Brown v. Fischer et al
Filing
41
-CLERK TO FOLLOW UP- DECISION AND ORDER granting 22 Motion to Dismiss and dismissing Plaintiff's complaint in its entirety. (clerk to close case.). Signed by Hon. Michael A. Telesca on 10/8/13. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
FRANK BROWN,
No. 6:11-CV-6065(MAT)
DECISION AND ORDER
Plaintiff,
-vsSUPERINTENDENT FISCHER, et al.,
Defendants.
I.
Introduction
Frank
Brown
(“Plaintiff”),
proceeding
pro
se,
instituted
this action pursuant to 42 U.S.C. 1983, alleging that Defendants
violated his constitutional rights while he was an inmate in the
custody of
Community
Facility
Complaint
the
New
York
State
Supervision (“DOCCS”)
(“Elmira”).
(Dkt
#1)
The
in
Court
its
Department
of
housed
Elmira
at
(Larimer,
entirety
Corrections
D.J.)
pursuant
and
Correctional
dismissed
to
28
the
U.S.C.
§ 1915(e)(B)(i), finding that it was “composed of the type of
‘fantastic,’
‘delusional’
and
‘incredible’
allegations
that
warrant dismissal as factually frivolous.” Order dated June 27,
2011, p. 3 (Dkt #9). Judge Larimer denied leave to replead on the
basis that amending the Complaint would be futile. Id., p. 4.
Plaintiff appealed to the United States Court of Appeals,
which vacated Judge Larimer’s order and remanded the case to
provide Plaintiff an opportunity to proceed with respect to the
following causes of action: (1) his Eighth Amendment excessive
force claim (First Claim); (2) his First Amendment retaliation
claims that are not based on food-tampering incidents (Second and
Fourth Claims); (3) his First Amendment mail-tampering claims
(Third and Eleventh Claims); (4) his Fourteenth Amendment due
process
claim
against
correctional
officers
(Sixth
Claim);
(5) his First Amendment free exercise claim (Tenth Claim); and
(6) his claim alleging that individual DOCCS officials allowed
prison employees to commit constitutional violations (Fourteenth
Claim),
“to
the
extent
that
the
claims
are
brought
against
individual defendants, as the claims state non-frivolous causes
of action.” Brown v. Fischer, 11-2809-pr (2d Cir. Dec. 2, 2011),
issued as mandate Jan. 12, 2012 (Dkt #16). The Second Circuit
dismissed the appeal with respect to all of the foregoing claims,
to the extent that Plaintiff’s allegations were directed against
DOCCS, on the basis that as state agencies are not “persons”
amenable to suit under 42 U.S.C. § 1983. Id. Finally, the Second
Circuit dismissed the Fifth, Seventh, Eighth, Ninth, and Twelfth
Claims as lacking any arguable basis in fact or law. Id.
Thus,
Eleventh,
the
and
First,
Second,
Fourteenth
Claims
Third,
Fourth,
Six,
were
allowed
to
Tenth,
proceed.
Defendants have moved to dismiss these remaining claims pursuant
to Rule 12(b)(6) of the Federal Rules of Civil Procedure (“Rule
12(b)(6)”) for failure to state a claim upon which relief may be
granted. Plaintiff has opposed the motion. For the reasons that
follow, Defendants’ motion is granted in its entirety, and the
Complaint is dismissed.
2
II.
General Legal Principles
A.
