Terranova v. New York State Department of Corrections and Community Supervision et al
DECISION AND ORDER granting 8 Motion to Dismiss for Failure to State a Claim. The Clerk of Court is directed to terminate John Lempke as a party to this action. SO ORDERED. Signed by Hon. Elizabeth A. Wolford on 8/3/17. (JPL)-CLERK TO FOLLOW UP-
UNITED STATES DISTRJCT COURT
WESTERN DISTRJCT OF NEW YORK
DECISION AND ORDER
NEW YORK STATE DEPARTMENT OF
CORRECTIONS AND COMMUNITY
SUPERVISION, JOHN LEMPKE, as
Superintendent of the Wende Correctional
Facility, MICHAEL J. CHLUDZINSKI, JAMES
JOHNSON, and JOHN DOE, A through Z
Plaintiff Fabrizio Terranova ("Plaintiff') filed this action on June 30, 2016. (Dkt.
1). Plaintiff filed an amended complaint on November 28, 2016, alleging claims arising
out of an alleged beating by corrections officers at Wende Correctional Facility. (Dkt. 7).
Plaintiff is represented by counsel.
Presently before the Court is defendant John
Lempke's ("Defendant") motion to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(6). (Dkt. 8). For the reasons stated below, Defendant's motion is granted.
The facts alleged in the amended complaint are as follows: after requesting urgent
medical attention, Plaintiff, an inmate at Wende Correctional Facility, was violently
beaten in an unprovoked attack by unidentified corrections officers. (Dkt. 7 at ,I,I 12-16).
At least one unidentified supervisory officer observed the beating but failed to intervene.
(Id. at ,I 17). As a result of the officers' conduct, Plaintiff "sustained multiple injuries,
including but not limited to[:] lacerations, traumatic brain iajury, fractured ribs, multiple
bruises and contusions, permanent neurological mJunes, mental anguish, emotional
distress, and post traumatic stress disorder." (Id. at ,I 19). Plaintiff was later charged
with violating prison rules and inciting violence. (Id. at ,I 20).
Plaintiff brings causes of action for the denial of medical care, excessive use of
force, and failure to intervene. (See id. at ,I,I 21-45). The amended complaint alleges that
the Court has jurisdiction pursuant to 28 U.S.C. § 1331. 1 (Id. at ,I 8). Although the
amended complaint fails to specify a single federal law or constitutional provision which
was violated, the Court interprets Plaintiff's claims as arising under 42 U.S.C. § 1983. 2
Standard of Review
"A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the
legal sufficiency of the party's claim for relief." Zucco v. Auto Zone, Inc., 800 F. Supp.
The amended complaint also alleges that the Court has jurisdiction pursuant to its
removal jurisdiction. (See Dkt. 7 at ,I 8 (alleging jurisdiction pursuant to 28 U.S.C.
§§ 1441, 1443, 1446)). As this case was originally filed in this Court (see Dkt. 1),
Plaintiff's references to the Court's removal jurisdiction appear incorrect.
Additionally, Plaintiff makes no reference to any of his claims arising under state
law, nor does he assert that the Court has jurisdiction over any state law claims pursuant
to the Court's supplemental jurisdiction under 28 U.S.C. § 1367.
2d 473, 475 (W.D.N.Y. 2011).
In considering a motion to dismiss pursuant to Rule
l 2(b )( 6), a court generally may consider only "facts stated in the complaint or documents
attached to the complaint as exhibits or incorporated by reference." Nechis v. Oxford
Health Plans, Inc., 421 F.3d 96, 100 (2d Cir. 2005). A court should consider the motion
"accepting all factual allegations in the complaint and drawing all reasonable inferences
in the plaintiff's favor."
Ruotolo v. City of NY, 514 F.3d 184, 188 (2d Cir. 2008)
(quoting ATS! Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007)). To
withstand dismissal, a plaintiff must set forth "enough facts to state a claim to relief that
is plausible on its face."
Bell At!. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
However, "threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements," are not entitled to an assumption of truth. Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009).
"While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need
detailed factual allegations, a plaintiff's obligation to provide the 'grounds' of his
'entitlement to relief' requires more than labels and conclusions, and a fonnulaic
recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555
( citations omitted).
Thus, "at a bare minimum, the operative standard requires the
plaintiff to provide the grounds upon which his claim rests through factual allegations
sufficient to raise a right to relief above the speculative level." Goldstein v. Pataki, 516
F .3d 50, 56-57 (2d Cir. 2008) (citations omitted).
