Hill v. Griffin et al

Filing 23

-CLERK TO FOLLOW UP- DECISION AND ORDER granting defendant's motion to dismiss partially with prejudice and partially without prejudice, with leave to replead, as stated in decision and order.. Signed by Hon. Michael A. Telesca on 5/2/13. (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

MICHAEL HILL,
DECISION AND ORDER
No. 10-CV-6419(MAT)

Plaintiff,
-vsPATRICK GRIFFIN, Superintendent, et al.,
Defendants.

I.

Introduction
Pro se plaintiff Michael Hill (“Hill” or “Plaintiff”), an

inmate

in

the

custody

of

the

New

York

State

Department

of

Corrections and Community Supervision (“DOCCS”), commenced this
action pursuant to 42 U.S.C. § 1983. Presently before the Court is
the motion to dismiss pursuant to Federal Rule of Civil Procedure
(“F.R.C.P.”) 8(a) by Defendants Patrick Griffn, Superintendent of
Southport Correctional Facility (“Southport”)); William Hopkins,
Deputy Superintendent; Angela Bartlett, Deputy Superintendent of
Programs;
Sharon

Michael Sheahan,

Smith,

Laundry

Deputy

Superintendent

Supervisor;

Scott

of

Hodge,

Security;

Law

Library

Supervisor; Harry Hetrick, Corrections Captain; Karen Bellamy,
Director of Inmate Grievance Program; Sabrina Vonhagn, Inmate
Grievance

Supervisor;

Brian

Fischer,

Commissioner

of

DOCCS;

Frederick Butler, Corrections Sergeant; Anthony Manzo, Corrections
Officer;

Craig

Skelly,

Corrections

Officer;

John

Squires,

Corrections Office; Norman Bezio, Director of Special Housing;

Robert Murphy, Corrections Officer; Denise Fuller, Mental Health
Unit Chief; John Winant, Corrections Sergeant; Jeremy Clement,
Nurse;

William

Atwood,

Corrections

Sergeant;

Drew

Onifer,

Corrections Officer; Albert Prack, Director of Special Housing; and
Herman Lebson, Teacher.1
II.

Procedural History
Plaintiff filed his original complaint (Docket No. 1) on

July 19, 2010. After the Court reviewed the complaint with respect
to the criteria set out in 28 U.S.C. §§ 1915(e) and 1915A and
directed service of the summons and complaint, the Court granted
plaintiff leave to file an amended complaint (Docket No. 5).
Plaintiff’s amended complaint (Docket No. 6) was filed on December
5, 2010. Due to its voluminous size, it was manually filed.
On
Complaint

April

6,

pursuant

2011,
to

after
28

reviewing

U.S.C.

§§

Plaintiff’s

Amended

1915(e)(2)(B)(ii)

and

1915A(b)(1), the Court dismissed a number of additional parties
named in the Amended Complaint. The Court also dismissed, on the
basis of prosecutorial immunity, Paragraphs 86-88 of the First
Cause of Action and the entire Tenth Cause of Action alleging
selective enforcement of African-American and Latino prisoners. See
Decision at 7-8 (Docket No. 8). The Eleventh and Thirteenth Causes
of Action, alleging conspiracy to prevent prisoners from bringing

1

All Defendants except Commissioner Fischer work at Southport.
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criminal charges against corrections officers, were dismissed as a
matter of law based upon the failure of the selective enforcement
claim. See Decision at 8-9 (Docket No. 8).
The remaining Defendants have moved to dismiss the Amended
Complaint on the basis that it fails to comply with F.R.C.P. 8(a)’s
pleading requirements and the Western District of New York’s Local
Rules of Civil Procedure 5.2, 10(a)(2), 10(a)(4), and 10(b)(5).
Defendants also contend that application of the “three strikes
rule” set forth in 28 U.S.C. § 1915(g) requires revocation of
Plaintiff in forma pauperis status and dismissal without prejudice
subject to Plaintiff’s payment of the filing fee.
For the reasons the follow, Defendants’ motion to dismiss is
granted. In addition, the Court has sua sponte exercised its
discretion to dismiss with prejudice several of Plaintiff’s claims
because, as a matter of law, they fail to state a claim, and
repleading would be futile.
III. Discussion
A.

