening, lowly, anti-therapeutic, uncivil, unusual" and "the smell of drugs, K-2 and marijuana,
and cigarette smoke permeates throughout [the] housing block, subjecting all who are there to
secondhand smoke daily." (Id. at 14, n.10). He alleges fi.nther that as a result of this penalty, he

5

Case 7:19-cv-08942-PMH Document 50 Filed 02/17/21 Page 6 of 26

was deprived of his packages and commissary, which impeded access to his religious diet and
practice of his religion. (Id.

'il 70).

On April 18, 2019, Plaintiff appealed the Tier II Hearing to Capra, but "[a]s part of a
retaliatmy scheme," Capra refused to render a decision on the appeal. (Id. at 9, n.8, 'il 66). Indeed,
Plaintiff alleges that there was a conspiracy by and between Capra, Royce, Barnes, Williams, and
Bodge, "to deprive [Plaintiff] of a decision to his Tier II [Hearing] Appeal ... as paii of the
conspiracy to prevent [Plaintiffs] privileges from being restored, and to keep him housed in
[HBB]." (Id.
IV.

'i! 66).

Bodge Verbal Abuse
Plaintiff alleges that on April 16, 2019, Bodge threatened Plaintiff, saying he has "Niggers

like [Plaintiff] lynched." (Id.

ii 65). He alleges fmiher that at some unidentified time, Bodge cursed

at Plaintiff, calling him "a fucking scmnbag." (Id.). Accordingly, Plaintiff filed a grievance, SS
60867-19. (Id.). Plaintiff alleges that, on May 22, 2019, Bodge verbally abused Plaintiff again by
using profanity and racial epithets. (Id.

'il 73).

STANDARD OF REVIEW

A Rule 12(b)(6) motion enables a court to dismiss a complaint for "failure to state a claim
upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). "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."' Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell At/. Corp. v.

Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible on its face "when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged." Id. (citing T,vombly, 550 U.S. at 556). "The plausibility standard is
not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant
6

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has acted unlawfully." Id. (citing Twombly, 550 U.S. at 556). The factual allegations pied "must
be enough to raise a right to relief above the speculative level .... " Twombly, 550 U.S. at 555.
"When there are well-ple[d] factual allegations, a comi should assume their veracity and
then determine whether they plausibly give rise to an entitlement to relief." Iqbal, 556 U.S. at 679.
Thus, the Comi must "take all well-pie[d] factual allegations as tlue, and all reasonable inferences
are drawn and viewed in a light most favorable to the plaintiff[]." Leeds v. Meltz, 85 F.3d 51, 53
(2d Cir. 1996). The presumption of truth, however, "'is inapplicable to legal conclusions,' and
'[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice."' Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (quoting Iqbal, 556
U.S. at 678 (alteration in original)). Therefore, a plaintiff must provide "more than labels and
conclusions" to show entitlement to relief. Twombly, 550 U.S. at 555.
A complaint submitted by a prose plaintiff, "however inartfully ple[d], must be held to
less stringent standards than formal pleadings drafted by lawyers .... " Estelle v. Gamble, 429
U.S. 97, 106 (1976) (quoting Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (internal quotation
marks omitted)). Because prose plaintiffs "'are often unfamiliar with the formalities of pleading
requirements,' courts must 'apply a more flexible standard in determining the sufficiency of a pro
se [complaint] than they would in reviewing a pleading submitted by counsel."' Smith v. US. Dep 't
of Justice, 218 F. Supp. 2d 357, 361 (W.D.N.Y. 2002) (quoting Platsky v. Cent. Intelligence
Agency, 953 F.2d 26, 28 (2d Cir. 1991) (alteration in original)). While "[p]ro se complaints are
held to less stringent standards than those drafted by lawyers, even following Twombly and Iqbal,"
dismissal is proper "where a plaintiff has clearly failed to meet minimum pleading requirements."
Thomas v. Westchester Cty., No. 12-CV-6718, 2013 WL 3357171, at *2 (S.D.N.Y. July 3, 2013)
(internal citations omitted); see also Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010) ("Even
7

Case 7:19-cv-08942-PMH Document 50 Filed 02/17/21 Page 8 of 26

in a pro se case ... 'although a court must accept as true all of the allegations contained in a
complaint, that tenet is inapplicable to legal conclusions, and threadbare recitals of the elements
of a cause of action, suppo1ted by mere conclusory statements, do not suffice."' (quoting Harris,
572 F.3d at 72)).
Therefore, while the Comt must "draw the most favorable inferences that [a plaintiffs]
complaint supports, [it] cannot invent factual allegations that [a plaintiff] has not pied." Chappius,
618 F.3d at 170. The Court has also a duty to interpret "the pleadings of a prose plaintiff liberally
and interpret them 'to raise the strongest arguments that they suggest."' McPherson v. Coombe,
174 F.3d 276, 280 (2d Cir. 1999) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)).

ANALYSIS
I.

