Opinion
No. 6:04-cv-6188.
July 8, 2005
Jerry Rodriguez, pro se, Attica Correctional Facility, Attica, NY, for Plaintiff.
J. Richard Benitez, NYS Attorney General's Office Rochester, NY, for Defendants.
DECISION ORDER
INTRODUCTION
This is an action pursuant to 42 U.S.C. § 1983, brought by the plaintiff, a prison inmate proceeding pro se. Now before the Court is defendants' motion [#5] to dismiss the complaint in this action pursuant to Fed.R.Civ.P. 12(b), subparagraphs (1) and (6). For the reasons stated below, the application is denied.
BACKGROUND
At all relevant times, plaintiff Jerry Rodriguez ("plaintiff") was incarcerated at Collins Correctional Facility ("Collins"), where the incident upon which this action is based allegedly occurred.
Plaintiff states in his complaint that on or about December 8, 2003, he and his cellmate, Jones, were in their locked cell, when Jones covered the cell window with paper, thereby obstructing the view into the cell. Jones refused several orders by corrections staff to remove the paper, and threatened to harm plaintiff if he did so. At this time plaintiff was recovering from a recent hemorrhoid operation.
Upon Jones' refusal to comply with orders, defendant Correction Officers R. Hagadorn ("Hagadorn") and T. Smith ("Smith"), at the direction of Corrections Sergeant Korbor ("Korbor"), used chemical agents to extricate both Jones and plaintiff from the cell. Plaintiff claims that Hagadorn and Smith then threw him to the floor and assaulted him.
Plaintiff sued Hagadorn, Smith, and Korbor pursuant to 42 U.S.C. § 1983, claiming that they violated his rights under the 8th Amendment to be free from excessive force. Plaintiff also sued J. Berbary ("Berbary"), the Superintendent of Collins, Glenn Goord ("Goord"), the Commissioner of the New York State Department of Correctional Services ("DOCS"), and Donald Selsky ("Selsky"), the Director of DOCS' Special Housing Units ("SHU"). Plaintiff sued all of these defendants in only their official capacities, seeking declaratory relief and money damages.
Defendants filed the subject motion to dismiss [#5], pursuant to Fed.R.Civ.P. 12(b), subparagraphs (1) and (6). In support of this motion, defendants claim that the official capacity claims are barred by the 11th Amendment, and further that the complaint fails to allege personal involvement by defendants Goord, Berbary, or Selsky.
In response to defendants' motion plaintiff filed an amended complaint [#13]. The amended complaint asserts no claim against Berbary, Selsky, or Goord. However, the amended complaint adds two new defendants, Corrections Officer P. Lesefske ("Lesefske"), and Corrections Lieutenant S. Bunn ("Bunn"). The amended complaint alleges that Bunn ordered the cell extraction, and that Lesefske, along with Hagadorn and Smith, used excessive force to remove plaintiff from his cell, and then assaulted him. Although the amended complaint continues to name Korbor as a defendant, it contains no factual allegations connecting Korbor to the alleged constitutional violations. The amended complaint names the defendants in both their official and individual capacities.
ANALYSIS
Plaintiff's Motion To File An Amended Complaint
Rule 15(a) of the Federal Rules of Civil Procedure states, in pertinent part, "a party may amend the party's pleading . . . at any time before a responsive pleading is served. . . ." Defendants filed the motion to dismiss [#5] in lieu of answering the complaint. Because the Second Circuit has held that the filing of a motion to dismiss is not a responsive pleading for purposes of Rule 15(a), LeGrand v. Evan, 702 F.2d 415, 417 (2d Cir. 1983), plaintiff was free to amend his complaint. Consequently, defendants' motion to dismiss the original complaint is moot.
CONCLUSION
For the foregoing reasons, defendants' motion to dismiss [#5] is denied as moot. Defendants are directed to answer or otherwise move against the amended complaint [#13] within twenty (20) days of entry of this Decision and Order.
So Ordered.