The Three Strikes Rule

Section 1915(g) of Title 28 U.S.C. provides that
[i]n no event shall a prisoner bring a civil action . .
. under this section if the prisoner has, on 3 or more
occasions, while incarcerated . . . , brought an action
or appeal in a court of the United States that was
dismissed on the grounds that it is frivolous, malicious,
or fails to state a claim upon which relief may be
granted, unless the prisoner is under imminent danger of
serious physical injury.

-3-

28 U.S.C. § 1915(g); see also, e.g., Harris v. City of New York,
607 F.3d 18, 20 (2d Cir. 2010) (citing 28 U.S.C. § 1915(g).
When a district court becomes aware that a plaintiff, to whom
it has granted in forma pauperis status, has already filed three
lawsuits that qualify as “strikes” for purposes of § 1915(g), it
should revoke in forma pauperis status and dismiss the complaint.
Here, as Hill points out, the three strikes rule does not apply
because

he

12/20/10.

has

paid

Defendants’

the

filing

fee.

three-strikes

See

Docket

argument

Entry

dated

therefore

is

meritless.
B.

Failure to Conform to Federal Pleading Requirements
1.

F.R.C.P. 8(a)

F.R.C.P. 8 requires that a complaint contain “a short and
plain statement of the claim showing that the pleader is entitled
to relief,” FED. R. CIV. P. 8(a)(2). F.R.C.P. 8 also requires that
“[e]ach averment of a pleading shall be simple, concise, and
direct.” FED. R. CIV. P. 8(e)(1)).

F.R.C.P. 8(a) “is designed to

permit the defendant to have a fair understanding of what the
plaintiff is complaining about and to know whether there is a legal
basis for recovery[.]” Ricciuti v. New York City Trans. Auth., 941
F.2d 119, 123 (2d Cir. 1991) (citation omitted). The plaintiff’s
statement of his claim “should be short because ‘[u]nnecessary
prolixity in a pleading places an unjustified burden on the court
and the party who must respond to it because they are forced to

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select the relevant material from a mass of verbiage.’” Salahuddin
v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988) (quoting 5 C. Wright & A.
Miller, FEDERAL PRACTICE AND PROCEDURE § 1281, at 365 (1969); alteration
in Salahuddin). Where a litigant does not comply with F.R.C.P.
8(a)’s “short and plain statement” rule, the court may, sua sponte
or in response to a defendant’s motion, “strike any portions [of
the complaint] that are redundant or immaterial, see FED. R. CIV. P.
12(f), or . . . dismiss the complaint.” Salahuddin, 861 F.2d at 42.
2.

The Court’s Local Rules of Civil Procedure

The Western District of New York’s Local Rules of Civil
Procedure

(“L.R.”)

also

contain

several

pleading

standards,

including L.R. 5.2(a) (a civil rights action filed by a pro se
prisoner should be filed on the Court’s standard form, and may be
returned to the plaintiff for refiling if not on the proper form);
L.R. 10(a)(2) (all text in the body of pleadings should be doublespaced); and L.R. 10(a)(4) (all pleadings must have a one-inch
margin on all sides); and L.R. 10(b)(5) (all documents must be
single-sided).
3.

Plaintiff’s Amended Complaint
F.R.C.P. 8 and the Local Rules

Runs

Afoul

of

Plaintiff’s handwritten 229-paragraph Amended Complaint is
76 handwritten pages. Attached to the Amended Complaint–which is
not on the Court’s standard form–is a “Second Set of Exhibits”
totaling about 224 pages, not including the page-dividers between
the exhibits. As Defendants point out, the pages of the Amended
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Complaint are unnumbered and single-spaced, with no discernible
margins. With regard to matters of basic formatting, the amended
complaint wholly fails to conform to L.R. 5.2(a), L.R. 10(a)(2),
L.R. 10(a)(4), and L.R. 10(b)(5).
Furthermore, the amended complaint’s allegations are diffuse
and difficult to decipher, rather than “simple, concise, and
direct,” F.R.C.P. 8(e)(1). For instance, the first cause of action,
although labeled, “First Amendment Access to the Court and Freedom
of Speech to Complaint,” also contains allegations unrelated to the
First

