Amaker v. Fischer et al
Filing
45
DECISION AND ORDER granting 27 Motion to Dismiss for Failure to State a Claim; granting in part and denying in part 43 Motion to Amend or Correct; granting in part and denying in part 44 Motion to Amend or Correct; granting 7 Motion to Dis miss. Plaintiff shall file an amended complaint, which sets forth the factual allegations supporting his first cause of action only, on or before May 20, 2013. The case is referred back to Magistrate Judge Schroeder for further proceedings. Signed by Hon. Richard J. Arcara on 3/25/2013. (JMB)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
ANTHONY AMAKER,
Plaintiff,
v.
DECISION AND ORDER
10-CV–464
BRIAN S. FISCHER, ET AL.,
Defendants.
The instant case involving causes of action pursuant to 42 U.S.C. §1983
(“Section 1983") was referred to Magistrate Judge H. Kenneth Schroeder, Jr.
pursuant to 28 U.S.C. §636(b)(1). Plaintiff, who is proceeding pro se, is asserting
constitutional violations arising from incidents that occurred during his
incarceration at Wende Correctional Facility. Defendants filed motions to dismiss
Plaintiff’s complaint pursuant Federal Rules of Civil Procedure 12(b)(1) and
12(b)(6). (Dkt. Nos. 7 and 27)
On September 29, 2011, Magistrate Judge Schroeder issued a Report,
Recommendation and Order recommending that Defendants’ motions to dismiss
be granted. (Dkt. No. 34) Specifically, Magistrate Judge Schroeder found: (1)
that Plaintiff had failed to allege a viable claim under the Eighth Amendment since
he was never actually subjected to double bunking in violation of Defendants’
policy; (2) that Plaintiff could not state a claim for excessive force since his
complaint did not allege any physical contact during the incident in which he
objected to double bunking and was placed in the special housing unit (“SHU”);
(3) that Plaintiff cannot state a due process claim since he was found not guilty at
the disciplinary hearing; (4) that Plaintiff’s allegations that Defendants
intentionally pulled Plaintiff’s dreadlocks during the course of a frisk and forcefully
threw Plaintiff into his cell do not rise to the level of a constitutional violation since
the Eighth Amendment does not apply to claims of de minimis physical force; and
(5) that Plaintiff’s allegations of retaliatory transfer were conclusory and failed to
state a claim upon which relief may be granted. Id.
On January 12, 2012 Plaintiff filed objections to Magistrate Judge
Schroeder’s Report and Recommendation. (Dkt. No. 39) Defendants filed a
response to Plaintiff’s objections on February 1, 2012. (Dkt. No. 41) On March 8,
2012, Plaintiff filed a request for an extension of time to submit a response to
Defendants’ objections. (Dkt. No. 42) On April 25, 2012, Plaintiff submitted a
reply to Defendants’ response to Plaintiff’s objections as well as a proposed
amended complaint. (Dkt. Nos. 43 and 43-1) On October 31, 2012, Plaintiff filed
a request asking this Court to consider the proposed amended complaint, which
he had submitted along with his objections on April 25, 2012. (Dkt. No. 44)
Pursuant to 28 U.S.C. §636(b)(1), this Court must make a de novo
determination of those portions of the Report and Recommendation to which
objections have been made. Upon a de novo review, and after reviewing the
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submissions from the parties, the Court hereby adopts Magistrate Judge
Schroeder’s recommendation granting Defendants’ motions to dismiss Plaintiff’s
initial complaint dated June 7, 2010.
Because Plaintiff is proceeding pro se, the Court will treat Plaintiff’s April
25, 2012 and October 31, 2012 submissions as a motion to amend his complaint
pursuant Federal Rule of Civil Procedure 15, and will treat the allegations in
Documents 43 and 43-1 as Plaintiff’s proposed amendments.
Plaintiff is beyond the time period within which he may amend his
complaint as a matter of course. However, Rule 15 provides that, in all other
cases, “a party may amend its pleading only with the opposing party’s consent or
the court’s leave.” See Fed. R. Civ. Pro. 15(a)(2). Rule 15 also instructs that “the
Court should freely give leave where justice so requires.” Id. The Second Circuit
has held that a court, “should not dismiss [a pro se complaint] without granting
leave to amend at least once when a liberal reading of the complaint gives any
indication that a valid claim might be stated.” Branum v. Clark, 927 F.2d 698 (2d.
Cir. 1991); Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d. Cir. 1999).