Motions to Dismiss for Failure to State a Claim
Rule 12(b)(6) allows dismissal of complaints based upon the
plaintiff’s failure “to state a claim upon which relief can be
granted.” FED. R. CIV. P. 12(b)(6). In order “[t]o survive a
motion to dismiss under [Rule 12(b)(6)], 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, –––
U.S. ––––, ––––, 129 S. Ct. 1937, 1949, 173 L.Ed.2d 868 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127
S. Ct. 1955, 167 L.Ed.2d 929 (2007) (emphasis supplied)). In
assessing a claim’s plausibility, the district court must “assume
[the] veracity” of all well-pleaded factual allegations contained
in the complaint, Iqbal, 129 S. Ct. at 1950, and draw every
reasonable
Burch,
494
inference
U.S.
in
113,
favor
118
of
the
(1990).
plaintiff,
However,
the
Zinermon
v.
plaintiff’s
allegations must consist of more than mere labels or a “formulaic
recitation of the elements of a cause of action,” and bare legal
conclusions are “not entitled to the assumption of truth.” Iqbal,
129 S. Ct. at 1949–50.
The facial plausibility standard is met when “the plaintiff
pleads
factual
reasonable
content
inference
that
that
allows
the
the
defendant
court
is
to
liable
draw
the
for
the
misconduct alleged.” Iqbal, 129 S. Ct. at 1949. Although this
3
standard
does
not
require
a
showing
of
a
probability”
of
misconduct, it does demand more than “a sheer possibility that a
defendant
has
acted
unlawfully.”
Id.
Thus,
“where
the
well-
pleaded facts do not permit the court to infer more than the mere
possibility of misconduct,” dismissal is appropriate. Starr v.
Sony BMG Music Entertainment, 592 F.3d 314, 321 (2d Cir. 2010)
(quoting Iqbal, 129 S. Ct. at 1950); see also Twombly, 550 U.S.
at
570
claims
(noting
across
that
the
where
line
plaintiffs
from
“have
conceivable
to
not
nudged
their
plausible,
their
complaint must be dismissed”). If, even assuming the truthfulness
of the allegations, they “could not raise a claim of entitlement
to relief, this basic deficiency should be exposed at the point
of minimum expenditure of time and money by the parties and the
court.” Twombly, 550 U.S. at 558.
B.
Construction of Pro Se Pleadings
The Supreme Court has noted that “[a] document filed pro se
is to be liberally construed,’ and must be held to less stringent
standards than formal pleadings drafted by lawyers.’” Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429
U.S. 97, 106 (1976)); see also Bertin v. United States, 478 F.3d
489, 491 (2d Cir. 2007). Because Plaintiff is acting pro se, the
Court will construe his submissions liberally, “to raise the
strongest arguments they suggest.” Bertin, 478 F.3d at 489.
4
III. Discussion
A.
First Claim: Excessive Force
In support of his first claim, Plaintiff alleges that he was
subjected to an excessive use of force in violation of the Eighth
Amendment on March 27, 2006. Corrections officers alleged to have
been involved include Harvey, Chorney, Perfetti, and Steinhopper.
Defendants
argue
that
this
claim
is
time-barred
because
it
pertains to an event that occurred outside the applicable threeyear statute of limitations.
“In light of the ‘settled federal practice’ of reaching
constitutional questions only when a case cannot be decided on
statutory grounds, New York City Transit Authority v. Beazer, 440
U.S. 568, 582, 99 S. Ct. 1355, 1364, 59 L.Ed.2d 587 (1979), this
Court is obligated to decide defendants’ statute of limitations
argument
before
considering
the
merits
of
plaintiff’s
constitutional claims.” Lee v. Coughlin, 643 F. Supp. 546, 548
(W.D.N.Y. 1996). There is no dispute that the present action was
filed in this Court on January 31, 2011. Following the settled
law of this Circuit, the Court “will proceed on the assumption
that this § 1983 action was commenced for limitations purposes .
. . when it was received by the Clerk of this Court.” Lee, 643 F.
Supp. at 548 n.2 (citing Rosenberg v. Martin, 478 F.2d 520, 522 &
n.
la
(2d
Cir.
1973),
cert.
denied,
5
414
U.S.
872
(1973);
Salahuddin v. Milligan, 592 F. Supp. 660 (S.D.N.Y. 1984), aff’d
without opn, 767 F.2d 908 (2d Cir. 1985)).
