Opinion
Civil Action No. 9:11-CV-0758 (TJM/DEP)
11-01-2012
GARY FRANKLIN ROBINSON, Plaintiff, v. W. BROWN, Superintendent, et al., Defendants.
APPEARANCES: FOR PLAINTIFF: Gary Franklin Robinson, Pro Se 95-B-2335 Clinton Correctional Facility P.O. Box 2001 Dannemora, NY 12929 FOR DEFENDANTS: HON. ERIC T. SCHNEIDERMAN Attorney General of the State of New York The Capitol Albany, NY 12224-0341 OF COUNSEL: CATHY Y. SHEEHAN, ESQ. Assistant Attorney General
APPEARANCES:
FOR PLAINTIFF: Gary Franklin Robinson, Pro Se
95-B-2335
Clinton Correctional Facility
P.O. Box 2001
Dannemora, NY 12929 FOR DEFENDANTS: HON. ERIC T. SCHNEIDERMAN
Attorney General of the
State of New York
The Capitol
Albany, NY 12224-0341 OF COUNSEL: CATHY Y. SHEEHAN, ESQ.
Assistant Attorney General DAVID E. PEEBLES U.S.MAGISTRATE JUDGE
REPORT AND RECOMMENDATION
Pro se plaintiff Gary Franklin Robinson, a New York State prison inmate, has commenced this action against four employees of the New York State Department of Corrections and Community Supervision ("DOCCS"), pursuant to 42 U.S.C. § 1983, alleging deprivation of his civil rights. Though difficult to decipher, his complaint, as amended, appears to assert a procedural due process claim arising out of the issuance of a misbehavior report, an ensuing disciplinary hearing, and a resulting penalty that included six months of disciplinary special housing unit ("SHU") confinement.
In response to plaintiff's complaint, as amended, defendants have moved seeking its dismissal for failure to state a claim upon which relief may be granted. For the reasons set forth below, I recommend that defendants' motion be granted. I. BACKGROUND
In light of the procedural posture of this case, the following recitation is drawn principally from plaintiff's amended complaint, the contents of which have been accepted as true for purposes of the pending motion. See Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197, 2200 (2007) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56, 127 S. Ct. 1955, 1965 (2007)); see also Cooper v. Pate, 378 U.S. 546, 546, 84 S. Ct. 1733, 1734 (1964).
Plaintiff is a prison inmate currently being held in the custody of the DOCCS. See generally Amended Complaint (Dkt. No. 13). While he is now confined elsewhere, at the times relevant to his claims plaintiff was designated to the Eastern Correctional Facility ("Eastern"), located in Naponock, New York. Id. at ¶¶ 1-3.
On February 24, 2011, while plaintiff was incarcerated at Eastern, Corrections Officer J. Mundorff confiscated Uniform Commercial Code ("UCC") documents from him and thereafter issued a misbehavior report accusing him of violating prison rules, including failure to obey a direct order, lying or providing incomplete, misleading or false information, and possessing UCC materials. See Complaint (Dkt. No. 2), Attachment at p. 18 of 23. A Tier III disciplinary hearing was conducted on March 2, 2011, by G. Turbush, the Assistant Deputy Superintendent for Programs at Eastern, to address those charges. Id. at p. 17 of 23. At the conclusion of that proceeding, defendant Turbush found plaintiff guilty on all three counts and sentenced him to a six-month period of disciplinary SHU confinement, with a corresponding loss of recreation, packages, commissary, and telephone privileges, additionally recommending the loss of six months of good time credits. Id.
While annexed to plaintiff's original complaint, Murdorff's misbehavior report, dated February 24, 2011, and other documents relating to the proceedings that followed, are not included as attachments to his amended complaint. See generally Dkt. No. 13. Because those documents, while not incorporated by reference, are "integral" to plaintiff's claims, the court may properly consider them for purposes of the pending dismissal motion. See Int' Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72 (2d Cir 1995) (per curiam) ("[W]hen a plaintiff chooses not to attach to the complaint or incorporate by reference a [document] upon which it solely relies and which is integral to the complaint, the court may nevertheless take the document into consideration in deciding the defendant's motion to dismiss, without converting the proceeding to one for summary judgment.") (internal quotation marks omitted).
