Dixon v. Blackensee

MALE DIXON aka JAMES KING, Plaintiff, v. BARBARA VON BLACKENSEE -WARDEN OF THE OTISVILLE CORRECTIONAL FACILITY,in her individual and official capacity, Defendants.

No. 17-cv-7359 (NSR)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

June 11, 2019

OPINION & ORDER

NELSON S. ROMÁN, United States District Judge

Plaintiff Male Dixon aka James King ("King" or "Plaintiff"), a pro se incarcerated inmate at the U.S Penitentiary at Terre Huate, Indiana, commenced this action on or about September 25, 2017. (Complaint, ("Compl."), ECF No. 1.) In this action, he brings claims against Barbara Von Blackensee, a former Warden of Otisville Correctional Facility, in her individual and official capacity, pursuant to 42 U.S.C. § 1983 and under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 397, 91 S.Ct. 1999 (1971), which allows a cause of action for damages against federal agents who violate certain constitutional rights. On February 5, 2018, Plaintiff filed his Second Amended Complaint. (Second Amended Complaint, ("SAC"), ECF No. 9.) Before the Court is Defendants' Motion to Dismiss the SAC pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (ECF No. 24.)

For the following reasons, Defendants' Motion is GRANTED in part and DENIED in part.

BACKGROUND

The following facts are derived from the Complaint, SAC, documents appended thereto, and docket entries. They are assumed to be true for the purposes of this motion.

Plaintiff alleges that in 2015, he commenced an action in Pennsylvania state court. (ECF No. 1 ¶ 1.) On or about December 17, 2015, while incarcerated at the Federal Corrections Institution in Otisville, New York ("FCI Otisville"), Barbara Von Blackensee ("Defendant" or "Blackensee"), the Warden of FCI Otisville at the time, disobeyed or refused to honor a state court order ("Transport Order"), requesting that Plaintiff be released into the custody of local Pennsylvania officials so that he could appear, in person, on January 26, 2016, for a hearing in his state court action. (Id. ¶¶ 5-8.)

By Order, dated December 13, 2017, this Court dismissed Plaintiff's initial Complaint, pursuant to FRCP § 12(h)(3) for lack of subject matter jurisdiction. (ECF No. 7.) The Court determined Plaintiff failed to allege sufficient facts to assert a plausible claim. (Id.) Among the deficiencies, was Plaintiff's failure to allege facts to support a finding of actual harm. (Id.) ("Plaintiff has failed to allege any facts showing that (1) his Pennsylvania state-court § 1983 action is/was viable, or (2) Von Blackenesee frustrated or hindered his litigation of that action by not allowing him to appear at the January 26, 2016 hearing.") The Court then granted Plaintiff an extension of time to file an amended complaint. (Id.)

On January 26, 2018, Plaintiff timely filed an amended complaint (Amended Complaint, ("AC"), ECF No. 8.) In it, he asserted claims pursuant to § 1983 under the First, Fifth, Sixth and Seventh Amendments.¹Less than two weeks later, Plaintiff filed the SAC, which was nearly identical and to the AC, and which is the subject of the instant motion. (See SAC.) On July 20, 2018, Defendants filed their Motion to Dismiss Plaintiff's SAC pursuant to Fed.R.Civ. P. 12(b)(1) and 12(b)(6). (Defendants' Motion to Dismiss ("Def. Mot."), ECF No. 24.)

STANDARDS OF REVIEW

Rule 12(b)(1)

On a motion to dismiss pursuant to FRCP §12(b)(1), "[a] case is properly dismissed for lack of subject matter jurisdiction . . . when the district court lacks the statutory or constitutional power to adjudicate it." Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). "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." Tandon v. Captain's Cove Marina of Bridgeport, Inc., 752 F.3d 239, 243 (2d Cir. 2014). "[T]he court may resolve the disputed jurisdictional fact issues by referring to evidence outside of the pleadings, such as affidavits, and if necessary, hold an evidentiary hearing." Zappia Middle E. Constr. Co. v. Emirate of Abu Dhabi, 215 F.3d 247, 253 (2d Cir. 2000). Though a court "may consider affidavits and other materials beyond the pleadings to resolve the jurisdictional issue, [it] may not rely on conclusory or hearsay statements contained in the affidavits." J.S. ex rel. N.S. v. Attica Cent. Sch., 386 F.3d 107, 110 (2d Cir. 2004).