The
statute
Reconstruction
of
Civil
limitations
for
Rights
Acts
actions
do
brought
not
under
contain
42
a
U.S.C.
§ 1983. Federal courts therefore must “borrow” from state law the
most
analogous
state
statute
of
limitations
that
is
not
inconsistent with federal laws or policy. Lee, 643 F. Supp. at
548 (citing Burnett v. Grattan, 468 U.S. 42, 49 (1984)); see also
Wilson v. Garcia, 471 U.S. 261, 268 (1985). “By adopting the
statute governing an analogous cause of action under state law,
federal
law
incorporates
balance
between
the
the
state’s
policies
of
judgment
repose
and
on
the
the
proper
substantive
policies of enforcement embraced by the state cause of action.”
Baker v. City of N.Y., 934 F. Supp. 533, 534-35 (E.D.N.Y. 1996)
(citing Wilson, 471 U.S. at 271).
The Supreme Court held in Wilson that § 1983 claims are best
characterized as personal injury actions for purposes of the
statute of limitations. 471 U.S. at 280. In Owens v. Okure, 488
U.S. 235 (1989), a case which arose in New York state, the
Supreme Court refined this principle by holding that where state
law provides multiple statutes of limitations for personal injury
actions,
courts
considering
§
1983
claims
should
borrow
the
general or residual statute for personal injury actions. Owens,
488 U.S. at 250. Applying that holding to the specific facts in
6
Owens, the Supreme Court concluded that New York’s three-year
statute of limitations governing general personal injury actions,
see New York Civil Practice Law and Rules (“C.P.L.R.”) § 214(5),
applied to § 1983 claims in that state.
There is, therefore, a three-year statute of limitations
applicable to Plaintiff’s excessive force claim. This three-year
period began to run when Plaintiff knew, or has reason to know,
of the injury forming the basis of his action. Singleton v. City
of N.Y., 632 F.2d 185, 191 (2d Cir. 1980), cert. denied, 450 U.S.
920 (1981). In this case, Plaintiff obviously knew of his injury
as soon as it occurred, on March 27, 2006. Plaintiff had three
years from that date, or until on March 27, 2009, to file his
complaint. However, Plaintiff did not commence this action until
January
31,
limitations
2011,
had
almost
expired.
two
His
years
first
after
claim
is
the
statute
therefore
of
time-
barred.
B.
Second Claim: Retaliatory Deprivation of Showers and
Meals
Plaintiff
asserts
that
defendants
Harvey,
Chorney,
and
Perfetti denied him showers and meals on March 10, 2006, in
retaliation for his exercising his First Amendment right to seek
redress
of
grievances.
applies
to
prisoners’
A
three-year
claims
that
statute
they
were
of
limitations
subjected
to
retaliatory and unconstitutional treatment by prison officials.
7
E.g., Crosland v. Safir, No. 01–7619, 54 F. App’x 504, 505, 2002
WL 31867823, at *1 (2d Cir. Dec. 20, 2002) (unpublished opn.).
The alleged instance of retaliation set forth in the Second
Claim occurred on March 10, 2006. In order to be within the
three-year limitations period, he would have had to file his
Complaint by March 10, 2009. The Second Claim is therefore timebarred and must be dismissed.
C.
Third Claim: Interference with Mail
Plaintiff
asserts
that
on
February
17,
2006,
defendants
Harvey, Chorney, and Perfetti tampered with his mail in violation
of his First Amendment rights. As Defendants argue, this claim
was required to have been filed by February 17, 2009. Therefore,
it is outside the three-year statute of limitations and must be
dismissed as time-barred.
D. Fourth Claim: Threats of Retaliation
Plaintiff alleges that on April 10, 2006, Drs. Satti, Brown,
and Price told him that if he did not stop writing grievances on
staff members, he “will stay in observation cells.” Complaint,
Fourth Claim (Dkt #1). Plaintiff asserts that his First Amendment
rights were thereby violated.