The Court Will Not Consider Facts Outside of the Amended Complaint
Before addressing the merits of Defendant's motion, the Court must address facts
submitted by Plaintiff in opposing the motion which do not appear in the amended
complaint. In his motion papers, Plaintiff alleges Defendant permitted unconstitutional
customs and practices, failed to take measures to prevent brutality by corrections officers,
and failed to investigate complaints of brutality. (Dkt. 11 at 6-7).
In deciding a Rule 12(b)(6) motion, the Court is generally limited to reviewing
"the allegations contained within the four corners of [the plaintiff's] complaint." Pani v.
Empire Blue Cross Blue Shield, 152 F.3d 67, 71 (2d Cir. 1998); see, e.g., Friedl v. City of
NY, 210 F.3d 79, 83-84 (2d Cir. 2000) (finding that a district court errs if, in deciding a
Rule 12(b )( 6) motion, it "relies on factual allegations contained in legal briefs or
memoranda"). However, where the additional documents are integral to or relied upon
by the complaint, the court may consider them without converting the motion to one for
summary judgment under Federal Rule of Civil Procedure 56. Roth v. Jennings, 489 F.3d
499, 509 (2d Cir. 2007); Cartee Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir.
Here, Plaintiff, wholly inappropriately, has submitted facts which go beyond what
is alleged in the amended complaint, and includes information that is neither integral to
nor relied upon in the amended complaint. Consideration of these additional allegations
would be procedurally improper without converting Defendant's motion to one for
summary judgment. No party is on notice of such a conversion, and no discovery has yet
occurred in this case. Therefore, conversion would be inappropriate, and the Court will
not consider the extraneous material provided by Plaintiff in deciding the instant motion. 3
The Amended Complaint Fails to Allege Defendant's Personal Involvement
Defendant argues that Plaintiffs claims must be dismissed as to Defendant
because the amended complaint contains no allegations of Defendant's personal
involvement. (Dkt. 8-1 at 4-6). The Court agrees.
A supervisory defendant must have been personally involved in a constitutional
deprivation to be held liable under§ 1983. Williams v. Smith, 781 F.2d 319,323 (2d Cir.
1986); see Richardson v. Goard, 347 F.3d 431, 435 (2d Cir. 2003) ("Supervisor liability
in a§ 1983 action depends on a showing of some personal responsibility, and cannot rest
on respondeat superior." (citation omitted)).
"[A] plaintiff must plead that each
Government-official defendant, through the official's own individual actions, has
violated the Constitution." Iqbal, 556 U.S. at 676. Personal involvement may be shown
A supervisory official, after learning of the violation through a report or
appeal, ... failed to remedy the wrong[;] ... created a policy or custom
under which unconstitutional practices occurred, or allowed such a policy
Plaintiff has not sought leave to amend the complaint to assert these additional
factual allegations as a basis for a claim against Defendant, and the Court offers no
opinion on whether those additional factual allegations would be sufficient to plausibly
allege a claim against Defendant. Although "[i]t is the usual practice upon granting a
motion to dismiss to allow leave to replead," Cartee Indus., Inc. v. Sum Holding L.P., 49
F .2d 42, 48 (2d Cir. 1991 ), Plaintiff has already amended his complaint. (See Dkt. 7).
Additionally, the Court notes that Plaintiff is counseled, not prose. As a result, the Court
declines to sua sponte grant leave to amend.
or custom to continue[; or] ... was grossly negligent m managmg
subordinates who caused the unlawful condition or event.
Williams, 781 F .2d at 323-24 (internal citations omitted). However, a '"plaintiff cannot
base liability solely on the defendant's supervisory capacity or the fact that he held the
highest position of authority' within the relevant governmental agency or department."
Houghton v. Cardone, 295 F. Supp. 2d 268, 276 (W.D.N.Y. 2003) (citation omitted); see
also Montero v. Travis, 171 F.3d 757, 761-62 (2d Cir. 1999) (finding a claim against a
parole board chairman was "properly dismissed as frivolous because [the plaintiff] never
alleged any facts describing [the chairman's] personal involvement in the claimed
Here, Plaintiff makes no allegation as to Defendant beyond asserting that
Defendant is the Superintendent of Wende Correctional Facility. (See Dkt. 7 at
Plaintiff alleges no facts suggesting personal involvement by Defendant.
accusations are, at best, conclusory and fail to raise the specter of relief beyond the
speculative level. Thus, Plaintiff fails to state a claim against Defendant.
For the foregoing reasons, Defendant's motion (Dkt. 8) is granted, and Plaintiffs
claims against Defendant are dismissed without prejudice. The Clerk of Court is directed
to terminate Defendant as a party to this action.
Dated: August 3, 2017
Rochester, New York
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