Lewis v. Delmar

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

ROMMEL LEWIS, et al.,

Plaintiff, Case # 21-CV-6738-FPG

v. DECISION & ORDER

T. DELMAR, et al.,

Defendants.

INTRODUCTION

Plaintiff Rommel Lewis, pro se, brings this civil rights action against Defendants Amy

Lamanna, Matthew Thoms, and Donald Uhler. ECF No. 23. Currently before the Court is

Defendants’ motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil

Procedure 12(b)(6).1 ECF No. 38. Plaintiff has not filed an opposition to the motion. For the

reasons that follow, the motion to dismiss is GRANTED IN PART and DENIED IN PART.

LEGAL STANDARD

In addressing a Rule 12(b)(6) motion to dismiss, the Court “assum[es] all well-pleaded,

nonconclusory factual allegations in the complaint to be true[,]” Harrington v. Cnty. of Suffolk,

607 F.3d 31, 33 (2d Cir. 2010) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)), but it is “not

required to credit conclusory allegations or legal conclusions couched as factual allegations,”

Hamilton v. Westchester Cnty., 3 F.4th 86, 91 (2d Cir. 2021) (quoting Iqbal, 556 U.S. at 678).

Although detailed allegations are not required, “a complaint must contain sufficient factual matter,

1 Although captioned as a motion for summary judgment, Defendants cite to Rule 12(b)(6), request that the amended

complaint be dismissed, and state that they “reserve the right” to file a summary judgment motion in the future. ECF

No. 38-1 at 5. Accordingly, the Court will treat the motion as seeking dismissal pursuant to Rule 12(b)(6). See Hart

v. Artus, No. 16-CV-6808, 2021 WL 3022293, at *8 (W.D.N.Y. July 16, 2021) (construing a motion as seeking

dismissal where it cited to Rule 12(b)(6) despite being originally labeled as a motion for summary judgment,

“apparently due to an editing oversight”).

accepted as true, to state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); ATSI Commc’ns, Inc. v. Shaar

Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (“To survive dismissal, the plaintiff must provide the

grounds upon which his claim rests through factual allegations sufficient to raise a right to relief

above the speculative level.” (internal quotation marks omitted). A claim will be considered

facially plausible “when the plaintiff pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at

678. A court reviewing a 12(b)(6) motion “must take the allegations as true, no matter how

skeptical the court may be,” the exception being “allegations that are sufficiently fantastic to defy

reality as we know it.” Iqbal, 556 U.S. at 696. “In reviewing a motion to dismiss, we may consider

[not only] the facts alleged in the complaint, [but also] documents attached to the complaint as

exhibits, and documents incorporated by reference in the complaint.” Sabir v. Williams, 52 F.4th

51, 54 (2d Cir. 2022) (internal quotation marks omitted); see also Moco v. Janik, No. 17-CV-398,

2019 WL 3751628, at *3 (W.D.N.Y. Aug. 8, 2019) (“When a court considers a Rule 12(b)(6)

motion, it may consider documents that are attached to, incorporated by reference in, or integral

to the complaint; and it may also consider matters that are subject to judicial notice.” (internal

quotation marks omitted)).

“To state a valid claim under 42 U.S.C. § 1983, the plaintiff must allege that the challenged

conduct (1) was attributable to a person acting under color of state law, and (2) deprived the

plaintiff of a right, privilege, or immunity secured by the Constitution or laws of the United States.”

Whalen v. Cnty. of Fulton, 126 F.3d 400, 405 (2d Cir. 1997). “Section 1983 itself creates no

substantive rights; it provides only a procedure for redress for the deprivation of rights established

elsewhere.” Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993) (citing City of Oklahoma City v.

Tuttle, 471 U.S. 808, 816 (1985)).

Although Plaintiff has failed to respond to the motion to dismiss, this “does not by itself

merit dismissal of [the] complaint.” Groenow v. Williams, No. 13-CV-3961, 2014 WL 941276, at

*2 (S.D.N.Y. Mar. 11, 2014) (citing Goldberg v. Danaher, 599 F.3d 181, 183-84 (2d Cir. 2010)).

Even though the motion is unopposed, “the Court remains obligated to review the pleadings and

determine whether there is a sufficient basis for granting the motion.” Groenow, 2014 WL 941276,

at *2. Additionally, courts must read a pro se litigant’s pleadings with “special solicitude” and

interpret them to raise the strongest claims they could suggest. Id. (citing Triestman v. Fed. Bureau

of Prisons, 470 F.3d 471, 474-75 (2d Cir. 2006)).

BACKGROUND

The Court has, in a previous order, already provided a recitation of the facts found in

Plaintiff’s Second Amended Complaint. See ECF No. 24 at 5-9. The Court will provide a brief

summary of the facts below; to the extent that a detailed recounting of the record is needed, the

Court refers to its prior order.