The DOCCS conducts three types of inmate disciplinary hearings. 7 N.Y.C.R.R. § 270.3. Tier I hearings address the least serious infractions and can result in minor punishments such as the loss of recreation privileges. Tier II hearings involve more serious infractions, and can result in penalties which include a period of SHU confinement. Tier III hearings concern the most serious violations and can result in unlimited SHU confinement and the loss of "good time" credits. See Hynes v. Squillace, 143 F.3d 653, 655 (2d Cir.), cert. denied, 525 U.S. 907, 119 S. Ct. 246 (1998).
II. PROCEDURAL HISTORY
This action was commenced by the plaintiff in the United States District for the Southern District of New York on or about May 12, 2011, but was subsequently transferred to this district in light of the fact that the events giving rise to plaintiff's claims occurred here. Dkt. Nos. 2, 4. Plaintiff thereafter filed an amended complaint, as a matter of right, on October 14, 2011. Dkt. No. 13. Named as defendants in plaintiff's amended complaint are J. Mundorff, a Corrections Officer at Eastern; W. Brown, the Superintendent at Eastern; Assistant Deputy Superintendent G. Turbush; and A. Prack, DOCCS Director of Special Housing/Inmate Disciplinary Program. Id.
On December 16, 2011, Senior District Judge Thomas J. McAvoy granted plaintiff's request for leave to proceed in forma pauperis and, after reviewing his complaint pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1), (1) dismissed all claims against defendant Mundorff, without prejudice; (2) dismissed plaintiff's claims related to the alleged issuance of a false misbehavior report and of unlawful retaliation growing out of the issuance of that report; and (3) pursuant to Peralta v. Vasquez, 467 F.3d 98, 103 (2d Cir. 2006), directed Robinson to advise the court as to whether he was relinquishing all claims related to the disciplinary hearing affecting the duration of his confinement, including based upon the recommended loss of good time credits. Dkt. No. 15. Following the receipt of a notice from the plaintiff concerning the latter issue, Dkt. No. 16, the court issued a second decision and order, dated February 6, 2012, dismissing any claim within plaintiff's amended complaint deemed to relate to disciplinary sanctions that could affect the duration of his confinement, but otherwise ordering the action to proceed. Dkt. No. 17.
On May 10, 2012, the remaining three defendants moved for dismissal of plaintiff's amended complaint. Dkt. No. 32. In their motion, defendants argue that (1) plaintiff's conspiracy claim, to the extent such a cause of action may be contained in his amended complaint, is legally deficient on its face and also barred by the intra-corporate conspiracy doctrine; (2) plaintiff has failed to set forth facts reflecting the existence of a plausible due process cause of action; (3) plaintiff's claims against the defendants in their official capacities are precluded by the Eleventh Amendment; and (4) defendant Brown is entitled to dismissal of all claims against him based upon plaintiff's failure to allege his personal involvement in the offending conduct. Id. Plaintiff has since responded in opposition to defendants' motion. Dkt. No. 35.
Defendants' dismissal motion, which is now fully briefed and ripe for determination, has been referred to me for the issuance of a report and recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B) and Northern District of New York Local Rule 72.3(c). See also Fed. R. Civ. P. 72(b).
III. DISCUSSION
A. Dismissal Motion Standard
A motion to dismiss a complaint, brought pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, calls upon a court to gauge the facial sufficiency of that pleading, utilizing as a backdrop a pleading standard which, though unexacting in its requirements, "demands more than an unadorned, the-defendant-unlawfully-harmed me accusation" in order to withstand scrutiny. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 554, 555, 127 S. Ct. 1955, 1964-65 (2007)). Rule 8(a)(2) of the Federal Rules of Civil Procedure 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); see also id. While modest in its requirements, that rule commands that a complaint contain more than mere legal conclusions; "[w]hile legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Iqbal, 556 U.S. 679, 129 S.Ct. at 1950.
In deciding a Rule 12(b)(6) dismissal motion, the court must accept the material facts alleged in the complaint as true and draw all inferences in favor of the non-moving party. Cooper v. Pate, 378 U.S. 546, 546, 84 S. Ct. 1723, 1734 (1964); Miller v. Wolpoff & Abramson, LLP, 321 F.3d 292, 300 (2d Cir. 2003), cert. denied, 540 U.S. 823, 124 S. Ct. 153 (2003); Burke v. Gregory, 356 F. Supp. 2d 179, 182 (N.D.N.Y. 2005) (Kahn, J.). However, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949-50. To withstand a motion to dismiss, a complaint must plead sufficient facts which, when accepted as true, state a claim that is plausible on its face. Ruotolo v. City of New York, 514 F.3d 184, 188 (2d Cir. 2008) (citing Twombly, 550 U.S. at 570, 127 S. Ct. at 1974). As the Second Circuit has observed, "[w]hile Twombly does not require heightened fact pleading of specifics, it does require enough facts to 'nudge [plaintiffs'] claims across the line from conceivable to plausible.'" In re Elevator Antitrust Litig., 502 F.3d 47, 50 (2d Cir. 2007) (quoting Twombly, 550 U.S. at 570, 127 S. Ct. at 1974).