Amendment:

Plaintiff

asserts

that

certain

Defendants

“deliberately exercised indifference where they denied AfricanAmerican and Latino prisoners, victims of crimes committed against
them by white prison officials from filing criminal charges. . . .”
Amended Complaint (“Am. Compl.”), ¶ 87 (Docket No. 6).
The Amended Complaint also appears to incorporate the first
set of exhibits filed with the original complaint, although Hill
makes no attempt to distinguish between the two sets when citing to
exhibits.
In

sum,

the

76-page,

single-spaced,

margin-less

amended

complaint with its two sets of voluminous exhibits falls far short
of satisfying F.R.C.P. 8’s directives. Hill’s amended complaint
veers towards

the

class

of

pleadings

that

are

“so confused,

ambiguous, vague, or otherwise unintelligible that [their] true
substance, if any, is well disguised[,]” Id. (citing Gillibeau v.

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City of Richmond, 417 F.2d 426, 431 (9th Cir. 1969)). Accordingly,
dismissal of the amended complaint in its entirety is warranted.
See Salahuddin, 861 F.2d at 42 (finding “no doubt” that Plaintiff’s
complaint failed to comply with F.R.C.P. 8’s “short and plain
statement” requirement where it “span[ned] 15 single-spaced pages
and contains explicit descriptions of 20-odd defendants, their
official positions, and their roles in the alleged denials of
Salahuddin’s

rights”);

PriceWaterhouseCoopers,

LLP,

Vtech
No.

03

Holdings
Civ.

Ltd.

1413(LAK),

2003

v.
WL

21756623, at *1 (S.D.N.Y. July 30, 2003) (dismissing pursuant to
F.R.C.P.

8

where

complaint

was

113

pages

and

179

numbered

paragraphs in length, exclusive of exhibits and scores (perhaps
hundreds) of separate subparagraphs; was “verbose and repetitious,
repeating endlessly various stock phrases that convey[ed] no new
meaning”; and “[d]espite its enormous length and an overabundance
of detail, . . . [was] often . . . quite conclusory”).
III. Disposition
The Second Circuit has instructed that if a district court
dismisses a complaint for failure to comply with F.R.C.P. 8, it
generally should afford the plaintiff leave to amend. Salahuddin,
861 F.2d at 42 (citing 5 C. Charles A. Wright & Arthur R. Miller,
FEDERAL PRACTICE AND PROCEDURE § 1281, at 366–67; 2A MOORE’S FEDERAL PRACTICE
P8.13, at 8–81 to 8–82 n. 38). Upon further review, the Court finds
that several of Plaintiff’s causes of

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action fail as a matter of

law, and should be dismissed without leave to replead. See Cuoco v.
Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (denying leave to
replead where the problem with plaintiff’s action was “substantive”
and “better pleading will not cure it”).
A.

First Cause of Action
1.

Plaintiff

¶¶ 70-81
accuses

Law

Library

Supervisor

Scott

Hodge

of

misplacing certain of his legal documents, causing delay in his
filing of a state-court collateral motion for vacatur. However,
Hodge eventually located the materials, and Plaintiff does not
allege that he was precluded from filing his state-court motion.
Plaintiff’s inability to assert prejudice is fatal to his First
Amendment claim based on denial of access to the courts. See Cancel
v. Goord, No. 00 Civ.2042, 2001 WL 303713, at *4 (S.D.N.Y. Mar. 29,
2001) (“[I]n order to survive a motion to dismiss a plaintiff must
allege not only that the defendant’s alleged conduct was deliberate
and malicious, but also that the defendant’s actions resulted in
actual

injury

to

the

plaintiff

such

as

the

dismissal

of

an

otherwise meritorious legal claim.”) (citing Lewis v. Casey, 518
U.S. 343, 353 (1996)); accord, e.g., Davis v. Goord, 320 F.3d 346,
351 (2d Cir. 2003).
2.