Rule 12(b)(6)

Under Rule 12(b)(6), the inquiry for motions to dismiss is whether the complaint "contain[s] sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible onits face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Id. at 679. The Court must take all material factual allegations as true and draw reasonable inferences in the non-moving party's favor, but the Court is "'not bound to accept as true a legal conclusion couched as a factual allegation,'" to credit "mere conclusory statements," or to accept "[t]hreadbare recitals of the elements of a cause of action." Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). In determining whether a complaint states a plausible claim for relief, a district court must consider the context and "draw on its judicial experience and common sense." Id. at 679. A claim is facially plausible when the factual content pleaded allows a court "to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 678.

Generally, when considering a FRCP § 12(b)(6) motion, the court may consider the facts in the complaint, in documents appended to the complaint or incorporated in the complaint by reference, and to matters of which judicial notice may be taken. Leonard F. v. Isr. Disc. Bank of N.Y., 199 F.3d 99, 107 (2d Cir.1999) (internal quotation marks omitted). On a FRCP § 12(b)(6) motion, however, the court may not consider evidence proffered by the moving party or its opponent. Thomas v. Calero, 824 F. Supp. 2d 488, 497 (S.D.N.Y. 2011).

When a plaintiff proceeds pro se, as in this case, a court is obliged to construe his pleadings liberally, particularly when they allege civil rights violations. McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004) citing Weinstein v. Albright, 261 F.3d 127, 132 (2d Cir.2001). A pro se plaintiff, however, is still bond by the plausibility requirement articulated in Twombly and Iqbal. Thomas v. Calero, 824 F. Supp. 2d 488, 497 (S.D.N.Y. 2011) (internal citations omitted).

42 U.S.C. § 1983

42 U.S.C. Section 1983 provides, in relevant part, that:"[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured." 42 U.S.C. § 1983. Section 1983 "is not itself a source of substantive rights, but a method for vindicating federal rights elsewhere conferred by those parts of the United States Constitution and federal statutes that it describes." Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979); see Patterson v. County of Oneida, 375 F.3d 206, 225 (2d Cir. 2004). To state a claim under § 1983, a plaintiff must allege "(1) the challenged conduct was attributable to a person who was acting under color of state law and (2) the conduct deprived the plaintiff of a right guaranteed by the U.S. Constitution." Castilla v. City of New York, No. 09 Civ. 5446, 2013 WL 1803896, at *2 (S.D.N.Y. April 25, 2013); see Cornejo v. Bell, 592 F.3d 121, 127 (2d Cir. 2010). Therefore, a Section 1983 claim has two essential elements: (1) the defendant acted under color of state law, and (2) as a result of the defendant's actions, the plaintiff suffered a denial of his federal statutory rights, or his constitutional rights or privileges. See Annis v. Cnty. of Westchester, 136 F.3d 239, 245 (2d Cir. 1998); Quinn v. Nassau Cnty. Police Dep't, 53 F. Supp. 2d 347, 354 (E.D.N.Y. 1999) (noting that Section 1983 "furnishes a cause of action for the violation of federal rights created by the Constitution") (citation omitted).

Bivens v. Six Unknown Agents

Under Bivens and its progeny, federal courts can hear suits for money damages against federal government officials accused of violating certain constitutional rights. Bivens 403 U.S. at 396-97; Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 66, 122 S.Ct. 515, 519 (2001) ("In Bivens ... we recognized for the first time an implied private action for damages against federal officersalleged to have violated a citizen's constitutional rights."); Schweiker v. Chilicky, 487 U.S. 412, 421, 108 S.Ct. 2460, 2466 (1988) ("In [Bivens], this Court held that the victim of a Fourth Amendment violation by federal officers acting under color of their authority may bring suit for money damages against the officers in federal court."); Carlson v. Green, 446 U.S. 14, 18-19, 100 S.Ct. 1468, 1471 (1980) ("Bivens established that the victims of a constitutional violation by a federal agent have a right to recover damages against the official in federal court despite the absence of any statute conferring such a right.").

"'Bivens actions are not significantly dissimilar to claims brought under [42 U.S.C.] §§ 1981 and 1983 in terms of the interests being protected, the relief which may be granted and the defenses which may be asserted.'" Chin v. Bowen, 833 F.2d 21, 23-24 (2d Cir.1987). "Because the two actions share the same 'practicalities of litigation,' federal courts have typically incorporated § 1983 law into Bivens actions." Tavarez v. Reno, 54 F.3d 109, 110 (2d Cir.1995) (citation omitted). Like § 1983 claims, Bivens actions preclude vicarious...