Failure to State a Claim Under 42 U.S.C. §§ 1981, 1983, and 1985
Plaintiff broadly asse1ts claims for relief under 42 U.S.C. §§ 1981, 1983, and 1985

involving: (1) a violation of the Eighth Amendment (in connection with the assault by Franco); (2)
a violation of the Fomth Amendment (in connection with the Cell Search); (3) the deprivation of
procedural due process under the Fourteenth Amendment (in connection with the Tier II Hearing);
(4) retaliation in violation of his First Amendment rights (in connection with being an IGRC Rep
and/or filing grievances against prison staff); and (5) a conspiracy to violate Plaintiffs
constitutional rights in retaliation for his filing grievances. Plaintiff appears also to assert claims
involving a violation of his First Amendment right to free exercise of religion and violation of the
Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc et seq. ("RLUIPA").
A. Plaintiffs Claims Under 42 U.S.C. § 1981

With respect to§ 1981, a plaintiff must allege facts to support the following elements: (1)
that he is a member of a racial minority; (2) the defendants' intent to discriminate on the basis of
8

Case 7:19-cv-08942-PMH Document 50 Filed 02/17/21 Page 9 of 26

race; and (3) discrimination concerning one of the statute's enumerated activities. Brown v. City

a/Oneonta, 221 F.3d 329,339 (2d Cir. 1999). Under§ 1981, only intentional racial discrimination
is prohibited. Id.; see also Albert v. Carovano, 851 F.2d 561 (2d Cir. 1988) ("Essential to an
allegation under Section 1981 are allegations that the defendant's acts were purposefully
discriminatory and racially motivated."). The statute's "enumerated activities" include rights "to
make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of
all the laws and proceedings for the security of persons and property." Brown, 221 F.3d at 339
(quoting 42 U.S.C. § 1981). However,"§ 1981 does not provide a separate private right of action
against state actors." Duplan v. City a/New York, 888 F.3d 612,621 (2d Cir. 2018). A claim under
§ 1983 is the exclusive federal remedy for alleged violation of rights guaranteed in 42 U.S.C. §
1981 by state governmental units or state actors. Id. at 619-21; Gonzalez v. City a/New York, 377
F. Supp. 3d 273,285 (S.D.N.Y. 2019). As all of Plaintiffs claims are asserted against employees
from DOCCS (Comp!. ,i,i 3-16), Plaintiffs claims against Defendants under§ 1981 are dismissed.
B. Plaintiffs Claims Under 42 U.S.C. § 1983
As regards Plaintiffs § 1983 claims, that law provides, in pe1iinent part, that "[e]ve1y
person who, under color of any statute ... subjects, or causes to be subjected, any citizen of the
United States ... to the deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured .... " 42 U.S.C. § 1983. "[T]his language
does not create substantive rights; rather, it creates a mechanism by which individuals can
vindicate the violation of rights secured elsewhere." Santucci v. Levine, No. 17-CV-10204, 2021
WL 76337, at *3 (S.D.N.Y. Jan. 8, 2021). As such, in each permutation of a claim under that law,
"a plaintiff must demonstrate: '(1) a right secured by the Constitution or laws of the United States
was violated, and (2) the right was violated by a person acting under color of state law, or a state
9

Case 7:19-cv-08942-PMH Document 50 Filed 02/17/21 Page 10 of 26

actor.'" To,Fn & Country Adult Living, Inc. v. Vill./Town of Mount Kisco, No. 17-CV-8586, 2019
WL 1368560, at *17 (S.D.N.Y. Mar. 26, 2019) (quoting Walker v. Clemson, No. 11-CV-9623,
2012 WL 2335865, at *3 (S.D.N.Y. June 20, 2012)).
1. Claims Against All Defendants in their Official Capacities
As an initial matter, Plaintiffs claims under 42 U.S.C. § 1983 alleged against Defendants
in their official capacities seeking money damages must be dismissed. A claim for damages
asse1ied against a state employee in his official capacity is deemed to be a claim against the state
and therefore bmTed by Eleventh Amendment sovereign immunity. Kentucky v. Graham, 473 U.S.
159, 169 (1985); Davis v. Westchester Cty. Family Court, No. 16-CV-9487, 2017 WL 4311039,
at *6 (S.D.N.Y. Sept. 26, 2017). State officials acting in their official capacities are not considered
persons within the meaning of§ 1983 and, therefore, cannot be sued for damages. See Reynolds v.
Barrett, 685 F.3d 193, 204 (2d Cir. 2012). Accordingly, to the extent Plaintiffs claims seeking

money damages are alleged against Defendants in their official capacities, they are dismissed.
2. Claims Concerning the Franco Assault (Eighth Amendment)
The Eighth Amendment instructs: "Excessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted." U.S. Const. amend. VIII. "To state an
Eighth Amendment claim, a prisoner must allege two elements, one subjective and one objective.
First, the prisoner must allege that the defendant acted with a subjectively sufficiently culpable
state of mind. Second, he must allege that the conduct was objectively harmful enough or
sufficiently serious to reach constitutional dimensions." Williams v. Novoa, No. 19-CV-11545,
2021 WL 431445, at *7 (S.D.N.Y. Feb. 5, 2021) (citing Crawford v. Cuomo, 796 F.3d 252,256
(2d Cir. 2015)); Sutton v. Rodriguez, No. 18-CV-01042, 2020 WL 5504312, at *4-5 (S.D.N.Y.