Defendants
note
that
none
of
the
defendants
allegedly
involved in this incident has been served with the Complaint. In
addition,
Defendants
argue,
this
8
claim
is
barred
by
the
applicable three-year statute of limitations. The Court agrees,
and the Fourth Claim is dismissed as untimely.
E. Sixth Claim: Violation of Due Process
Plaintiff asserts that on April 14, 2006, Captain Wenderlich
and “Lieutenant C” intentionally destroyed eight minutes of the
videotape of the March 27, 2006 assault on him, thereby violating
his due process right under the Fourteenth Amendment to present
evidence in his defense. This claim was required to have been
brought by April 14, 2009. Therefore it is also barred by the
applicable
three-year
statute
of
limitations
and
must
be
dismissed.
F.
Tenth Claim: Interference with Free Exercise Rights
Plaintiff alleges that on April 7, 2008, his First Amendment
right to freely exercise his religion was violated by receipt of
a meal containing one allegedly non-Kosher food item. Plaintiff,
who asserts that he is registered as a practitioner of Judaism
and
is
entitled
individuals
including
as
to
receive
liable
for
Commissioner
Kosher
this
Fischer,
meals,
names
constitutional
“the
Head
Rabbi
various
violation,
for
the
Department of Corrections”, “D.O.C. Counsel”, and an unidentified
facility
superintendent.
Defendants
argue
that
this
claim
is
factually baseless because the allegedly offending food item does
not violate any Kosher dictates. Defendants also argue that this
9
claim is legally baseless because Plaintiff has alleged only a
de minimis, non-actionable constitutional infringement.
The
First
exercise of
Amendment
one’s
guarantees
religion.
the
U.S. CONST.,
right
to
amend.
I;
the
free
Cutter
v.
Wilkinson, 544 U.S. 709, 719 (2005). “Prisoners have long been
understood
to
retain
protection
afforded
by
some
the
measure
First
of
the
Amendment’s
constitutional
Free
Exercise
Clause.” Ford v. McGinnis, 352 F.3d 582, 588 (2d Cir. 2003)
(citation omitted). This protection extends into various aspects
of
prison
life
including,
as
pertinent
to
Plaintiff’s
Tenth
Claim, that of an inmate’s diet. The Second Circuit has held that
it is clearly established that a prisoner has a right to a diet
consistent with his religious beliefs. Therefore, courts have
generally found that to deny prison inmates the provision of food
that satisfies the dictates of their faith unconstitutionally
burdens their free exercise rights.
A party asserting a free exercise claim bears the initial
burden of establishing that the disputed conduct infringes on his
or her sincerely held religious beliefs. E.g., Salahuddin v.
Goord, 467 F.3d 263, 274-75 (2d Cir. 2006) (citations omitted).
Once
this
showing
is
made,
the
burden
then
shifts
to
the
defendant to identify a legitimate penological purpose justifying
the decision, the reasonableness of which is judged against the
test set out by the Supreme Court in Turner v. Safley, 482 U.S.
10
78
(1987).
Id.
It
bears
noting
that
“[t]here
may
be
inconveniences [regarding denials of religiously required food]
so
trivial
that
they
are
most
properly
ignored.”
Tafari
v.
Annets, 06–CV–11360, 2008 WL 2413995, at *16 (S.D.N.Y. June 12,
2008) (quoting McEachin v. McGuinnis, 357 F.3d 197, 203 n. 6
(2d Cir. 2004)). “In this regard, the body of law regarding free
exercise rights “is no different from many others in which the
time-honored maxim de minimis non curat lex applies.” McEachin,
357 F.3d at 203 n. 6.
Here, as an initial matter, Plaintiff has not alleged facts
plausibly
suggesting
that
the
meal
served
in
April
2008,
infringed on his sincerely held religious beliefs. In particular,
Plaintiff has not established how the meal that he received was
actually improper. The basis for Plaintiff’s belief that the meal
in
question
violated
Kosher
guidelines
was
a
notation
on
a
package of salami included with the meal stating that the salami
contained
both
beef
and
chicken.
