Opinion
04 Civ. 6679 (VM)(JCF).
September 30, 2005
DECISION AND ORDER
Defendants William Phillips, Dolores Thornton, David Thacker, and James Temple (collectively, "Defendants") moved pursuant to Federal Rule of Civil Procedure 12(b) to dismiss the complaint ofpro se plaintiff Kevin Bussey ("Bussey") for failure to state a claim on which relief could be granted. The Court converted the motion into one for summary judgment and allowed the parties additional time to submit supplementary materials for the Court's consideration. Bussey and Defendants each submitted papers in support of or in opposition to the motion for summary judgment.
The Court, after consideration of the papers submitted by the parties, finds that no issues of material fact exist and that, as a matter of law, Defendants are entitled to summary judgment. The Court finds that Bussey failed to proffer sufficient proof to create a genuine issue of material fact to support a violation of his constitutional rights under the First, Sixth, and Ninth Amendments of the United States Constitution. Moreover, considering Bussey's complaint in its most favorable light for the strongest claims it asserts, the Court reads it as attempting to state a violation of his Eighth Amendment right to be free from cruel and unusual punishment. The Court finds that Bussey has similarly failed to state a claim on this ground. In addition, Bussey's Fifth and Fourteenth Amendment rights of due process and equal protection were not violated. With respect to his due process claim, Bussey's complaint is legally deficient because it fails to demonstrate a deprivation of a liberty interest that is constitutionally recognized and protected. Bussey's equal protection claim is legally foreclosed because the complaint does not particularize either the specific ways or the specific Defendants that treated Bussey differently from similarly situated inmates without a rational basis for the difference. Finally, Bussey's failure to allege physical injury is fatal to his claim for emotional damages. The Court, therefore, dismisses the complaint in its entirety.
In the papers submitted to the Court, Bussey requests additional discovery, after the completion of which Bussey alleges that he could amend his complaint to state a viable claim. Bussey's request may be understood as a belated Rule 56(f) motion to obtain further discovery to oppose the Defendants' summary judgment motion. Assuming Bussey is arguing that further discovery would allow him to defend against the instant motion, Bussey has failed to indicate any specific discoverable information that would raise a material issue of fact sufficient to overcome Defendants' motion, and therefore the Court rejects his request for discovery. See Mason Tenders Dist. Council Pension Fund v. Messera, 958 F. Supp. 869, 894 (S.D.N.Y. 1997) ("[A] court can reject a request for discovery, even if properly and timely made through a Rule 56(f) affidavit, if it deems the request to be based on speculation as to what potentially could be discovered." (quoting Paddington Partners v. Bouchard, 34 F.3d 1132, 1138 (2d Cir. 1994)). To the extent that Bussey is arguing that additional discovery would allow him to amend his complaint to state a viable claim, the Court is similarly unpersuaded to grant Bussey discovery. The defects in Bussey's complaint do not stem solely from a lack of factual support, but are also the result of the legal deficiency of his claims or to applicable defenses that are dispositive as a matter of law. "Discovery is not intended to be a fishing expedition, but rather is meant to allow the parties to flesh out allegations for which they initially have at least a modicum of objective support."Lituma v. United States, No. 04 Civ. 8955, 2005 WL 1705088, at *2 (S.D.N.Y. July 18, 2005) (internal quotation marks omitted);see also Moreno v. United States, 965 F. Supp. 521, 527 (S.D.N.Y. 1997). Bussey is entitled to proceed with discovery only if the claims as stated in the complaint are legally viable, which they are not, and therefore the Court denies Bussey's request for discovery in its entirety.
Although the Defendants have yet to file a responsive pleading, and thus Rule 15(a) purports to give Bussey a right to amend his complaint without leave of Court, Bussey's "absolute right to amend terminate[d] upon the dismissal of [his] complaint. . . . Dismissal of a complaint functions much as would a responsive pleading. Each side and the court will have put so much effort into the motion to dismiss that the litigation can hardly be considered a clean slate for purposes of amendment." Stephenson v. Dow Chem. Co. (In re Agent Orange Prod. Liab. Litig.), 220 F.R.D. 22, 24 (S.D.N.Y. 2004); see Elfenbein v. Gulf W. Indus., Inc., 590 F.2d 445, 448 n. 1 (2d Cir. 1978) (holding that a plaintiff's automatic "right terminates upon the granting of the motion to dismiss"); Swan v. Board of Higher Education, 319 F.2d 56, 60-61 (2d Cir. 1963) ("[O]nce . . . [a] judgment dismissing the original complaint had been entered, the right granted to plaintiff by Rule 15(a) of the Federal Rules of Civil Procedure to amend his complaint once as a matter of course was at an end. . . . Thereafter, the pleading could be amended only with leave of the court." (internal quotation marks and citations omitted)).
Although Bussey is proceeding in this matter pro se, and "a pro se litigant in particular `should be afforded every reasonable opportunity to demonstrate that he has a valid claim,'" Dluhos v. Floating Abandoned Vessel, 162 F.3d 63, 69-70 (2d Cir. 1998) (citing Satchell v. Dilworth, 745 F.2d 781, 785 (2d Cir. 1984)), the Court denies Bussey leave to amend his complaint.See Swan, 319 F.2d at 61. Nothing Bussey has indicated in his complaint, in the extensive materials submitted with it or in his papers responding to the instant motion suggests viable means by which Bussey could amend his complaint to state a valid claim were this Court to grant him leave to do so. He has only stated the vague hope that through discovery he might uncover a claim that he could viably state against the Defendants. As stated above, Bussey has failed to offer any legally sufficient support for his many claims, and may not use the tools of discovery to hunt for a meritorius claim in the Defendants' records. The granting of leave to amend thus appears to be futile in light of the Court's denial of Bussey's request for discovery. See Dluhos, 162 F.3d at 69 ("[A] motion to amend should be denied if there is an `apparent or declared reason — such as undue delay, bad faith or dilatory motive . . ., repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of the allowance of the amendment, [or] futility of amendment.'" (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)). The Court therefore denies Bussey's motion to amend.
The Court will more thoroughly address the substantive issues stated above in a separate opinion explaining the basis for the Court's findings, reasoning and conclusions in granting the Defendants' motion for summary judgment and the dismissal of Bussey's complaint. For the foregoing reasons, it is hereby
ORDERED that the motion (Docket Nos. 8 and 19) of defendants William Phillips, Dolores Thornton, David Thacker, and James Temple for summary judgment is GRANTED; and it is further
ORDERED that plaintiff Kevin Bussey's motions for discovery and for leave to amend the complaint are DENIED.
The Clerk of Court is directed to dismiss the complaint in its entirety with prejudice and to close this case.
SO ORDERED.