10

Case 7:19-cv-08942-PMH Document 50 Filed 02/17/21 Page 11 of 26

Sept. 8, 2020). A claim of excessive use of force must set forth allegations sufficient to demonstrate
deliberate indifference. Hayes v. NY. C. Dep 't of Corr., 84 F.3d 614, 620 (2d Cir. 1996).
As regards the objective prong, the alleged conduct must be sufficiently serious to reach
constitutional dimensions. Hogan v. Fischer, 738 F.3d 509, 515 (2d Cir. 2013). "A de minimis use
of force will rarely suffice to state a constitutional claim." Romanov. Hmvarth, 998 F.2d 101, 105
(2d Cir. 1993). "Not every push or shove, even if it may later seem unnecessary in the peace of a
judge's chambers, violates a prisoner's constitutional rights." Lebron v. Mrzyglod, No. 14-CV10290, 2019 WL 3239850, at *14 (S.D.N.Y. July 18, 2019).
The allegations in the Complaint that Franco slammed the gate on Plaintiff and it bounced
of his back (Comp!. ,i 33) are not sufficiently serious to satisfy the objective standard. Peters v.

Huttel, No. 15-CV-9274, 2019 WL 6619602 at *13 (S.D.N.Y. Dec. 5, 2019). Moreover, although
Plaintiff alleges that at some unidentified time he was examined by medical personnel before being
placed in keeplock, he does not identify any injmy suffered. (Comp!. ,i 37). Indeed, after the gate
incident, Franco permitted Plaintiff to leave HB7 and Plaintiff proceeded to his IGRC Rep
program. (Id. ,i 33). Simply put, the allegations concerning Franco's closure of the gate are the
kind of de minimus use of force that do not rise to the level of an Eighth Amendment violation.
Because the Complaint fails to satisfy the object prong, the Court need not, and does not, reach the
question of whether Plaintiff's allegations are sufficient to satisfy the subjective prong.
Accordingly, Plaintiffs Eighth Amendment claim for relief alleged against Franco 1s
dismissed for failure to state a claim.
3. Claims Concerning the Cell Search (Fourth Amendment)
The Complaint alleges that Gregory and Rodriguez, upon Williams's order, conducted the
Cell Search in violation of an internal DOCCS Directive. (Comp!. at ,i,i 42-43). A violation of a
11

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DOCCS Directive, however, does not amount to a§ 1983 claim. Hollandv. City ofNew York, 197
F. Supp. 3d 529, 548-49 (S.D.N.Y. 2016) ("It is well settled that a§ 1983 claim brought in federal
corui is not the appropriate forum to urge violations of prison regulations or state law." (internal
quotation marks omitted)); Hyman v. Holder, No. 96-CV-7748, 2001 WL 262665, at *6 (S.D.N.Y.
Mar. 15, 2001) (concluding that allegations that prison officials failed to follow prison regulations
did not state a cognizable § 1983 claim).
To the extent that Plaintiff attempts to plead a violation of the Foruih Amendment based
upon the Cell Search and confiscation of his NCAA bracket, 5 the claim must fail. The Foruih
Amendment is inapplicable to the unwarranted search of an inmate's prison cell, as inmates have
no reasonable expectation of privacy in such a place. Hudson v. Palmer, 468 U.S. 517, 526 (1984)
("[S]ociety is not prepared to recognize as legitimate any subjective expectation of privacy that a
prisoner might have in his prison cell and that, accordingly, the Foruih Amendment proscription
against unreasonable searches does not apply within the confines of the prison cell."). Accordingly,
Plaintiffs claim of a Foruih Amendment violation alleged against Williams, Gregory, and
Rodriguez in connection with the Cell Search is dismissed.
4. Claims Concerning the Tier II Hearing (Fourteenth Amendment)
The Fourteenth Amendment provides that "[n]o State shall ... deprive any person of life,
liberty, or property, without due process of law .... " U.S. Const. amend. XIV § 1. "[T]o present
a [procedural] due process claim, a plaintiff must establish ( 1) that he possessed a libe1iy interest
and (2) that the defendant(s) deprived him of that interest as a result of insufficient process."

5

Plaintiff states in his opposition that he is not pressing claims against Gregory and Rodriguez for the Cell
Search, but rather describes the Cell Search as pait of a narrative to describe the retaliatory conduct of
which he complains. (Pl. Opp'n at 2).

12

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Joseph v. Cuomo, No. 20-CV-3957, 2021 WL 200984, at *6 (E.D.N.Y. Jan. 20, 2021) (quoting
Adams v. Annucci, No. 17-CV-3794, 2018 WL 4608216, at *6 (S.D.N.Y. Sept. 25, 2018)
(alterations in original)); see also Velazquez v. Gerbing, No. 18-CV-8800, 2020 WL 777907, at *9
(S.D.N.Y. Feb. 18, 2020).
Plaintiff alleges that in connection with the Tier II Hearing, he was subjected to a nine-day
pre-hearing confinement, transferred to HBB, and lost commissary and packages privileges.
(Comp!.

