Opinion
01-CV-0155E(Sr)
January 7, 2002
MEMORANDUM and ORDER
Plaintiff, acting pro se, commenced this action March 5, 2001 pursuant to 42 U.S.C. § 1983 and naming the following as defendants: Glen S. Goord, the Commissioner of New York's Department of Correctional Services ("DOCS"), Donald Selsky, Director of Special Housing and eight DOCS employees at the Attica Correctional Facility, — viz., (1) Walter Kelly, Superintendent; (2) Conway, Deputy Superintendent (Security); (3) Lt. G. Bartz, Review Officer; (4) Lt. J. Lambert, Hearing Officer; (5) Sgt. R. Lomanto; (6) C.O. R. Pierce; (7) C.O. C. Caryl and (8) C.O. R. Nicholson — in both their individual and official capacities and alleging that they had violated his Fourteenth Amendment rights to procedural and substantive due process and to equal protection. Plaintiff also filed a motion requesting permission to proceed in forma pauperis. Chief Judge David G. Larimer, as the then pro se duty judge, screened the Complaint pursuant to 28 U.S.C. § 1915 and, in an order dated March 19, 2001, dismissed with prejudice all claims against defendants Goord, Kelly and Conway on the basis that respondeat superior liability does not exist under section 1983 and plaintiff had not alleged that they had had any personal involvement in the acts that formed the basis of the Complaint. In said Order Chief Judge Larimer also dismissed with prejudice plaintiff's equal protection cause of action on the basis that plaintiff had not alleged that he had been treated differently, on a constitutionally impermissible basis, than had any other similarly situated person and his substantive due process cause of action on the basis that the claimed actions of defendants did not rise to the standard required to state such a cause of action.
Defendants Selsky, Bartz, Lambert, Pierce, Caryl and Nicholson filed a motion June 21, 2001 pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure ("FRCvP") seeking to dismiss all of the claims against them in their official capacities on the basis that such are barred by the Eleventh Amendment. These defendants also seek to dismiss plaintiff's fourth cause of action, wherein he alleges that he was denied his right to procedural due process when he was removed from the assigned placement program, on the basis that plaintiff did not have a protected liberty interest in such. In response to the June 21, 2001 motion to dismiss, plaintiff filed a "Notice of Motion" July 30, 2001 wherein he requested (1) permission to file an amended complaint for the reasons set forth in an attached proposed amended complaint, (2) that the motion to dismiss be granted in all respects for the reasons stated therein and (3) that defendants Goord, Kelly and Conway, who had been dismissed pursuant to said March 19, 2001 Order be reinstated. Defendant Lomanto, who had not yet been served when the June 21, 2001 motion to dismiss was filed, filed an identical motion to dismiss August 31, 2001. Although plaintiff had requested that the June 21, 2001 motion to dismiss be granted, he filed opposition to defendant Lomanto's identical motion to dismiss; accordingly this Court will consider plaintiff to be opposed to both motions to dismiss and shall address them on the merits. All three motions were submitted on the papers September 28, 2001 and have thereafter been before this Court for disposition.
When ruling on a motion to dismiss pursuant to FRCvP 12(b)(6) for failure to state a claim upon which relief can be granted, this Court must assume the facts alleged by plaintiff to be true and may not dismiss the Complaint "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief" — Conley v. Gibson, 355 U.S. 41, 45-46 (1957) — and pro se pleadings are held to lower standards than are those drafted by attorneys. Haines v. Kerner, 404 U.S. 519, 520-521 (1972). Plaintiff sued the defendants, all of whom are DOCS employees of varying ranks, in both their individual and in their official capacities. A lawsuit brought in federal court seeking damages against state officials in their official capacities is considered to be against the state itself and is accordingly barred by the Eleventh Amendment. Kentucky v. Graham, 473 U.S. 159, 169 (1985). Despite the liberal reading afforded pro se pleadings in response to motions to dismiss, it is clear beyond doubt that plaintiff cannot prove any facts that would entitle him to relief against defendants in their official capacities; therefore plaintiff's claims against the defendants in their official capacities will be dismissed as constitutionally barred.
Plaintiff's fourth cause of action alleges that he had been denied procedural due process when he was removed from participation in the assigned placement program — i.e., his job in the metal shop — as punishment after having been found guilty in a Tier III Disciplinary Hearing. Defendants seek to dismiss this cause of action on the basis that plaintiff does not have a protected liberty interest in participating in the assigned placement program.
