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Case 9:13-cv-00070-NAM-TWD Document 91 Filed 02/03/15 Page 1 of 93 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK SEDNEY DELANO, Plaintiff, v. 9:13-CV-00070 (NAM/TWD) R. RENDLE, et al, Defendants. APPEARANCES: OF COUNSEL: SEDNEY DELANO 96-A-2760 Plaintiff, pro se Gowanda Correctional Facility P.O. Box 311 Gowanda, NY 14070 LEMIRE, JOHNSON LAW FIRM GREGG T. JOHNSON, ESQ. Attorney for Defendant Collyer MARY ELIZABETH KISSANE, ESQ. 2534 Route 9 - P.O. Box 2485 Malta, NY 12020 THÉRÈSE WILEY DANCKS, United States Magistrate Judge ORDER AND REPORT-RECOMMENDATION I. INTRODUCTION Plaintiff, Sedney Delano, an inmate presently confined in Gowanda Correctional Facility, has commenced this pro se action civil rights action under 42 U.S.C. § 1983. Plaintiff’s claim against Defendant Douglas B. Collyer, an Assistant Clinton County District Attorney (“ADA Collyer” or “Collyer”), is that he illegally obtained a copy of Plaintiff’s medical records from Defendant B. Lecuyer (“Lecuyer”), Nurse Administrator at Clinton Correctional Facility in Case 9:13-cv-00070-NAM-TWD Document 91 Filed 02/03/15 Page 2 of 93 violation of 42 C.F.R. Part 2.1 (Dkt. No. 6 at ¶¶ 14, 17, 58.) Construing Plaintiff’s Amended Complaint (Dkt. No. 6) with “the utmost liberality in light of his pro se status,” the Hon. Norman A. Mordue, S.D.J., identified Plaintiff’s claim that Lecuyer had disclosed his medical records to defendant ADA Collyer without his consent as one for violation of his Fourteenth Amendment right to privacy, and determined that the claim survived initial review and required a response from Lecuyer and ADA Collyer.2 (Dkt. Nos. 6 at ¶ 5; 13 at 15.) ADA Collyer has moved to dismiss Plaintiff’s Amended Complaint in its entirety pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure (Dkt. No. 17) on the grounds that: (1) 42 C.F.R. Part 2 does not provide a private right of action and was not violated by Plaintiff in any event; (2) the Amended Complaint fails to state a claim against ADA Collyer under § 1983; (3) Collyer is entitled to prosecutorial immunity; and (4) Collyer is entitled to qualified immunity.3 (Dkt. No. 17-1.) Plaintiff has opposed the motion (Dkt. No. 33), and 1 A claim for conspiracy under § 1983 against ADA Collyer and other Defendants named in his Amended Complaint was dismissed without prejudice on initial review pursuant to 28 U.S.C. § 1915A. (Dkt. No. 13 at 13-14, 17.) Plaintiff moved for leave to file a second amended complaint reasserting his conspiracy claim against certain of the Defendants, including Collyer. (Dkt. No. 25.) The Court denied Plaintiff’s motion to amend. (Dkt. No. 73.) The basis for denial of Plaintiff’s request to reassert his conspiracy claims was the allegations of conspiracy in Plaintiff’s Second Amended Complaint were conclusory rendering his request to amend futile. (Dkt. No. 73 at 16.) Plaintiff thereafter filed another motion for leave to amend. (Dkt. Nos. 85, 89.) The motion was denied by the Court, in part because the proposed amendments were identical to those set forth in his first motion to amend, which the Court had already denied. (Dkt. No. 90 at 9.) 2 The District Court expressed no opinion as to whether Plaintiff’s claim could withstand a properly filed motion to dismiss or for summary judgment. (Dkt. No. 13 at 15.) 3 Collyer initially sought dismissal on the grounds of improper service of process. (Dkt. No. 17-1 at 11-12.) Collyer subsequently requested that he be allowed to withdraw that ground for dismissal from his motion. (Dkt. No. 53.) The Court granted the request by Text Order dated August 1, 2014. (Dkt. No. 54.) 