,r,r

59, 66, 70). These allegations fail to establish the existence of a constitutionally

significant liberty interest deprivation.
A prisoner's liberty interest is implicated by prison disciplinaty proceedings only if the
discipline imposes "atypical and significant hardship on the inmate in relation to the ordinmy
incidents of prison life." Sandin v. Conner, 515 U.S. 472,484 (1995); Washington v. Ajijy, 681 F.
App'x 43, 45 (2d Cir. 2017). Indeed, dismissal has been found appropriate where the period of
confinement in relation to disciplinmy hearings is shorter than 101 days. Washington, 681 F. App'x
at 45; see also Barnes v. Starks, No. 95-CV-4891, 1996 WL 648956, at *3 (S.D.N.Y. Nov. 6, 1996)
(no protected liberty interest in Sing Sing inmate's twenty-one-day confinement in keeplock);
Camacho v. Keane, No. 95-CV-0182, 1996 WL 204483, at *2 (S.D.N.Y. Apr. 25, 1996) (no
protected liberty interest in Sing Sing inmate's forty-day confinement in keeplock); Schmelzer v.
Norfleet, 903 F. Supp. 632, 634 (S.D.N.Y. 1995) (no protected liberty interest in Sing Sing
inmate's eleven-day confinement in keeplock).
Moreover, the transfer to HBB and temporary loss of the various privileges alleged in this
case, namely packages and commissary, does not represent the type of deprivation which could
reasonably be viewed as imposing atypical and significant hardship on an inmate. Frazier v.
Coughlin, 81 F.3d 313, 315, 317 (2d Cir. 1996) (loss of commissa1y, recreation, package, and
13

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telephone privileges did not amount to an atypical and significant deprivation); Nogueras v.

Coughlin, No. 94-CV-4094, 1996 WL 487951, at *5 (S.D.N.Y. Aug. 27, 1996) ("RestTictions on
telephone use, recreational activities, access to law libraries, visitation, personal prope1iy,
educational and employment opportunities" did not amount to atypical hardship.).
Because Plaintiff has not alleged plausibly that he possessed a libe1iy interest, Plaintiffs
claim against Defendants for a violation of the Fourteenth Amendment in Connection with the Tier
II Hearing are dismissed.
5. Claims of Retaliation (First Amendment)
"[T]o 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." Randle v. Alexander, No. 10-CV-9235, 2011 WL 1226228, at *2
(S.D.N.Y. Mar. 22, 2011) (quoting Gill v. Pidlypchak, 389 F.3d 379, 380 (2d Cir. 2004)). An
action is "adverse" when it "would deter a similarly situated individual of ordinaiy firmness from
exercising his or her constitutional rights .... " Ruggiero v. Cty. of Orange, No. 19-CV-3632, 2020
WL 5096032, at *7 (S.D.N.Y. Aug. 28, 2020) (quoting Davis v. Goard, 320 F.3d 346,353 (2d Cir.
2003)). Conduct short of this standard is "simply de minimis and ... outside the ambit of
constitutional protection." Id. (quoting Davis, 320 F.3d at 353). Likewise, under the third element,
the "allegations must support an inference that the protected conduct was 'a substantial or
motivating factor for the adverse actions taken by prison officials."' Dorsey v. Fisher, 468 F.
App'x 25, 27 (2d Cir. 2012) (quoting Bennettv. Goard, 343 F.3d 133, 137 (2d Cir. 2003)). Bearing
in mind that "[c]omis properly approach prisoner retaliation claims with skepticism and particular
care[] because vi1iually any adverse action taken against a prisoner by a prison official ... can be
14

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characterized as a constitutionally proscribed retaliat01y act," Davis, 320 F.3d at 352 (internal
quotation marks omitted), "[c]onclus01y allegations will not suffice; instead, a prisoner's claim for
retaliation must be supported by specific and detailed factual allegations." Voge/fang v. Capra,
889 F. Supp. 2d 489,517 (S.D.N.Y. 2012) (internal quotation marks omitted).
"[T)o the extent Plaintiff alleges that the roots of [Defendants'] retaliation are found in
Plaintiff's IGRC position, such conduct, liberally construed, constitutes protected activity."

Thomas v. DeCastro, No. 14-CV-6409, 2019 WL 1428365, at *8 (S.D.N.Y. Mar. 29, 2019).
Likewise, his filing of grievances is a protected activity under the First Amendment, Davis, 320
F.3d at 353, which Defendants do not dispute. (Defs. Br. at 13-14). Accordingly, Plaintiff meets
the first element of a retaliation claim.
Plaintiff alleges that in retaliation for his engagmg in these protected activities, the
following adverse actions were taken against him: (1) the assault by Franco; (2) Franco's MBR;
(3) the Cell Search; (4) the Tier II Hearing; (5) the refusal to decide his appeal of the Tier II
Hearing; (6) the verbal abuse by Badge; and (7) Plaintiff's removal as IGRC Rep. (See generally
Comp!.; Deel.). The Court analyzes each in turn.
a. Franco Assault
Plaintiff alleges that Franco is a member of The Brotherhood, does not like any prisoner
who possesses an IGRC pass, and has "a deep hatred for Blacks, prisoners in general, and white
prisoners who are sympathetic or friendly to non-white prisoners." (Comp!.

i! 28). Plaintiff seeks

to link the August 2, 2018 gate incident, which Plaintiff characterizes as an assault, to Franco's
alleged disdain for IGRC Reps. (Id.~ 41; Deel. 7, 10-11).
As an initial matter, as discussed supra, the alleged assault as pied by Plaintiff constitutes

de minimus harm and is thus not actionable as a retaliation claim. Rivera v. Goard, 119 F. Supp.
15

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2d 327, 340 (S.D.N.Y. 2000) (dismissing retaliation claim against defendant who "shoved" an
inmate on the ground that the harm was de minimis). The Complaint also fails to allege sufficiently
a causal connection between Franco's act and Plaintiffs protected conduct as an IGRC Rep.
Plaintiffs allegations that Franco generally dislikes prisoners, and IGRC Reps in particular, are
insufficient to support an inference that the protected conduct was a substantial or motivating
factor for the alleged adverse action of slamming the gate on Plaintiff such that it bounced off his
back. Dorsey, 468 F. App'x at 27. Moreover, Plaintiff also pleads that he held the gate open, and
Franco permitted Plaintiff to go to his program as IGRC Rep "a short while after." (Comp!.