Plaintiff
asserts
that
the
salami was not Kosher because he is not permitted to “mix meat
and
dairy.”
Complaint,
Tenth
Claim
(emphasis
in
original).
However, as Defendants argue, there is no indication that the
salami contained both meat and dairy, and thus it did not require
Plaintiff to “mix meat and dairy”. Plaintiff’s free exercise
claim accordingly must be dismissed because he has not alleged or
established that the meal was not in conformity with his Jewish
11
faith. See Benjamin v. Coughlin, 905 F.2d 571, 580 (2d Cir. 1990)
(dismissing
inmates’
constitutional
right
“dietary
to
observe
claim”
asserting
“Ital”
under
they
had
Rastafarianism,
because plaintiffs “failed to clearly define the claim or to make
the evidentiary showing required to establish any constitutional
dietary claim”); Evans v. Albany Cty. Corr. Fac., No. 9:05-CV1400 GTS/DEP, 2009 WL 1401645, at *8 (N.D.N.Y. May 14, 2009).
Moreover,
even
if
Plaintiff
had
properly
pled
that
the
salami was not Kosher, he only would have alleged that on a
single occasion, one portion of one meal was not Kosher. This
deprivation
clearly
is
no
more
than
de
minimis
and
cannot
constitute the basis for an actionable First Amendment claim.
See, e.g., Thaxton v. Simmons, Civ. No. 9:10–CV–1318 (MAD/RFT),
2012 WL 360104, at *6 (N.D.N.Y. Jan. 5, 2012) (“[T]he minor
disruption of two kosher meals during a four-month period can
hardly be called a substantial burden. At best, these incidents
present a de minimis, or insubstantial, burden on Plaintiff’s
ability to freely exercise his religion.”) (citations omitted),
report and recommendation adopted, 2012 WL 360141 (N.D.N.Y. Feb.
2, 2012).
F.
Eleventh Claim: Interference with Mail and the Filing
of Grievances
In support of his Eleventh Claim, Plaintiff asserts that on
April 10, 2008, Correction Officer Chorney ripped up several of
12
Plaintiff’s letters in front of him. Plaintiff also asserts that
he submitted “at least one hundred grievances in 90 days while at
Elmira” and “at least 75 were destroyed for sure.” Complaint,
Eleventh
Claim.
In
addition,
Plaintiff
surmises
that
his
correspondence to the Federal Bureau of Investigation (“FBI”)
must have been destroyed because he wrote to the FBI “over three
hundred times and h[as] not heard from them only once.” Id.
Interference with legal mail implicates a prisoner’s right
of access to the courts and right of free speech under the First
and Fourteenth Amendments. Davis v. Goord, 320 F.3d 346, 351
(2d Cir. 2003). To state a claim for denial of access to the
courts by prison officials’ interference with legal mail, the
inmate must allege that the defendant “took or was responsible
for actions that hindered” his efforts to pursue a legal claim.
Id.
(citing,
inter
alia,
Lewis
v.
Casey,
518
U.S.
343,
351
(1996)). The inmate also must show that the interference with his
mail resulted in actual injury. Id. (citation omitted). In order
to state a claim for violation of a prisoner’s First Amendment
right to send and receive mail, “the inmate must show that prison
officials ‘regularly and unjustifiably interfered with . . .
[his] mail.’” Id. (quotation and citation omitted).
Plaintiff’s
assertions
concerning
the
“at
least
75”
allegedly destroyed grievances and the “over 300” intercepted
letters are too vague and conclusory to state claims for relief.