¶¶ 89-90

Plaintiff asserts that he was denied supplies (ink pens)
necessary to file legal documents in retaliation for his filing of
-8-

lawsuits and grievances. However, he subsequently was given a pen
by defendant Manzo and was able to complete his legal work.
Plaintiff thus has failed to allege the required prejudice for a
denial of access to courts claim, and dismissal is required. See
Cancel v. Goord, 2001 WL 303713, at *4.
B.

Third Cause of Action
1.

¶¶ 106-110

Plaintiff alleges that defendants Murphy and Sheahan, acting
with a retaliatory motive, deprived him of headphones, which he
claims are a “protected liberty interest made into a right by
Southport policies,” Am. Compl., ¶ 106. Contrary to Plaintiff’s
contention, he does not have a liberty interest in being provided
with headphones. See, e.g., Higgins v. Coombe, No. 94 CIV. 7942
(MGC), 1996 WL 502409, at *4 (S.D.N.Y. Sept. 4, 1996) (rejecting
claim that the deprivation of working headphones and wall plugs
violated the Fourteenth Amendment’s guarantees of due process of
law and equal protection of the law because inmate had no liberty
interest

in

headphones).

Plaintiff

cannot

state

a

cognizable

constitutional claim on these facts, and dismissal is warranted.
C.

Sixth Cause of Action
1.

¶¶ 167-172

Plaintiff asserts that Fischer, Griffin, and Hopkins all
“exercised deliberate indifference” by creating a “vague policy to
usurp funds generated from Plaintiff’s money being lagged and held
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in a combined prison account with Chemung County Trust Bank.”
Amended Complaint, ¶ 168 (citation to record omitted). The Second
Circuit has held, however, that DOCCS’ lag pay policy does not
violate the due process clause. Allen v. Cuomo, 100 F.3d 253, 262
(2d Cir. 1996) (“New York has not created an entitlement in access
to wages prior to release and therefore, there is no due process
violation.”); see also Williamson v. Goord, No. 01-CV-6250-CJS,
2003 WL 23101784, at *4 (W.D.N.Y. Apr. 10, 2003) (finding that
withholding of “lag pay” from inmate’s prison wages, to be paid to
the inmate upon release from custody, did not violate due process,
despite the inmate’s claim that the lag pay was not merely being
held in trust, but was instead being taken without due process,
since he would never be released from prison based upon the length
of his sentence). This claim alleging embezzlement by officers and
representatives of DOCCS fails as a matter of law. Leave to replead
would be futile.
IV.

Conclusion
For the reasons stated above, the Court grants Defendant’s

motion to dismiss (Docket No. 13) the Amended Complaint for failure
to comply with F.R.C.P. 8 and various of this District’s Local
Rules of Civil Procedure. The dismissal is partially with prejudice
and partially without prejudice, with leave to replead, as follows:
These claims are dismissed with prejudice, without leave to
replead:

¶¶ 70-81, 89-90 of the First Cause of Action; ¶¶ 106-110

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of the Third Cause of Action; and ¶¶ 167-172 of the Sixth Cause of
Action.2
Should he choose to do so, Plaintiff may file a Second Amended
Complaint and attempt to replead the remaining allegations so as to
make them conform to the pleading requirements discussed above. If
Plaintiff

chooses

to

attach

exhibits

to

his

Second

Amended

Complaint, he should provide citations specific enough that the
Court is able to determine the location of the exhibit within the
two sets of exhibits Plaintiff has submitted to this Court. To
assist him in determining which exhibits need to be cited, the
Court is returning Plaintiff’s First and Second Sets of Exhibits to
him.
Plaintiff’s Second Amended Complaint is due 20 days from the
date of this Decision and Order.
IT IS SO ORDERED.
S/Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:

May 2, 2013
Rochester, New York

2

As noted above, Paragraphs 86 to 88 of the First Cause of
Action, as well as the Tenth, Eleventh, and Thirteenth Causes of
Action were dismissed with prejudice in a prior Decision and Order.
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