,r,r 33-

34). Plaintiffs allegations are insufficient to show Franco's retaliatory intent, and accordingly, to
the extent Plaintiff claims the Franco assault occurred in retaliation for Plaintiffs status as an
IGRC Rep, the claim is dismissed.
To the extent Plaintiff claims the Franco assault occurred in retaliation for filing
grievances, this claim too must fail. Plaintiffs grievance against Franco, SS 59891-18, was filed
after the gate incident. (Id.

,r

35). The alleged retaliatory event cannot precede the protected

activity. See Lees v. Graduate Center, City Univ. of New York, 696 Fed. App'x 530, 531 (2d Cir.
2017) (dismissal affirmed because an inference of retaliation does not arise where the adverse
action began before the Plaintiff engaged in any protected activity); Santucci, 2021 WL 76337, at
*7 (dismissing retaliation claim where plaintiffs' "after-the-fact complaints" occurred subsequent
to the alleged retaliatmy event); Montgomery v. Strack, No. 86-CV-3380, 1990 WL 128904 at *3
(S.D.N.Y. Aug. 27, 1990) (plaintiffs removal from the job in the law library could not have been
in retaliation for complaints filed where the removal occurred before the complaints were filed);
Thompson v. Racette, No. 11-CV-1372, 2012 WL 12884469, at *3 (N.D.N.Y. Aug. 2, 2012)

16

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(dismissing inmate's retaliation claim where grievance was filed three months after the alleged
retaliatory conduct), aff'd, 519 F. App'x 32 (2d Cir. 2013) (summary order).
Accordingly, Plaintiffs allegations of retaliation against Franco in connection with the
purported assault are dismissed.
b. Franco MBR
On a First Amendment retaliation claim, "[ c]ircumstantial evidence of causation may exist
where the adverse action occurs soon after the protected activity." Mateo v. Fischer, 682 F. Supp.
2d 423,435 (S.D.N.Y. 2010). Plaintiff pleads that Franco filed the MBR on August 4, 2018, two
days after Plaintiff filed his grievance against Franco (Comp!.

~ii 38-40), and as a result of the

MBR, Plaintiff was placed in keeplock for eight days. (Id.~ 40). This strikes this Court as closely
proximate in time, and Defendants do not argue otherwise.
Accordingly, Plaintiffs retaliation claim against Franco for filing the MBR will survive
dismissal.
c. Cell Search
Plaintiff alleges that the Cell Search conducted by Gregory and Rodriguez pursuant to
Williams's order was retaliation by Capra, Royce, Barnes, Williams, Coughlin, Bodge, Quick,
Gregory, and Rodriguez, for Plaintiffs filing of grievances and/or paiticipating in his IGRC Rep
duties. (Id.

~

45). Courts in this district have concluded that a retaliatory cell search is insufficient

to support a First Amendment retaliation claim. See Adeghe v. Westchester Cty., No. 18-CV-7912,
2019 WL 4142470, at *4 (S.D.N.Y. Aug. 30, 2019) (a retaliatory cell search alone is not a
cognizable adverse action); Salahuddin v. Mead, No. 95-CV-8581, 2002 WL 1968329, at *5
(S.D.N.Y. Aug. 26, 2002) (cell seai-ch cannot supp01i retaliation claim); Walker v. Keyser, No. 98CV-5217, 2001 WL 1160588, at *9 (S.D.N.Y. Oct. 2, 2001) ("[R]etaliatory searches are not
17

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actionable under§ 1983"), as amended (Oct. 17, 2001), aff'd sub nom. Walker v. Goard, 131 F.
App'x 775 (2d Cir. 2005).
Accordingly, Plaintiff's allegations of retaliation in connection with the Cell Search are
dismissed.
d. Tier II Hearing
Plaintiff alleges that he Tier II Hearing was conducted on an MBR that was lodged against
him as a result of the Cell Search. (Comp!.

il1 43, 46, 52). He maintains that Bodge used the tier

hearing system and misrepresented Plaintiff's testimony at the hearing in the written disposition
in retaliation for Plaintiff's status as an IGRC Rep and/or his filing of grievances against prison
staff. (Id.

ii 64; PL Opp'n at 3). The Complaint fails to sufficiently allege a causal connection

