Tolliver v. Jordan

ERIC TOLLIVER, Plaintiff, v. LIEUTENANT JORDAN, C.O., et al. Defendants.

No. 19-CV-11823 (PMH)

United States District Court, S.D. New York

July 1, 2021

MEMORANDUM OPINION AND ORDER

PHILIP M. HALPERN, UNITED STATES DISTRICT JUDGE

Plaintiff Eric Tolliver (“Plaintiff”), a prisoner currently incarcerated at Shawangunk Correctional Facility (“Shawangunk”), who is proceeding pro se and in forma pauperis (“IFP”), ^[1]brings this action under 42 U.S.C. § 1983 against Defendants Lieutenant Jordan (“Lt. Jordan”), C.O. DePaolo s/h/a C.O. DePalo (“DePaolo”), C.O. E. Bonnell (“Bonnell”), Gabriela Vega (“Vega”) and Richard Houck (“Houck, ” and collectively “Defendants”) for allegedly transferring him to another facility in retaliation for his having filed grievances and civil actions against correction officers while incarcerated in Sullivan Correctional Facility (“Sullivan”). (Doc. 17, “Am Compl.”).^[2] Defendants filed a motion to dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) on January 18, 2021. (Doc. 35; Doc. 36, “Defs Br.”). On February 22, 2021, Plaintiff's first opposition to Defendants' motion to dismiss was filed. (Doc. 41, “Pl. First Opp.”). By letter dated February 22, 2021, and filed on February 25, 2021, Plaintiff requested that the Court “disregard” his first opposition, and consider instead the “re-placement” opposition, characterized as a “reply affirmation, ” that he submitted with his letter. (Doc. 47; Doc. 48 “Pl. Opp.”). Plaintiff also sought, through his opposition, sanctions and a stay of proceedings.^[3] (Pl. Opp. at 16). Defendants' motion to dismiss was fully briefed with the filing of their reply memorandum of law on April 9, 2021. (Doc. 52, “Reply Br.†).

Separately, by letter dated January 26, 2021, and filed on February 17, 2021, Plaintiff advised the Court that he had been transferred to Shawangunk and requested that the Court transfer him back to Sing Sing Correctional Facility (“Sing Sing”). (Doc. 38). On February 18, 2021, the Court issued an Order construing Plaintiff's request as a letter-motion seeking injunctive relief, and directed Defendants to respond by February 26, 2021. (Doc. 39). On February 25, 2021, Defendants filed their response to Plaintiff's request for injunctive relief (Doc. 45), and on February 26, 2021, the Court issued an Order denying Plaintiff's request for a preliminary injunction transferring him back to Sing Sing. (Doc. 46). Plaintiff filed a motion for reconsideration of the Court's Order on March 10, 2021. (Doc. 49). Defendants filed their memorandum of law in opposition to Plaintiff's motion for reconsideration on March 23, 2021. (Doc. 50). On April 5, 2021, Plaintiff's “reply affirmation” was filed. (Doc. 51).

For the reasons set forth below, Defendants' motion to dismiss pursuant to Rules 12(b)(1) and 12(b)(6) is GRANTED IN PART, and Plaintiff's motion for reconsideration is DENIED.

BACKGROUND

Plaintiff alleges that while he was incarcerated in Sullivan, he filed grievances, lawsuits, and a “criminal complaint against some of the” Defendants. (Am. Compl. at 6). Defendants, in response to his filings, threatened that they would have Plaintiff “packed up and shipped” to a facility far away from his family if he did not withdraw his grievances and lawsuits. (Id.). Plaintiff refused to withdraw his complaints and he was transferred to Attica Correctional Facility (“Attica”).^[4] (Id.). While incarcerated in Attica, Plaintiff filed complaints concerning his lack of access to the law library. (Id. at 6, 39, 43). Plaintiff alleges that he was subsequently transferred to Five Points Correctional Facility (“Five Points”) in retaliation for his complaints filed while he was in Attica. As a result, Plaintiff alleges that he and his wife could not participate in any “Family Reunion Program.” (Id. at 6).

