Balentine v. Anzalone

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MICHAEL ANDERSON BALENTINE, Plaintiff, v. NICK ANZALONE, et al., Defendants.

No. 9:21-CV-1383 (LEK/CFH)

United States District Court, N.D. New York

July 11, 2023

Michael Anderson Balentine Plaintiff pro se

RACHAEL OUIMET, ESQ. Assistant Attorney Genera Attorney General for the State of New York Attorneys for defendant(s)

REPORT-RECOMMENDATION AND ORDER^[1]

CHRISTIAN F. HUMMEL U.S. MAGISTRATE JUDGE

Plaintiff pro se Michael Anderson Balentine (“plaintiff”), who was at all relevant times in the custody of the New York State Department of Corrections and Community Supervision (“DOCCS”) at Marcy Correctional Facility (“Marcy C.F.”), brings this action pursuant to 42 U.S.C. § 1983, alleging that defendants Correctional Officer Nick Anzalone, and Correctional Sergeants Brown, F. Reynolds, and J. Deusler violated plaintiff's constitutional rights under the First and Eighth Amendments and his state law rights via intentional infliction of emotional distress (“IIED”). See Dkt. No. 21 (“Am. Compl.”); see also Dkt. No. 22 at 18.^[2] Presently before the Court is defendant Brown's (“defendant Brown”) partial motion to dismiss the state law IIED claim pursuant to Federal Rule of Civil Procedure (“Fed. R. Civ. P.”) 12(b)(6). See Dkt. No. 26. Plaintiff has not responded. For the following reasons, it is recommended that defendant's motion be denied.

I. Factual Background^[3]

Plaintiff alleges that on January 28, 2021, an incarcerated individual, Jonny Reed, told plaintiff that he would have to do the dishes and clean for Bloods gang members because plaintiff “was a ‘Rapo[.]'” Am. Compl. at 2, ¶ 19. Plaintiff was assaulted on February 6, 2021, by Reed and another Bloods gang member “because [he] had refused to do their dishes and other cleaning chores[.]” Id. at 3, ¶ 21. Plaintiff reported the assault and was transported to another dorm, during which time defendant Deusler and other correctional officers told plaintiff that because he was “a ‘nasty Rapo[,]'” they would have forced him to do their dishes, too. Id. at 3, ¶ 22. Defendant “Deusler shared the details of the incident with his group of friends[,]” including defendants Anzalone, Brown, and Reynolds. Id. at 3, ¶ 22; 1, ¶ 7. Then, “[o]n two occasions between February 27 and March 11,2021, Defendant Brown entered H2 on the evening shift and observed [plaintiff] cleaning the bathroom area.” Id. at 3, ¶ 27. Defendant Brown said to plaintiff, “Hey Friend! Now that's what I like to see!” Id. Plaintiff contends that the use of the word “friend” was a way to indicate to other incarcerated individuals that plaintiff was friends with the correctional officers which would cause plaintiff to be “assaulted and beaten again.” Id. Plaintiff feared for his safety and believed that Brown was conspiring with defendants Reynolds and Anzalone to place plaintiff in harm's way by other incarcerated individuals. See id. On March 12, 2021, another incarcerated individual, Johnson, approached plaintiff and told him that he was “required to do the dishes and other cleaning chores of the Bloods because [he] was a ‘Rapo.'” Id. at 4, ¶ 33. Plaintiff said he would not clean for free, and Johnson physically assaulted plaintiff. See id.

On March 14, 2021, defendant Brown entered D1 with defendants Reynolds and Deusler. See Am. Compl. at 5, ¶ 38. “Brown gave the order for Count.” Id. After all the incarcerated individuals returned to their cubes and they were “silent,” defendant Brown went to plaintiff's cube,

stopped in front of [him] and faced [him] and made the following speech in a loud voice to that everyone in the dorm could hear him: “Hi, Friend! How are you doing today? Great! Hey everybody, I want you all to know that my Friend here is really good at doing dishes! So, if any you here need to have your dishes done, bring them to my Friend here because he's got that special Palmolive Hand!”

Id. ¶ 39. Another correctional officer asked plaintiff, “What the f*** did you do to piss Brown off?!” Id. at 5, ¶ 40. Other incarcerated individuals “made derogatory comments to [plaintiff] and stated that Brown must want to them to ‘beat [plaintiff's] ass.'” Id. Plaintiff filed a grievance concerning defendant Brown's statements, the remarks made to plaintiff by other inmates “that Sgt. Brown wanted them to ‘beat [his] ass[,]'” and stated that he requested “to be moved to a safe dorm.” Dkt. No. 21-2 at 16. When plaintiff was interviewed about his grievance, he “told [Deputy Superintendent for Security Snyder] that everyone in D1 had witnesses Sergeant Brown's speech attempt to have [plaintiff] hurt or killed.” Am. Compl. at 6, ¶ 47.