between the alleged adverse action and Plaintiff's protected conduct. Dorsey, 468 F. App'x at 27.
Plaintiff's claims against Bodge in connection with the Tier II Hearing are speculative and
conclusory, and are simply insufficient to support the inference that Plaintiff's status as an IGRC
Rep or his filing of grievances were a substantial or motivating factor for the conclusory allegations
of "falsification" in the written disposition. Accordingly, Plaintiff's retaliation claims against
Bodge in connection with the Tier II Hearing are dismissed.
e. Capra's Refusal to Decide the Appeal of the Tier II Hearing
Plaintiff alleges that Capra refused to decide his appeal of the results of the Tier II Hearing,
which was "retaliatory strategy" by Capra, Royce, Barnes, Williams, and Badge to prevent
Plaintiffs privileges from being restored, and to keep him housed in HBB. (Comp!. 166). Plaintiff
alleged that he grieved such failure and that a DOCCS Committee agreed that the appeal was
untimely, but there is no provision to reverse or expunge a guilty disposition as a result of an
untimely appeal decision. (Id. 169; PL Opp'n at 62-63).
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That Capra did not issue a decision in accordance with prison policies does not rise to a
constitutional violation. A § 1983 claim brought in federal court is not the appropriate forum to
raise violations of prison regulations or state law. Holland, 197 F. Supp. 3d at 548-49; Hyman,
2001 WL 262665, at *6. As regards the other Defendants implicated by Plaintiffs allegations
concerning Capra's failure to timely decide the appeal to allegedly prevent Plaintiffs privileges
from being restored, and keeping him housed in HBB, Plaintiff fails to sufficiently allege personal
involvement. "Failing to allege that a defendant was personally involved in, or responsible for, the
conduct complained of renders a complaint fatally defective on its face." Williams, 2021 WL
431445, at *6. Plaintiffs sole allegation against these other Defendants is that Barnes allegedly
told Plaintiff that neither he, Capra, Royce or Williams wanted to decide the appeal. (Comp!. ,i
69). There is no allegation concerning Badge's involvement at all, and the allegation against the
other Defendants does not adequately allege any personal involvement in Capra's failure to timely
render a decision. To the extent Plaintiff claims that Capra's failure to timely decide the appeal
was done in retaliation for Plaintiff being an IGRC Rep or filing grievances against prison officials,
Plaintiff fails to allege a causal connection between the alleged adverse action and Plaintiffs
protected conduct, alleging the ultimate fact ofretaliation in a speculative and conclusory manner.

Dorsey, 468 F. App'x at 27.
Plaintiffs allegations against Capra, Royce, Barnes, Williams, and Badge in connection
with Capra's failure to timely decide Plaintiffs appeal of the Tier II Hearing areinsufficient to
establish retaliation and are accordingly dismissed.
f.

Badge's Verbal Abuse

Verbal abuse, no matter how repugnant, does not give rise to a constitutional violation
because 42 U.S.C. § 1983 is not designed to rectify harassment or verbal abuse but specific
19

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constitutional violations. Purcell v. Coughlin, 790 F.2d 263, 265 (2d Cir. 1986) (dismissing inmate
Purcell's complaint because the name calling claim did not allege a constitutional violation).
Insulting or disrespectful comments directed at an inmate generally do not rise to the level of an
adverse action sufficient to constitute First Amendment violation. Davis, 320 F.3d at 353.
Plaintiffs claims of retaliatmy verbal abuse by Bodge (Comp!. ,i,i 65, 73) do not include any
allegations of physical harm, nor are they alleged with any specificity to suggest that they would
deter a prisoner of ordinary firmness from exercising his constitutional rights. Dorsey, 468 F.
App'x at 27. Accordingly, Plaintiffs retaliation claim against Bodge in connection with the alleged
verbal abuse is dismissed.
g. Removal as IGRC Rep
Plaintiff was removed as an IGRC Rep by Quick, and Plaintiff contends that it was because
he filed grievances against prison staff and with a motivation to replace him with a Muslim inmate.
(Id. ,i,i 75, 79). Plaintiff alleges that he was removed on April 19, 2019 (id. ,i 72) but was apparently
reinstated thereafter, as he was removed again on July 12, 2019 (id. ,i 75). He alleges that on July
15, 2019 he filed grievances about his removal and complained to Capra, Barnes, Mallozzi, and
Loren, but they "failed to do anything to grant [Plaintiff] the relief he was required." (Id.).
Plaintiffs allegations that Quick, as the Inmate Grievance Program Supervisor, retaliated against
Plaintiff because of his status as an IGRC Rep are purely speculative and conclusory. "Where, as
here, the plaintiff alleges the ultimate fact of retaliation in a conclusory and speculative manner,
he fails to state a claim for retaliation." Dorsey, 468 F. App'x at 27.
Plaintiffs allegations against Capra, Barnes, Mallozzi, and Loren for failing to grant the
reliefrequested in his grievance similarly fail to allege any retaliatory motive. There is no federal
or constitutional right to an inmate grievance review process. See e.g., Gilbert v. Goard, No. 0320

Case 7:19-cv-08942-PMH Document 50 Filed 02/17/21 Page 21 of 26

CV-423, 2007 WL 3232273, at *6 (N.D.N.Y. Oct. 31, 2007) ("Because the [inmate] grievance
procedures are not constitutionally required, a state's violation of those procedures or its failure to
enforce them does not give rise to a claim under section 1983."). To the extent Plaintiff seeks to
hold these supervisory defendants liable for actions by Quick, they too fail, as respondeat superior
is not a basis for liability under§ 1983. See Blyden v. Mancusi, 186 F.3d 252,264 (2d Cir. 1999);

see also Malik v. City of New York, No. 11-CV-6062, 2012 WL 3345317, at *15 (S.D.N.Y. Aug.
15, 2012) (complaint to jail superintendent was "insufficient to make out a prima facie claim of
personal involvement against supervisors"), adopted by 2012 WL 4475156 (S.D.N.Y. Sept. 28,
2012). Instead, a plaintiff seeking to hold a supervisory defendant liable pursuant to § 1983 must
allege personal involvement by the defendant. Tangreti v. Bachmann, 983 F.3d 609,618 (2d Cir.
2020) (noting that supervisory liability requires that the "defendant, through the official's own
individual actions, has violated the Constitution" (quoting Iqbal, 556 U.S. at 676)); Colon v.

