HARRIS v. POOLE

HUGH SCOTT, Magistrate Judge

Before the Court is the defendant's motion to dismiss (Docket No. 12); and plaintiff's motion to amend the complaint (Docket Nos. 17 and 20).

Plaintiff, Freddie Harris ("Harris") brings this action under 42 U.S.C. § 1983 claiming that his Fourth and Eighth Amendment rights were violated. Harris claims that Superintendent Poole, Corrections Officer Gresler and Corrections Officer Bouvia violated his constitutional right to be free from cruel and unusual punishment for failing to protect him from other inmates on July 7, 2003. He also asserts a claim against the "program committee." (Docket No. 1).

It appears that there is no employee named Gresler at the Five Point Correctional Facility. The docket does not reflect that service of the summons and complaint has been effectuated upon an individual named Gresler. The plaintiff now seeks to amend the complaint to name Corrections Officer Gushlaw instead of "Officer Gresler" as a defendant in this case. The plaintiff also seeks to name Corrections Officer Mark Mogavaro instead of the "program committee" as a defendant in this case.

In determining a motion under Rule 12(b)(6), the Court "must accept the material facts alleged in the complaint as true," and dismissal is warranted only where "it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim which would entitle him or her to relief." Branham v. Meachum, 77 F.3d. 626, 628 (2d Cir. 1996) quoting Staron v. McDonald's Corp., 51 F.3d 353, 355 (2d Cir. 1995); see also Weinstein v. Albright, 261 F.3d 127 (2d Cir. 2001). The issue is not whether a plaintiff is likely to prevail ultimately, but whether the claimant is entitled to offer evidence to support the claims. Indeed it may appear on the face of the pleading that a recovery is very remote and unlikely but that is not the test. Branham, 77 F.3d. at 628 citing Gant v. Wallingford Bd. of Educ., 69 F.3d 669, 673 (2d Cir. 1995).

The defendants argue that the original complaint should be dismissed on the following grounds: (1) that the plaintiff has sued the defendants only in their official capacities and such claims are barred by the Eleventh Amendment; (2) that the claim against defendant Poole must be dismissed for a lack of personal involvement; and (3) the plaintiff has not sufficiently alleged an Eighth Amendment claim. The defendants also assert that the motion to amend should be denied as futile.

Inasmuch as the original complaint asserts the claims in this matter against the defendants solely in their "official capacity," the original complaint would have to be dismissed for lack of jurisdiction. Ouern v. Jordan, 440 U.S. 332 (1979);Pennhurst State School and Hospital v. Halderman, 446 U.S. 89, 100 (1984); Yoonessi v. SUNY, 862 F.Supp. 1005, 10122 (W.D.N.Y. 1994). However, the Court grants the plaintiff an opportunity to file an amended complaint. The record before the Court does not include a complete version of the plaintiff's proposed amended complaint. The plaintiff has only filed an amended "statement of facts" (Docket No. 18). Based upon the record, at this time, the Court cannot conclude that the plaintiff can assert no set of facts in support of the claim which would entitle him or her to relief. The Court is constrained to provide the plaintiff an opportunity to amend the complaint in this matter. The plaintiff's motion to file an amended complaint is granted. The "statement of facts" (Docket No. 18) is not sufficient to constitute the amended complaint in this matter. If the plaintiff wishes to maintain this action, he is directed to file a complete amended complaint with in 30 days of the date of this Order.

The defendant's motion to dismiss (Docket No. 12) is granted in part and denied in part; the plaintiff's motion to amend the complaint (Docket No. 17 20) is granted in part and denied in part.

So Ordered.