II. Motion to Dismiss Standard^[4]

Defendant Brown moves to dismiss plaintiff's IIED claim under Rule 12(b)(6) which allows a party to seek dismissal of a claim for “failure to state a claim upon which relief can be granted[.]” FED. R. CIV. P. 12(b)(6); see also Dkt. No. 26-1 at 3-4. He moves for dismissal solely on the ground of his immunity from suit under N.Y. Correction Law section 24. See id. at 5-6. Whether defendant Brown is immune from suit under section 24 concerns whether this Court has jurisdiction over the state law IIED claim; therefore, defendant's motion is more properly brought under Rule 12(b)(1) which concerns motions to dismiss for “lack of subject-matter jurisdiction[.]” FED. R. CIV. P. 12(b)(1); see also Torres-Acevedo v. Blair, No. 9:21-CV-52 (GLS/ATB), 2021 WL 4993540, at *6 (N.D.N.Y. Oct. 15, 2021) (“Section 24 provides immunity for DOCCS employees from lawsuits based on acts or omissions within the course of their employment and requires such actions be brought in the New York Court of Claims as a claim against the state. If a plaintiff brings such an action in federal court, the court should dismiss the state law claims for lack of subject matter jurisdiction.”), report and recommendation adopted, 2021 WL 5298674 (N.D.N.Y. Nov. 15, 2021).

Nevertheless, “[t]he standards of review for a motion to dismiss under Rule 12(b)(1) for lack of subject matter jurisdiction and under 12(b)(6) for failure to state a claim are substantively identical.” Feldheim v. Fin. Recovery Servs., Inc., 257 F.Supp.3d 361, 365 (S.D.N.Y. 2017) (citation omitted). “When the Rule 12(b)(1) motion is facial, i.e., based solely on the allegations of the complaint or the complaint and exhibits attached to it . . . the plaintiff has no evidentiary burden.” Carter v. HealthPort Techs., LLC, 822 F.3d 47, 56 (2d Cir. 2016). Insofar as plaintiff did not respond to defendant Brown's Rule 12(b)(6) motion, “[p]laintiff's failure to respond to the motion to dismiss does not relieve the Court of its obligation to consider the merits of plaintiff's claims.” Arena v. Irondequoit Police Dep't, 228 F.Supp.3d 242, 243 (W.D.N.Y. 2017); see also Mobley v. Crane, No. 9:21-CV-299 (BKS/ATB), 2021 WL 5813689, at *2 (N.D.N.Y. Nov. 3, 2021), report and recommendation adopted, 2021 WL 5810406 (N.D.N.Y. Dec. 7, 2021). “If a complaint is sufficient to state a claim on which relief can be granted, the plaintiff's failure to respond to a Rule 12(b)(6) motion does not warrant dismissal.” Arena, 228 F.Supp.3d at 243 (quoting McCall v. Pataki, 232 F.3d 321, 322 (2d Cir. 2000)); see also Goldberg v. Danaher, 599 F.3d 181, 183 (2d Cir. 2010) (“Because a motion under Rule 12(b)(6) presents a pure legal question, based on allegations contained within the four corners of the complaint, the district court is equipped to make a determination on the merits[]” even if a party does not respond.); Parry v. VA Med. Ctr., 408 F.Supp.3d 281,283 (W.D.N.Y. 2019) (considering merits of 12(b)(1) motion despite the plaintiff's failure to respond); Hylton v. J.P. Morgan Chase Bank, N.A., 338 F.Supp.3d 263, 268 (S.D.N.Y. 2018) (same). However, plaintiff's failure to respond is not without significance. Under the Court's Local Rules,

[w]here a properly filed motion is unopposed and the Court determines that the moving party has met its burden to demonstrate entitlement to the relief requested therein, the non-moving party's failure to file or serve any papers as this Rule requires shall be deemed as consent to the granting or denial of the motion, as the case may be, unless good cause is shown.

L.R. 7.1(a)(3).

“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Darby v Greenman, 14 F.4th 124, 127 (2d Cir. 2021) (internal quotation marks omitted) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “In reviewing a complaint for dismissal under Rule 12(b)(6), the court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor.” Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994) (citation omitted); see also Tandon v. Captain's Cove Marina of Bridgeport, Inc., 752 F.3d 239, 243 (2d Cir. 2014) (“In resolving a motion to dismiss under Rule 12(b)(1), the district court must take all uncontroverted facts in the complaint (or petition) as true, and draw all reasonable inferences in favor of the party asserting jurisdiction.”). “Courts are ‘obligated to construe a pro se complaint liberally.'” Tafari v. McCarthy, 714 F.Supp.2d 317, 339 (N.D.N.Y. 2010) (quoting Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009)). “However, ‘the tenet that a court must accept as true all of the allegations contained in the complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.'” Id. (quoting Iqbal, 556 U.S. at 678); see also Nat'l Rifle Ass'n of Am. v. Vullo, 49 F.4th 700, 713 (2d Cir. 2022) (“We accept as true factual allegations but not conclusions, such as statements...