Plaintiff annexes to his complaint four exhibits, which are compilations of his grievances, lawsuit, and the “criminal complaint” he filed while incarcerated in Sullivan, Attica, and Five Points, as well as correspondence from the facilities in response to his complaints. (Id. at 10-62). Plaintiff alleges through these exhibits that: (1) when he was in Sullivan, Bonnell and DePaolo failed to intervene when another inmate allegedly assaulted Plaintiff (id. at 13-15); (2) Defendants filed a misbehavior report that falsely accused him of getting in a fight with a high-ranking gang member (id. at 11, 14, 21, 27, 3258); (3) Lt. Jordan tampered with and destroyed portions of a disciplinary hearing tape (id. at 11-12, 21-22, 27, 32); and (4) Defendants thereafter had him transferred to Attica (id. at 22, 32) and then to Five Points, two of the most violent and “gang-infested” prisons in the state, knowing that Plaintiff would be subject to gang retaliation (id. at 58).^[5]

STANDARD OF REVIEW

I. Federal Rule of Civil Procedure 12(b)(1)

“Federal courts are courts of limited jurisdiction, and Rule 12(b)(1) requires dismissal of an action ‘when the district court lacks the statutory or constitutional power to adjudicate it.'” Schwartz v. Hitrons Sols., Inc., 397 F.Supp.3d 357, 364 (S.D.N.Y. 2019) (quoting Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000)). “The party invoking the Court's jurisdiction bears the burden of establishing jurisdiction exists.” Hettler v. Entergy Enters., Inc., 15 F.Supp.3d 447, 450 (S.D.N.Y. 2014) (citing Conyers v. Rossides, 558 F.3d 137, 143 (2d Cir. 2009)). When deciding a motion to dismiss under Rule 12(b)(1) at the pleadings stage, “the Court ‘must accept as true all material facts alleged in the complaint and draw all reasonable inferences in the plaintiff's favor.'” Id. (quoting Conyers, 558 F.3d at 143); see also Doe v. Trump Corp., 385 F.Supp.3d 265, 274 (S.D.N.Y. 2019).

When “the defendant moves for dismissal under Rule 12(b)(1) . . . as well as on other grounds, the court should consider the Rule 12(b)(1) challenge first since if it must dismiss the complaint for lack of subject matter jurisdiction, the accompanying defenses and objections become moot and do not need to be determined.” Saint-Amour v. Richmond Org., Inc., 388 F.Supp.3d 277, 286 (S.D.N.Y. 2019) (quoting United States v. New York City Dep't of Hous., Pres. & Dev., No. 09-CV-6547, 2012 WL 4017338, at *3 (S.D.N.Y. Sept. 10, 2012)).

II. Federal Rule of Civil Procedure 12(b)(6)

On a Rule 12(b)(6) motion, a court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). “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.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible on its face “when the ple[d] factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). “The plausibility standard is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that a defendant acted unlawfully.” Id. The factual allegations pled “must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555.

“When there are well-ple[d] factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S. at 679. Thus, the court must “take all well-ple[d] factual allegations as true, and all reasonable inferences are drawn and viewed in a light most favorable to the plaintiff[].” Leeds v. Meltz, 85 F.3d 51, 53 (2d Cir. 1996). The presumption of truth, however, “‘is inapplicable to legal conclusions,' and ‘[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.'” Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (quoting Iqbal, 556 U.S. at 678 (alteration in original)). Therefore, a plaintiff must provide “more than labels and conclusions” to show entitlement to relief. Twombly, 550 U.S. at 555.

A complaint submitted by a pro se plaintiff, “however inartfully ple[d], must be held to less stringent standards than formal pleadings drafted by lawyers.” Estelle v. Gamble, 429 U.S. 97, 106 (1976) (quoting Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (internal quotation marks omitted)). Because pro se plaintiffs “‘are often unfamiliar with the formalities of pleading requirements,' courts must apply a more flexible standard in determining the sufficiency of a pro se [complaint] than they would in reviewing a pleading submitted by counsel.'” Smith v. U.S. Dep't of Just., 218 F.Supp.2d 357 (W.D.N.Y. 2002) (quoting Platsky v. Cent. Intelligence Agency, 953 F.2d 26, 28 (2d Cir. 1991)). While “[p]ro se complaints are held to less stringent standards than those drafted by lawyers, even following Twombly and Iqbal . . . dismissal of a pro se complaint is nevertheless appropriate where a plaintiff has clearly failed to meet minimum pleading requirements.” Thomas v. Westchester Cty., No. 12-CV-6718, 2013 WL 3357171, at *2 (S.D.N.Y. July 3, 2013) (internal citations omitted); see also Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010) (“Even in a pro se case . . . although a court must accept as true all of the allegations . . . in a complaint, that tenet is inapplicable to legal conclusions, and threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” (internal quotation marks omitted)).

Therefore while the Court must “draw the most favorable inferences that [a plaintiff's] complaint supports, [it] cannot invent factual allegations that [a plaintiff] has not pled.” Chappius, 618 F.3d at 170. ...