13
See Gilliam v. Quinlan, 608 F. Supp. 823, 838 (S.D.N.Y. 1985)
(dismissing as too vague and conclusory inmate’s mail-tampering
claim where
neither in his complaint nor in his subsequent
papers did inmate point to specific instances of such alleged
tampering
or
identify
who
allegedly
tampered
with
it).
In
addition, Plaintiff has failed to allege any personal involvement
by
any
of
the
defendants
in
connection
with
the
purported
destruction of his grievances and letters. The allegation of a
defendant’s personal involvement in any alleged constitutional
violation is a prerequisite to a damage award for personal injury
under 42 U.S.C. 1983, Wright v. Smith, 21 F.3d 496, 501 (2d Cir.
1994), and without such involvement, these claims must fail.
With regard to his allegation concerning Correction Officer
Chorney’s destruction of his letters on one occasion, the Court
finds that this clearly fails to state a colorable claim. Courts
in
this
Circuit
have
held
that
such
isolated
incidents
are
de minimis. See, e.g., Morgan v. Montanye, 516 F.2d 1367, 1371
(2d Cir. 1975) (in view of prisoner’s showing of only a single
instance
where
legal
mail,
clearly
marked
as
being
from
an
attorney, was opened out of his presence, and in absence of any
indication that events complained of affected in any way the
correspondence
between
prisoner
and
his
attorney
concerning
prisoner’s criminal appeal or any other matter, prisoner did not
have a cause of action against prison authorities for injunctive
14
relief and damages based on officials’ alleged unconstitutional
inspection of prisoner’s legal mail out of his presence); Battice
v.
Phillip,
No.
CV-04-669
(FB)(LB),
2006
WL
2190565,
at
*5
(E.D.N.Y. Aug. 2, 2006) (“Battice also fails to state a claim . .
. that defendants violated his rights to send and receive legal
mail, because he cites to only one instance of mail tampering,
which did not result in any actual harm. . . .”).
Moreover, Plaintiff has failed to adequately allege actual
injury.
Although
Correction
he
Officer
states
that
Chorney’s
he
was
“greatly
destruction
of
his
harmed”
mail
by
on
one
occasion, such an allegation is too conclusory for purposes of
surviving a Rule 12(b)(6) motion to dismiss. See generally Ostrer
v. Aronwald, 567 F.2d 551, 553 (2d Cir. 1977) (per curiam) (“This
court
has
repeatedly
held
that
complaints
containing
only
‘conclusory,’ ‘vague,’ or ‘general allegations’ of a conspiracy
to deprive a person of constitutional rights will be dismissed.
Diffuse
amplified
and
by
expansive
specific
allegations
instances
are
of
insufficient,
misconduct.”)
unless
(internal
quotations omitted).
G.
As
2/6/2008,
Fourteenth Claim: Conspiracy to Commit Criminal Acts
his
the
Fourteenth
Department
Claim,
of
Plaintiff
Corrections
asserts
has
been
that
and
“on
is
deliberate [sic] indifference [sic] to my health and safety by
allowing staff in every prison I have been inside to violate all
15
my constitutional rights.” Complaint, Fourteenth Claim. He also
asserts that he has “been infected in every prison by staff and
inmate agents . . . with blood, feces, urine and sperm and
chemicals”
stomach
and
and
has
[his]
“had
head
infections
from
these
in
[his]
many
throat,
criminal
chest,
acts.”
Id.
Plaintiff claims that he has “been robbed in every prison and
some twice [sic]” leading to “emotional and psychological pain
with
the
physical
pain.
.
.
.”
Id.
He
alleges
that
“the
Commissioners and his deputies have known from the start exactly
what has been going on here” and that “all” DOCCS staff have been
“directly responsible” because they have “done nothing” to stop
these criminal acts and have conspired to cover up the alleged
criminality and constitutional violations. Id. Apart from “the
Commissioner”, Plaintiff does not identify any of the individuals
allegedly involved in the events giving rise to the Fourteenth
Claim. As noted above, failure to allege personal involvement by
the defendants is fatal to a Section 1983 claim. See Wright v.