When assessing the sufficiency of a complaint against this backdrop, particular deference should be afforded to a pro se litigant, whose complaint merits a generous construction by the court when determining whether it states a cognizable cause of action. Erickson v. Pardus, 551 U.S. 89, 127 S. Ct. 2197, 2200 (2007) ("'[A] pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers'") (quoting Estelle v. Gamble, 429 U.S. 97, 106, 97 S. Ct. 285, 292 (1976) (internal quotations omitted)); Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008) (citations omitted); Kaminski v. Comm'r of Oneida Cnty. Dep't of Social Servs., 804 F. Supp. 2d 100, 104 (N.D.N.Y. 2011)
B. Eleventh Amendment
Plaintiff's complaint in this action, as amended, names four DOCCS employees, three of whom remain as defendants in the action, both individually and in their official capacities. Defendants' motion requests dismissal of plaintiff's claims against them to the extent they are sued in their official capacities as DOCCS employees.
The Eleventh Amendment protects a state against suits brought in federal court by citizens of that state, regardless of the nature of the relief sought. Alabama v. Pugh, 438 U.S. 781, 782, 98 S. Ct. 3057, 3057-58 (1978). This absolute immunity, which states enjoy under the Eleventh Amendment, extends both to state agencies and state officials sued for damages in their official capacities when the essence of the claim involved seeks recovery from the state as the real party in interest. Richards v. State of New York Appellate Div., Second Dep't, 597 F. Supp. 689, 691 (E.D.N.Y. 1984) (citing Pugh and Cory v. White, 457 U.S. 85, 89-91, 102 S. Ct. 2325, 2328-29 (1982)). To the extent that a state official is sued for damages in his official capacity, the official is entitled to invoke the Eleventh Amendment immunity belonging to the state. Kentucky v. Graham, 473 U.S. 159, 166-67, 105 S. Ct. 3099, 3105 (1985); Hafer, 502 U.S. at 25, 112 S.Ct. at 361.
In a broader sense, this portion of defendants' motion implicates the sovereign immunity enjoyed by the State. As the Supreme Court has reaffirmed relatively recently, the sovereign immunity enjoyed by the states is deeply rooted, having been recognized in this country even prior to ratification of the Constitution, and is neither dependent upon nor defined by the Eleventh Amendment. Northern Ins. Co. of New York v. Chatham County, 547 U.S. 189, 193, 126 S. Ct. 1689, 1693 (2006).
By contrast, the Eleventh Amendment does not establish a barrier against suits seeking to impose individual or personal liability on state officials under section 1983. See Hafer v. Melo, 502 U.S. 21, 30-31, 112 S.Ct. 358, 364-65 (1991).
Plaintiff's damage claims against the three remaining defendants in their official capacities are, in reality, claims against the State of New York. Accordingly, they represent the type of claims against which the Eleventh Amendment protects, and are therefore subject to dismissal. Daisernia v. State of New York, 582 F. Supp. 792, 798-99 (N.D.N.Y. 1984) (McCurn, J.). I therefore recommend that this portion of defendants' motion be granted, and that plaintiff's damage claims against the defendants in their roles as state employees be dismissed.
C. Procedural Due Process
At the heart of this action is plaintiff's claim that his procedural due process rights were violated during the course of proceedings leading to a finding that he violated prison rules and a corresponding period of disciplinary SHU confinement. Plaintiff maintains that his possession of the confiscated UCC documents was legitimate and that (1) Hearing Officer Turbush violated plaintiff's due process rights by failing to investigate the charges against him; (2) A. Prack contributed to the due process violation by not reviewing the record in its entirety when deciding Robinson's appeal of the hearing determination; and (3) Superintendent Brown "colluded" with defendants to deprive him of his rights. In their motion, defendants challenge the legal sufficiency of this cause of action.