Coughlin, 58 F.3d 865, 873 (2d Cir. 1995). The complaint herein fails to establish a basis for
supervisory liability.
In any event, the grievance upon which this retaliation is allegedly based was filed in
response to Plaintiffs removal, and, as discussed above, is therefore not actionable retaliation.

Lees, 696 F. App'x at 531; Santucci, 2021 WL 76337, at *7. Accordingly, Plaintiffs claim that
Quick, Capra, Barnes, Mallozzi, and Loren retaliated against him through Quick's termination of
his status as an I G RC Rep is dismissed.

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6. Claims of§ 1983 Conspiracy
Plaintiff alleges that most 6 of the retaliatory events discussed supra, were conspiracies
among various Defendants. To the extent Plaintiffs conspiracy claims are alleged under § 1983,
in order to survive a motion to dismiss, the claim must allege facts plausibly suggesting that (1) an
agreement existed between two or more state actors to act in concert to inflict an unconstitutional
injury on plaintiff, and (2) an ove1i act was committed in fmiherance of that goal. Ciambriello v.

Cty. of Nassau, 292 F.3d 307, 324-25 (2d Cir. 2002); see also Concepcion v. City of New York,
No. 05-CV-8501, 2008 WL 2020363, at *5 (S.D.N.Y. May 7, 2008) (affirming the continued
viability of the Ciambriello standards when analyzing a conspiracy claim vis-a-vis a motion to
dismiss). The plaintiff must not only allege a conspiracy, but he must also allege the "actual
deprivation of constitutional rights." Romer v. Morgenthau, 119 F. Supp. 2d 346, 363-64
(S.D.N.Y. 2000) (citing Maish v. Austin, 901 F. Supp. 757, 765 (S.D.N.Y. 1995)). "Thus, if a
plaintiff cannot sufficiently allege a violation of his rights, it follows that he cannot sustain a claim
of conspiracy to violate those rights." Id.; see also Vega v. Artus, 610 F. Supp. 2d 185, 202-03
(N.D.N.Y. 2009).
As discussed supra, Plaintiff has failed to allege plausibly a violation of his Fomih, Eighth,
and Fomieenth Amendment rights; and only his First Amendment retaliation claim in connection
with the MBR lodged by Franco is held herein to survive Defendants' instant motion. 7 Thus, any

6

The only retaliatory events alleged by Plaintiff that are not pied to have been conspiracies were the
purpotted assault by Franco, the Tier II Hearing, and the verbal abuse by Bodge.

7

Plaintiff alleges in the Complaint that the "fraudulent and retaliatory penalty imposed" by Bodge deprived
Plaintiff "of his packages and commissary, which deprived him of practicing his Religious diet[],
compelling [Plaintiff] to change and/or modify his Religious practices" and "thereafter changed his
Religion and deprived [him] of [his] ability to represent his fellow prisoners." (Comp!. at 70, 88).
Defendants did not make any arguments in their Memorandum of Law concerning dismissal of Plaintiff's
allegations of violations of the free exercise clause of the First Amendment and RLUIPA. "[I]t is not this
22

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conspiracy claims alleged by Plaintiff in connection with the dismissed constitutional claims are
likewise dismissed. Romer, 119 F. Supp. 2d at 363-64.
Plaintiffs allegation concerning a conspiracy in connection with the August 4, 2018 MBR
lodged by Franco was simply that it was paii of a conspiracy by "multiple officials" in retaliation
for having filed a grievance against Franco. (Comp!. ,i,i 38, 39). He does not identify the members
of this conspiracy, the goals of this conspiracy, or when the conspiracy took place. As regards
Plaintiffs claims of a violation of the free exercise clause of the First Amendment and RLUIPA,
the Court notes that Plaintiff has specifically identified Bodge, Capra, Royce, Barnes, and
Williams as conspiring to deprive Plaintiff of practicing his religion. Standing alone, Plaintiff has
failed to adequately allege a conspiracy that rises beyond the speculative level. Stated simply, the
Comi has reviewed the Complaint and finds that it does not contain any factual allegations to
support a plausible§ 1983 conspiracy claim involving any Defendant. Accordingly, any claim of
§ 1983 conspiracy is dismissed.

C. Plaintiffs Claims of Conspiracy Under 42 U.S.C. § 1985
Plaintiff indicates that his action is also brought under 42 U.S.C. § 1985. That law provides,
in pertinent part:
If two or more persons in any State or Territory conspire ... for the
purpose of depriving ... any person or class of persons of the equal
protection of the laws, or of equal privileges and immunities under
the laws ... [and] do, or cause to be done, any act in furtherance of
the object of such conspiracy, whereby another is injured in his
person or property, or deprived of having and exercising any right
or privilege of a citizen of the United States, the party so injured ..
. may have an action for the recovery of damages occasioned by
such injury or deprivation ...

Comt's responsibility to raise and make counsel's arguments for them." Moore v. Peters, 92 F. Supp. 3d
109, 126 (W.D.N.Y. 2015).