"When the Defendants GOORD, SELSKY, KELLY, CONWAY, BARTZ, PIERCE and NICHOLSON [sic], who did, aided and abetted and participated in direct active concert with the Defendant LAMBERT, who subjected or caused the Plaintiff to be subjected to a sanction of removal from his assigned Placement program that was not authorized under 7 NYCRR 257.4 et seq., as amended [See Exhibit — `G' annexed hereto], violated Plaintiff's Substantive and Procedural Due Process and Equal Protection Rights under 7 NYCRR 250.2(d-f), as amended, and 254.7 et seq., as amended, constituted a deprivation of Plaintiff's Civil Rights, of which, have been, and is, outlawed by the FIFTH and FOURTEENTH AMENDMENTS of the United States Constitution, forthwith." Pl.'s Mem. in Supp. of Compl. ¶ 16 (emphasis in original). This claim had already been dismissed in its entirety against defendants Goord, Kelly and Conway and against all defendants insofar as it alleged substantive due process and equal protection violations pursuant to Chief Judge Larimer's March 21, 2001 Order.
Prisoners do not have a liberty or property interest in prison work assignments and, consequently, routine administrative changes in such do not implicate the right to procedural due process. Gill v. Mooney, 824 F.2d 192, 194 (2d Cir. 1987). However, a prisoner may state a section 1983 claim for a violation of his procedural due process rights where a change in work assignment is made with the intention of punishing or harassing him in retaliation for exercising constitutionally protected rights, provided that such retaliation is not wholly conclusorially claimed but is pled in sufficient detail. Ibid.
In the present case, reading plaintiff's pro se Complaint broadly and with the required liberality, it appears that he is alleging that he had been removed from participation in the assigned placement program in retaliation for his having committed certain acts — of which he had been found guilty in a Tier III Disciplinary Hearing conducted in violation of his right to procedural due process, but of which he was later exonerated in an Article 78 proceeding. He contends that removal from the assigned placement program was not a punishment authorized to be imposed pursuant to a finding of guilty after the Tier III Disciplinary Hearing. Pl.'s Mem. in Supp. of Compl. ¶¶ 1-2, 3(E), 6-16. This Court believes such to be sufficient to survive a motion to dismiss under the liberal standards applicable to pro se pleadings; accordingly, defendants' motion to dismiss plaintiff's fourth cause of action will be denied.
Plaintiff has moved for leave to file an amended complaint wherein he would reinstate Goord, Kelly and Conway as defendants and re-raise his substantive due process and equal protection claims for the reasons set forth in the proposed amended complaint. Defendants oppose plaintiff's motion to file an amended complaint on the basis that such would be futile because Chief Judge Larimer's March 19, 2001 Order dismissing such defendants and claims with prejudice was an adjudication on the merits.
Although leave to amend a complaint should normally be freely given pursuant to FRCvP 15(a), such leave should not be granted when the proposed amendment would be futile. Foman v. Davis, 371 U.S. 178, 182 (1962); Mroz v. City of Tonawanda, 999 F. Supp. 436, 466 (W.D.N.Y. 1998). Pursuant to FRCvP 41(b), a dismissal for failure to state a claim upon which relief could be granted operates as an adjudication on the merits unless the court specifies otherwise in its order. Teltronics v. L. M. Ericsson Telecommunications, 642 F.2d 31, 34 (2d Cir.), cert. denied, 452 U.S. 960 (1981). In his March 19, 2001 Order, Chief Judge Larimer specifically stated that the dismissal of defendants Goord, Kelly and Conway and of the claims for substantive due process and equal protection violations was with prejudice.
The undersigned has reviewed plaintiff's proposed amended complaint and, as drafted, it cannot be filed because it reinstates Goord, Kelly and Conway as defendants and his causes of action for deprivations of his rights to substantive due process and equal protection, all of which were dismissed on the merits and with prejudice. However, in his amended complaint, plaintiff has fleshed out and expanded upon the factual allegations set forth in his original Complaint and, because leave to amend shall be freely given pursuant to FRCvP 15(a), plaintiff may serve and file an amended complaint which expands upon the factual allegations in his original Complaint but which does not impermissibly attempt to reinstate Goord, Kelly and Conway as defendants and his causes of action for substantive due process and equal protection violations. Furthermore, such an amended complaint shall be brought against defendants Selsky, Bartz, Lambert, Pierce, Caryl, Nicholson and Lomanto in their individual capacities only. If plaintiff chooses to amend his Complaint in accordance with the above limitations, the amended complaint — which shall be complete unto itself — shall be forwarded to this Court for review by the undersigned to ensure that such limitations have been complied with before it is filed.
Accordingly, it is hereby ORDERED that the motion of defendants Selsky, Bartz, Lambert, Pierce, Caryl and Nicholsons to dismiss is granted in part and denied in part, that the claims against defendants Selsky, Bartz, Lambert, Pierce, Caryl, Nicholson in their official capacities are dismissed, that defendant Lomanto's motion to dismiss is granted in part and denied in part, that the claims against Lomanto in his official capacity are dismissed, that plaintiff's motion to reinstate Goord, Kelly and Conway as defendants is denied, that plaintiff's motion to submit to the undersigned an amended complaint in conformity with this Order is granted and that plaintiff shall submit his amended complaint within thirty days of this Order.