To successfully state a claim under 42 U.S.C. § 1983 for the denial of procedural due process arising out of a disciplinary hearing, a plaintiff must show that he or she (1) possessed an actual liberty interest, and (2) was deprived of that interest without being afforded sufficient process. See Tellier v. Fields, 280 F.3d 69, 79-80 (2d Cir. 2000); Hynes, 143 F.3d at 658; Bedoya v. Coughlin, 91 F.3d 349, 351-52 (2d Cir. 1996). In their motion, defendants appear to concede that plaintiff's six-month sentence of disciplinary SHU confinement could suffice to implicate a protected liberty interest under the Fourteenth Amendment, and focus instead upon the contention that plaintiff was afforded the required procedural due process in connection with that deprivation.
The procedural safeguards to which a prison inmate is entitled before being deprived of a constitutionally cognizable liberty interest were addressed by the Supreme Court in Wolff v. McDonnell, 418 U.S. 539, 564-67, 94 S. Ct. 2963, 2978-80 (1974). Under Wolff, the constitutionally mandated protections include the right (1) to receive written notice of the charges; (2) to appear at a disciplinary hearing and present witnesses and evidence, subject to legitimate safety and penological concerns; (3) to receive a written statement by the hearing officer explaining his or her decision and the reasons for the disciplinary action being taken; and (4) in some circumstances, to assistance in preparing a defense. Wolff, 418 U.S. at 564-67, 94 S. Ct. at 2978-80; see also Eng v. Coughlin, 858 F.2d 889, 897-98 (2d Cir. 1988). Additionally, in order to pass muster under the Fourteenth Amendment, a hearing officer's disciplinary determination must garner the support of at least "some evidence." Superintendent, Massachusetts Corr. Inst., Walpole v. Hill, 472 U.S. 445, 454 105 S. Ct. 2768, 2773 (1985).
Even when liberally construed, plaintiff's amended complaint does not allege the denial of any of the safeguards set out by the Supreme Court in Wolff as being guaranteed to inmates facing liberty interest deprivations in the context of disciplinary proceedings. Instead, Robinson appears to challenge the sufficiency of the evidence supporting the hearing officer's finding of guilt, although no specifics are offered. See generally Dkt. No. 13.
The misbehavior report issued by Corrections Officer J. Mundorff accuses Robinson of possessing UCC materials in violation of prison rules, and after having received a letter from a Deputy Superintendent of Security at the Greenhaven Correctional Facility ordering that he not use "redemption documents." Dkt. No. 2 at 19. Also referenced in that misbehavior report is a letter from the plaintiff to a senior corrections counselor alleged to contain misleading or false statements. Id.
Plaintiff does not refute these allegations. For example, he seemingly does not find fault with the hearing officer's determination that he possessed UCC documents in violation of prison rules. See Dkt. Nos. 13, 35. Instead, he appears to assert a right to possess such documents, despite the existence of a DOCCS policy prohibiting inmates from possessing them, and argues that they relate both to his efforts to collaterally challenge his underlying conviction and to a "contract between the Creditor/Plaintiff Gary Franklin and the Trade Name/Debtor GARY FRANKLIN ROBINSON, filed in the STATE OF WASHINGTON Commercial Registry as a Transmitting Utility File #2007-267-5393-2." Dkt. No. 13 at ¶ 9. Plaintiff's contention in this regard is unsupported; the DOCCS' policies addressing inmate possession of UCC materials have withstood challenge under the First Amendment. See, e.g., Neree v. O'Hara, No. 9:09-CV-802, 2011 WL 3841551, at *7-9 (N.D.N.Y., July 20, 2011) (Baxter, J.), adopted, 2011 WL 3841553, at *2 n.2 (N.D.N.Y. Aug. 29, 2011) (D'Agostino, J.) (concluding that such regulations are reasonably related to legitimate penological interests).
In his response to defendants' motion, Robinson describes the UCC documents at issue as containing "a contract and security interest in all property of GARY FRANKLIN ROBINSON." See Robinson Aff. (Dkt. No. 35) ¶ 4.
Copies of all unreported decisions cited in this document have been appended for the convenience of the pro se plaintiff.