2 Case 9:13-cv-00070-NAM-TWD Document 91 Filed 02/03/15 Page 3 of 93 Collyer has filed reply papers. (Dkt. No. 37.) For the reasons that follow, the Court recommends that ADA Collyer’s motion (Dkt. No. 17) be granted and the Amended Complaint be dismissed as against him with prejudice. II. LEGAL STANDARD GOVERNING RULE 12(b)(6) MOTIONS TO DISMISS A defendant may move to dismiss a complaint “for failure to state a claim upon which relief can be granted” under Rule 12(b)(6). The motion tests the formal legal sufficiency of the complaint by determining whether it conforms to Federal Rule of Civil Procedure 8(a)(2), which requires that a complaint include “a short and plain statement of the claim showing that the pleader is entitled to relief.” Bush v. Masiello, 55 F.R.D. 72, 74 (S.D.N.Y. 1972). Satisfaction of the requirement that a plaintiff “show” that he or she is entitled to relief requires that the complaint “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)). “Determining whether a complaint states a plausible claim for relief . requires the . court to draw on its judicial experience and common sense . [W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged but it has not shown that the pleader is entitled to relief.” Id. at 679 (internal citation and punctuation omitted). A complaint may be dismissed pursuant to Rule 12(b)(6) only where it appears that there are not “enough facts to state a claim that is plausible on its face.” Id. at 570. While Rule 8(a)(2) “does not require detailed factual allegations, . it demands more than an unadorned, the-defendant-harmed-me-accusation.” Iqbal, 556 U.S. at 678 (citation and internal quotation marks omitted). A complaint which “tenders ‘naked assertion[s]’ devoid of ‘further factual 3 Case 9:13-cv-00070-NAM-TWD Document 91 Filed 02/03/15 Page 4 of 93 enhancement’” does not suffice. Id. (citation omitted) “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). However, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. Where a party is proceeding pro se, the court is obliged to “read [the pro se party’s] supporting papers liberally, and . interpret them to raise the strongest arguments that they suggest.” See Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994); see also Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (courts remain obligated to construe pro se complaints liberally even after Twombly). “The mandate to read the papers of pro se litigants generously makes it appropriate to consider a plaintiff’s papers in opposition to a defendant’s motion to dismiss as effectively amending the allegations of the plaintiff’s complaint, to the extent that those factual allegations are consistent with the allegations of the Plaintiff’s complaint.” Robles v. Bleau, No. 07-CV- 0464, 2008 WL 4693153, at *6 and n.41, 2008 U.S. Dist. LEXIS 110029, at *26-27 and n.41 (N.D.N.Y. Oct. 22, 2008)4 (collecting cases). “Even where a document is not incorporated by reference [in the complaint], the court may nevertheless consider it [on a Rule 12(b)(6) motion without converting the motion to one for summary judgment] where the complaint ‘relies heavily upon its terms and effect,’ which renders the document ‘integral’ to the complaint.” Chambers v. 4 The Court will provide Plaintiff with copies of all unpublished decisions cited herein in accordance with the Second Circuit’s decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam). 4 Case 9:13-cv-00070-NAM-TWD Document 91 Filed 02/03/15 Page 5 of 93 Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002) (quoting Int’l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72 (2d Cir. 1995)). The Court may also consider documents “possessed by or known to the plaintiff and upon which [he] relied in bringing the suit.” ASTI Communications, Inc. v. The Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007).5 Where a pro se complaint fails to state a cause of action, the court generally “should not dismiss without granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (citation and internal quotation marks omitted). An opportunity to amend is not required where “the problem with [the plaintiff’s] causes of action is substantive” such that “better pleading will not cure it.” Cuoco, 222 F.3d at 112 (citation omitted). III. ANALYSIS A. Official Capacity Claim For Money Damages Against Collyer Plaintiff has sued ADA Collyer in both his official and individual capacity and seeks money damages against Collyer under § 1983.6 (Dkt. No. 6 at ¶¶ 18, 73.) The Court recommends the sua sponte dismissal of Plaintiff’s claim for money damages against Collyer in 5 The Court has concluded that it is appropriate to consider the documents submitted by Plaintiff in opposition to Collyer’s motion without the need to convert the motion to one for summary judgment inasmuch as they are clearly possessed by and known to him and appear to have been relied upon by him in asserting his claim against Collyer.