23

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42 U.S.C. § 1985(3). Like § 1983, § 1985 "provides no substantive rights itself but merely
'provides a remedy for violation of the rights it designates.'" Spencer v. Casavilla, 903 F.2d 171,
174 (2d Cir. 1990) (quoting Great Am. Fed. Sav. & Loan Ass'n v. Novotny, 442 U.S. 366, 372
(1979)).
The language of 42 U.S.C. § 1985(3), requiring intent to deprive of equal protection of the
laws, means that "the conspiracy must ... be motivated by 'some racial or perhaps otherwise classbased, invidious discriminatory animus behind the conspirators' action."' Odermatt v. Way, 188
F. Supp. 3d 198,217 (E.D.N.Y. 2016) (citing Mian v. Donaldson, Liifkin & Jenrette Secs. Corp.,
7 F.3d 1085, 1088 (2d Cir. 1993)), qff'd sub nom. Odermatt v. New York City Dep 't of Educ., 694
F. App'x 842 (2d Cir. 2017). "Conclusory allegations of conspiracy are not sufficient to state a
claim under§ 1985." A 'Gard v. Perez, 919 F. Supp. 2d 394, 409 (S.D.N.Y. 2013). A plaintiff
"must provide some factual basis supporting a meeting of the minds, such that defendants entered
into an agreement, express or tacit, to achieve the unlawful end." Webb v. Goard, 340 F.3d 105,
110 (2d Cir. 2003). Plaintiffs fleeting mention of "racial or other class-based discriminatory
animus" required for a § 1985 conspiracy claim is insufficient to state such a claim; and Plaintiff
has not alleged, except in the most conclusmy fashion, that any meeting of the minds occurred
among any or all of the Defendants. His conspiracy allegations under § 1985 therefore, too, must
fail. 8

Defendants also request, in their Memorandum of Law in suppmt, that the Complaint be dismissed for
failure to comply with Federal Rule of Civil Procedure 8(a)(2), which requires a pleading contain short and
plain statements of the claim. (Defs. Br. at 7, 11 ). "[I]t is improper to asse1t in a memorandum of law a
legal basis for the motion that was not specified in the notice of motion." IO.B. Realty, Inc. v. Patsy's
Brand, Inc., No. 19-CV-2776, 2020 WL 5518230, at *2, n.2 (S.D.N.Y. Sept. 13, 2020). Given the
conclusions reached herein, the Comt need not and does not reach that basis for dismissal.

8

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II.

Plaintiffs Request for Sanctions Against Defendants
In his opposition brief, Plaintiff purports to move for sanctions against Defendants under

Federal Rule of Civil Procedure 11, stating that "defendants should be sanctioned accordingly for
filing a frivolous motion, wasting the Comi's time, creating delay tactics and fabricating facts to
avoid dealing with the real issues .... It is obvious that defendants['] motion was filed for no
purpose other than to harass, cause um1ecessary delay, or needlessly increase the cost of litigation."
(Pl. Opp'n at 1-2). This is an unsupported and unfair characterization. In any event, a motion for
Rule 11 sanctions must be brought in a separate motion, which must be served but not filed or
presented to the Court before the other party has had twenty-one days to withdraw the allegedly
offending pleading or correct the allegedly offending conduct. Fed. R. Civ. P. ll(c)(2). Plaintiff
did not follow this procedure. His request for Rule 11 sanctions is itself defective and is denied.

See Viruet v. City of New York, No. 16-CV-8327, 2019 WL 1979325, at *18 (S.D.N.Y. May 3,
2019).
CONCLUSION

Based upon the foregoing, Defendants' motion to dismiss pursuant to Rule 12(b)(6) is
GRANTED in part. The Comi dismisses Plaintiffs claims under 42 U.S.C. § 1981; his claims
under 42 U.S.C. § 1983 alleging violations of the Eighth, Fourth, and Fourteenth Amendments;
and his claims under 42 U.S.C. §§ 1983 and 1985 alleging conspiracy. While "[d]istrict courts
should frequently provide leave to amend before dismissing a prose complaint ... leave to amend
is not necessary when it would be futile." Reedv. Friedman Mgt. Corp., 541 F. App'x 40, 41 (2d
Cir. 2013) (citing Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000)). For all the reasons
described herein, the Court dismisses the foregoing claims alleged in Plaintiffs Complaint with
prejudice as any amendment would be futile.
25

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Plaintiff's claims under 42 U.S.C. § 1983 for retaliation in violation of the First
Amendment are all likewise dismissed with prejudice, except his retaliation claim against Franco
for filing the MBR which shall proceed to discovery. Plaintiffs claim under 42 U.S.C. § 1983
against Bodge alleging a violation of the free exercise clause of the First Amendment and RLUIPA
shall proceed to discovery as well.
Plaintiffs request for sanctions is DENIED.
The remaining Defendants, Franco and Badge, are directed to file an Answer to the
Complaint by March 10, 2021. The Court will thereafter docket a Notice of Initial Conference.
The Clerk of the Court is respectfully directed to terminate the motion (Doc. 46); to
terminate as Defendants Quandera Quick, Salvatore P. Gregory, D. Rodriguez, S.A. Coughlin, R.
Williams, Michael Barnes, Michael Capra, Mark Royce, Shelley Mallozzi, and Rebecca A. Loren;
and to mail a copy of this Memorandum Opinion and Order to Plaintiff.
SO ORDERED:

Dated:

New York, New York
February 17, 2021
PHILIP M. HALPERN
United States District Judge

26