To be sure, plaintiff's suggestion that the UCC materials in issue could also relate to his efforts to collaterally challenge a criminal conviction give room for pause. The confiscation of an inmate's legal papers related to a legitimate, non-frivolous legal proceeding can give rise to a claim under the First Amendment for interference with access to the courts, provided that the inmate can establish that he or she has suffered prejudice as a result of the actions of corrections officials in the pursuit of his or her legal claims. See Pacheco v. Pataki, 07-CV-850, 2010 WL 3635673, at *3 (N.D.N.Y. Sept. 9, 2010) (Scullin, J.) ("A prisoner has a constitutional right of access to the courts, which is infringed when prison officials actively interfere with a prisoner's preparation of legal documents. . . .[f]or the claim of denial of access to the courts to be successful, a plaintiff must allege an actual injury."). In this instance, however, the documents at issue have no bearing upon any attempts by plaintiff to collaterally challenge his criminal conviction. See Osborne v. Hill, No. 05-CV-641, 2006 WL 1215084, at *5 (D. Ore. May 1, 2006) ("There is nothing in the Uniform Commercial Code which would help plaintiff[s] challenge the legality of [their] conviction[s] or the conditions of [their] confinement"); see also Rouse v. Caruso, No. 06-CV-10961, 2011 WL 918327 at *17 (E.D. Mich. Feb. 18, 2011).
Copies of all unreported decisions cited in this document have been appended for the convenience of the pro se plaintiff.
Among the bases for plaintiff's due process cause of action is his contention that Hearing Officer G. Turbush failed to properly investigate the charges against him. The Fourteenth Amendment guarantees inmates the right to the appointment of an unbiased hearing officer to address a disciplinary charge. Allen v. Cuomo, 100 F.3d 253, 259 (2d Cir.1996); see also Davidson v. Capuano, No. 78 Civ. 5724, 1988 WL 68189, at *8 (S.D.N.Y. June 16, 1988) (citing McCann v. Coughlin, 698 F.2d 112, 122 n.10 (2d Cir. 1983)). An impartial hearing officer is one who "does not prejudge the evidence and who cannot say . . . how he would assess evidence he has not yet seen." Patterson v. Coughlin, 905 F.2d 564, 570 (2d Cir. 1990). The allegation that defendant Turbush failed to investigate the claims against Lewis does not suggest bias on his part. Indeed, had he conducted an investigation into the allegations against Robinson and then presided over the ensuing hearing, that dual role could have been viewed as running afoul of the Fourteenth Amendment's procedural due process guaranty. Cf. Bolden v. Alston, 810 F.2d 353, 358 (2d Cir. 1987). Simply stated, there is no requirement, as plaintiff apparently now argues, that a hearing officer assigned to preside over a disciplinary hearing conduct an independent investigation; that is simply not the role of a hearing officer.
In sum, plaintiff's amended complaint fails to set forth facts demonstrating the existence of a plausible procedural due process claim, and should therefore be dismissed on this basis.
D. Conspiracy
The oblique reference to "collusion" in plaintiff's amended complaint could potentially be regarded as alleging the existence of a conspiracy among the named defendants. In their motion, defendants also seek dismissal of any such conspiracy claim deemed to be included within Robinson's complaint, as amended.
To sustain a conspiracy claim under 42 U.S.C. § 1983, a plaintiff must demonstrate that a defendant "acted in a wilful manner, culminating in an agreement, understanding or meeting of the minds, that violated the plaintiff's rights . . . secured by the Constitution or the federal courts."; Duff v. Coughlin, 794 F. Supp. 521, 525 (S.D.N.Y. 1992); accord, Malsh v. Austin, 901 F. Supp. 757, 763 (S.D.N.Y. 1995). Conclusory, vague or general allegations of a conspiracy to deprive a person of constitutional rights do not state a claim for relief under section 1983. Sommer v. Dixon, 709 F.2d 173, 175 (2d Cir. 1983), cert. denied, 464 U.S. 857, 104 S. Ct. 177 (1983).
It should be noted that there is no independently cognizable claim of conspiracy under section 1983. See Singer v. Fulton County Sheriff, 63 F.3d 110, 119 (2d Cir. 1995) ("[A]lthough the pleading of a conspiracy will enable a plaintiff to bring suit against purely private individuals, the lawsuit will stand only insofar as the plaintiff can prove the sine qua non of a § 1983 action: the violation of a federal right."); see also Graham v. City of Albany, 08-CV-0892, 2009 WL 4263510, at *12 (N.D.N.Y. Nov. 23, 2009) (Treece, M.J.) (dismissing the plaintiff's conspiracy claim because "she identifies no underlying constitutional violation or injury"). In this instance, since I have already concluded that plaintiff's procedural due process cause of action is deficient and no other constitutional claim is set forth in his complaint, there is no longer any civil rights deprivation in the case to support a conspiracy cause of action.,
Plaintiff's amended complaint asserts a claim that he was issued a false misbehavior report, with retaliatory motives. As was noted earlier, that claim was dismissed by the court sua sponte. See Decision and Order Dated December 16, 2011 (Dkt. No. 15) at pp. 4-7, 10.