Smith, 21 F.3d at 501.
A
conspiracy
claim
under
Section
1983
must
allege
that
(1) an agreement existed between two or more state actors to act
in concert to inflict an unconstitutional injury on the plaintiff
and (2) an overt act was committed in furtherance of that goal.
Ciambriello v. County of Nassau, 292 F.3d 307, 324–25 (2d Cir.
2002). Vague and conclusory allegations that the defendants have
16
engaged in a conspiracy are insufficient to withstand a motion to
dismiss. Sommer v. Dixon, 709 F.2d 173, 175 (2d Cir. 1983); see
also Brown v. City of Oneonta, 106 F.3d 1125, 1133 (2d Cir. 1997)
(complaints
containing
only
conclusory,
vague
or
general
allegations of a conspiracy to deprive a person of constitutional
rights
do
not
state
a
claim
conspiracy
claim
must
not
agreement
among
the
state
only
for
relief).
allege
actors,
A
the
but
Section
existence
also
the
1983
of
an
“actual
deprivation of constitutional rights.” Romer v. Morgenthau, 119
F.Supp.2d 346, 363–64 (S.D.N.Y. 2000) (citing Malsh 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. (citing Malsh, 901 F. Supp. at 765).
Plaintiff alleges in conclusory fashion that practically all
of DOCCS has been involved in a conspiracy to harm him and
violate
specific
his
constitutional
facts
giving
rise
rights.
Instead
to
plausible
the
of
asserting
existence
any
of
a
conspiracy, Plaintiff makes vague, shocking statements that on
unspecified
dates,
unidentified
individuals
infected
him with
various diseases, poisoned him with unspecified chemicals, and
routinely beat and robbed him. These allegations are plainly
insufficient to suggest a plausible constitutional claim. See,
e.g., Dorsey v. Fisher, No. 9:09-CV-1011GLSDEP, 2010 WL 2008966,
17
at *7 (N.D.N.Y. May 19, 2010) (finding “wholly unbelievable”
inmate’s claim that prison officials and other inmates conspired
against him where plaintiff alleged that inmate porters laced his
food with infected DNA or infected bodily fluids at the direction
of DOCCS officials and that DOCCS supervisors rewarded them for
doing so and his entire prison block was full of stolen property
that was taken from inmates by inmate porters at the behest of
DOCCS
officials);
Walsh
v.
Goord,
No.
07-CV-0246Sr,
2007
WL
1572146, at *7 (W.D.N.Y. May 23, 2007) (“The allegations of this
far-ranging
and
far-fetched
conspiracy
among
the
very
upper
echelon of DOCS’ officials are supported by no specific facts.
Complaints
containing
only
conclusory,
vague
or
general
allegations of a conspiracy to deprive a person of constitutional
rights do not state a claim for relief.”) (citing, inter alia,
Brown v. City of Oneonta, 106 F.3d 1125, 1133 (2d Cir. 1997),
overruled on other grounds, Gonzaga Univ. v. Doe, 536 U.S. 273
(2002)).
Accordingly,
the
Fourteenth
Claim
is
dismissed
for
failure to state a claim.
IV.
Conclusion
For the foregoing reasons, Defendants’ Motion to Dismiss is
granted, and Plaintiff’s Complaint is dismissed in its entirety.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any
appeal from this order would not be taken in good faith, and
therefore leave to proceed in forma pauperis on appeal is denied.
18
Coppedge v.
United
States,
369
U.S.
438,
444-45
(1962).
Any
future request to proceed on appeal in forma pauperis should be
directed on motion to the United States Court of Appeals for the
Second Circuit in accordance with Rule 24 of the Federal Rules of
Appellate Procedure.
SO ORDERED
S/Michael A. Telesca
____________________________
HONORABLE MICHAEL A. TELESCA
United States District Judge
Dated:
Rochester, New York
October 8, 2013
19
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