With respect to Plaintiff’s second and third causes of action, the Court finds
that an amendment would be futile. Plaintiff offers no new allegations as to his
Eighth Amendment claim arising from Defendants’ pulling his dreadlocks and
forcefully throwing him into his cell. Thus, for the reasons set forth in Magistrate
Judge Schroeder’s Report, Recommendation and Order, Plaintiff’s request to
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amend his second cause of action is denied.
As to Plaintiff’s third cause of action, Plaintiff alleges, for the very first time,
that he was transferred to Southport Correctional Facility on February 16, 2010,
“only 2 weeks after filing a lawsuit against both defendants Fischer and LeClaire.”
(Dkt. No. 43) Even if the Court were to find that these allegations demonstrated a
causal connection, Plaintiff has still failed to plead a cause of action for retaliatory
transfer since he has alleged no specific facts suggesting that defendants Fischer
or LeClaire were personally involved in the decision to transfer him. See Wright
v. Smith, 21 F.3d 496, 501 (2d. Cir. 1994) (personal involvement of defendants in
an alleged constitutional deprivation is a prerequisite to an award of damages
under Section 1983); Black v. Coughlin, 76 F.3d 72, 74 (2d. Cir. 1996)
(supervisory officials may not be held liable under Section 1983 merely because
they held a position of authority). Thus, for the reasons set forth in Magistrate
Judge Schroeder’s Report, Recommendation and Order, and for the reasons
stated herein, Plaintiff’s request to amend his third cause of action is also denied.
Finally, Plaintiff contends that he should be permitted to amend his first
cause of action because, since the filing of his initial complaint, he has learned
that Defendant Kearney conducted a disciplinary hearing against Plaintiff, in
Plaintiff’s absence. Plaintiff alleges that this disciplinary hearing resulted in
Plaintiff spending six months of disciplinary confinement in SHU or keeplock.
Plaintiff alleges that he was denied the right to appear at his own disciplinary
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hearing, call witnesses and present evidence on his own behalf, and timely
appeal from the hearing determination. These factual allegations were not
asserted in Plaintiff’s initial complaint.
The Fourteenth Amendment to the Constitution provides that “no state
shall...deprive any person of life, liberty, or property, without due process of law.”
U.S. Const. Amend. XIV, §1. Although an inmate’s liberty interest is severely
curtailed while incarcerated, they are “nevertheless entitled to certain procedural
protections when disciplinary actions subject them to further liberty deprivations
such as loss of good-time credit or special confinement that imposes an atypical
hardship.” Wolff v. McDonnell, 418 U.S. 539, 555-56 (1974). The procedural due
process protections afforded to inmates include: advance written notice of the
charges against them, a hearing affording the inmate a reasonable opportunity to
call witnesses and present documentary evidence, a fair and impartial hearing
officer, and a written statement of disposition which includes the evidence relied
upon and the reason for the disciplinary action taken. Sira v. Artuz, 380 F.3d 57
(2d. Cir. 2004).
Taking into consideration the standard set forth by the Second Circuit in
considering motions to amend by pro se litigants, a district court should freely
grant leave to amend at least once when a liberal reading of the complaint gives
any indication that a valid claim might be stated. Here, there is an indication that
Plaintiff may have stated a claim for violation of his due process rights when a
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disciplinary hearing against him, which resulted in six months of special
confinement, was conducted in his absence. Thus, the Court will grant Plaintiff
leave to amend his complaint with respect to his first cause of action only.
Accordingly, for the reasons set forth in Magistrate Judge Schroeder’s
Report, Recommendation and Order and for the reasons stated herein,
Defendants’ motions to dismiss (Dkt. Nos. 7 and 27) are granted and Plaintiff’s
initial complaint is dismissed.
Plaintiff’s motions to amend his complaint (Dkt. Nos. 43 and 44) are
granted in part and denied in part. Plaintiff’s motion to amend is denied with
respect to his second and third causes of action, and those claims will be
dismissed in their entirety and with prejudice. Plaintiff is granted leave to file an
amended complaint with respect to his first cause of action only.
Plaintiff is instructed to submit an amended complaint, which sets forth the
factual allegations supporting his first cause of action only, on or before May 20,
2013. The case is referred back to Magistrate Judge Schroeder for further
proceedings.
SO ORDERED.
s/ Richard J. Arcara
HONORABLE RICHARD J. ARCARA
UNITED STATES DISTRICT JUDGE
DATED: March 25, 2013
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