As defendants argue, plaintiff's conspiracy claim would likely be precluded in any event by the intra-agency conspiracy doctrine. See Little v. City of New York, 487 F. Supp. 2d 426, 441-42 (S.D.N.Y. 2007) ("under the 'intracorporate conspiracy' doctrine, the officers, agents, and employees of a single corporate entity, each acting within the scope of her employment, are legally incapable of conspiring together.") (quoting Salgado v. City of New York; No. 00 Civ. 3667, 2001 WL 290051, at *8-9, (S.D.N.Y. March 26, 2011); Cusamano v. Sobek, 604 F. Supp. 2d 416, 469-70 (N.D.N.Y. 2009) (Suddaby, J.) (holding that the intra-agency conspiracy doctrine applies "to cases in which the entity is the State").
E. Whether to Permit Amendment
Ordinarily, a court should not dismiss a complaint filed by a pro se litigant "without granting leave to amend at least once" if there is any indication that a valid claim might be stated. Branum v. Clark, 927 F.2d 698, 704-05 (2d Cir.1991) (emphasis added); see also Fed. R. Civ. P. 15(a) (leave to amend "shall be freely given when justice so requires"); see also Mathon v. Marine Midland Bank, N.A., 875 F. Supp. 986, 1003 (E.D.N.Y.1995) (granting leave to replead where court could not say that under no circumstances would proposed claims provide a basis for relief). The court must next determine whether plaintiff is entitled to the benefit of this general rule, given the procedural history of the case.
While plaintiff's damage claim against defendants in their official capacities is hopelessly fatal, as is his conspiracy cause of action based upon the intra-corporate conspiracy doctrine, it is conceivable that he could state facts demonstrating the existence of a plausible due process claim against all or some of the defendants in their individual capacities. I therefore recommend that he be afforded an opportunity to file a second amended complaint, if desired, to include facts that could support such cause of action. He should be advised, however, that the law in this circuit clearly provides that "complaints relying on the civil rights statutes are insufficient unless they contain some specific allegations of fact indicating a deprivation of rights, instead of a litany of general conclusions that shock but have no meaning." Hunt v. Budd, 895 F. Supp. 35, 38 (N.D.N.Y. 1995) (McAvoy, C.J.) (citing Barr v. Abrams, 810 F.2d 358, 363 (2d Cir. 1987); Pourzandvakil v. Humphry, No. 94-CV-1594, 1995 WL 316935, at *7 (N.D.N.Y. May 23, 1995) (Pooler, D.J.). In his second amended complaint, plaintiff therefore must clearly set forth the facts that give rise to the claim, including the dates, times and places of the alleged underlying acts. In addition, the revised pleading should specifically allege facts demonstrating the specific involvement of each of the named defendants in the constitutional deprivations alleged in sufficient detail to establish the they were tangibly connected to those deprivations. See Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986). Any such second amended complaint will replace the existing amended complaint, and must be a wholly integrated and complete pleading that does not rely upon or incorporate by reference any pleading or document previously filed with the court. Fed. R. Civ. P. 10(a); see Harris v. City of N.Y., 186 F.3d 243, 249 (2d Cir. 1999) (citing Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir. 1994)).
IV. SUMMARY AND RECOMMENDATION
The primary thrust of plaintiff's complaint in this action, as amended and narrowed by an earlier court decision dismissing his false misbehavior report and retaliation claims, concerns the claim that his due process rights were violated when he was disciplined, following a hearing, for violating prison rules. Because plaintiff's amended complaint is lacking in facts demonstrating the existence of a plausible procedural due process claim, I recommend that it be dismissed, with leave to amend.
Based upon the foregoing it is hereby
RECOMMENDED that defendants' motion to dismiss (Dkt. No. 32) be GRANTED, and that plaintiff's amended complaint be DISMISSED, with leave to replead only with respect to plaintiff's procedural due process claim against the defendants in their individual capacities.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections must be filed with the clerk of the court within FOURTEEN days of service of this report. FAILURE TO SO OBJECT TO THIS REPORT WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993).
It is hereby ORDERED that the clerk of the court serve a copy of this report and recommendation upon the parties in accordance with this court's local rules.
/s/_________
David E. Peebles
U.S. Magistrate Judge Dated: November 1, 2012
Syracuse, NY