In February 2016, Plaintiff submitted a marriage request to the Superintendent of Clinton

Correctional Facility (“Clinton”), where Plaintiff was confined. ECF No. 23 ¶ 9. Plaintiff sought

to marry Keisha Knight-Lilly, a former New York State Department of Corrections and

Community Supervision (“DOCCS”) employee who had resigned her position. Id. at 26. The

Superintendent approved the marriage request, but subsequently suspended Knight-Lily’s

visitation privileges indefinitely “[b]ased on an Office of Special Investigations investigation” into

Knight-Lilly’s interactions with Plaintiff while she was still a DOCCS employee. Id. ¶¶ 10-12,

24. In March 2019, after Plaintiff was transferred to Upstate Correctional Facility, Uhler notified

Knight-Lilly that her visitation privileges were suspended indefinitely due to her status as a former

DOCCS employee. Id. ¶¶ 32-34. In January, after Plaintiff was transferred to Five Points, then-

Superintendent Thoms declined to change Knight-Lilly’s visitation status. Id. ¶ 46. Lamanna

subsequently succeeded Thoms as Superintendent of Five Points, and again declined to change

Knight-Lilly’s visitation privileges because of her being a former DOCCS employee. Id. ¶¶ 50-

51. Lamanna also informed Plaintiff that the Inmate Grievance Review Committee staff would

return any grievance he submitted about Knight-Lilly’s ability to visit. Id. ¶ 52.

In November 2021, Plaintiff brought this action with Knight-Lilly as a co-plaintiff. See

ECF No. 2. Plaintiff filed an amended complaint, ECF No. 10, and a Second Amended

Complaint,2 ECF No. 23. In January 2023, the Court dismissed most of Plaintiff’s claims but

permitted Plaintiff’s right-to-intimate association claim under the First and Fourteenth

Amendment to proceed. ECF No. 24. In January 2024, the Court terminated Knight-Lilly as a

plaintiff due to her failure to apprise the Court of her new address or respond to the Court’s order

to show cause. ECF No. 30.

In April 2024, Defendants filed the instant motion, arguing that the Second Amended

Complaint should be dismissed on qualified immunity grounds. ECF No. 38. The Court notified

Plaintiff of the motion and mailed said notice to Plaintiff. ECF No. 39. Plaintiff has not responded,

nor has the notice been returned as undelivered.

DISCUSSION

“It is well settled in this Circuit that a defendant’s ability to rely on qualified immunity

from liability is a question of law for the court to decide only when the facts are not in dispute.”

Flores v. City of New York, No. 21-CV-1680, 2022 WL 4705949, at *10 (S.D.N.Y. Aug. 8, 2022),

2 Although the pleading, ECF No. 23, is captioned as a “First Amended Complaint,” it is the Second Amended

Complaint, and the Court will refer to it as such in this Order.

report and recommendation adopted, 2022 WL 4592892 (Sept. 30, 2022) (citing Lennon v. Miller,

66 F.3d 416, 421 (2d Cir. 1995)); see also Finnegan v. Fountain, 915 F.2d 817, 821 (2d Cir. 1990)

(“Once disputed factual issues are resolved, the application of qualified immunity is . . . ultimately

a question of law for the court to decide.”). Although qualified immunity claims “should be

decided as early as possible in a case,” it “is often best decided on a motion for summary judgment

when the details of the alleged deprivations are more fully developed.” Walker v. Schult, 717 F.3d

119, 130 (2d Cir. 2013); see also McKenna v. Wright, 386 F.3d 432, 435-36 (2d Cir. 2004)

(“[U]sually, the defense of qualified immunity cannot support the grant of a [Rule] 12(b)(6) motion

for failure to state a claim upon which relief can be granted.”).

“[B]y presenting [their] immunity defense on a Rule 12(b)(6) motion instead of a motion

for summary judgment[, the defendants] must accept the more stringent standard applicable to this

procedural route.” McKenna, 386 F.3d at 436. “Briefly summarized, we accept the complaint’s

factual allegations as true and draw all reasonable inferences in the plaintiffs’ favor, including both

those that support the claim and those that defeat the immunity defense.” Edrei v. Maguire, 892

F.3d 525, 532 (2d Cir. 2018) (internal quotation marks omitted). “The defense will succeed only

where entitlement to qualified immunity can be established based solely on facts appearing on the

face of the complaint.” Smith v. Arrowood, No. 21-CV-6318, 2022 WL 3927884, at *8 (W.D.N.Y.

Aug. 31, 2022) (internal quotation marks and alterations omitted). “But that does not mean that

qualified immunity can never be established at the pleading stage. To the contrary, every case

must be assessed on the specific facts alleged in the complaint.” Garcia v. Does, 779 F.3d 84, 97

(2d Cir. 2015). Rather, a dismissal under Rule 12(b)(6) on qualified immunity grounds “may be

appropriate where, for example, a defendant can demonstrate that, as a matter of law, the

constitutional right that is alleged to have been violated was not clearly established at the time of

the alleged violation.” Hart v. Artus, No. 16-CV-6808, 2021 WL 3022293, at *14 (W.D.N.Y. July

16, 2021) (internal quotation marks omitted).

“To decide whether to grant a public official’s motion [to dismiss] based on qualified

immunity, courts ask two questions: (1) whether the facts, viewed in the plaintiff’s favor, show

that the official’s conduct violated a constitutional right; and (2) if so, whether the right at issue

was clearly established at the time of the alleged violation.” Searle v. Red Creek Cent. Sch. Dist.,

No. 21-CV-6086, 2021 WL 5086405, at *7 (W.D.N.Y. Nov. 2, 2021). Rather than take these

questions in sequence, a court “may determine that any constitutional violation was not clearly

established” without deciding whether a constitutional violation occurred. Brown v. City of N.Y.,

No. 13-CV-1018, 2016 WL 1611502, at *4 (S.D.N.Y. Apr. 20, 2016), aff’d, 862 F.3d 182 (2d Cir.

2017).

To answer the question of whether a right was “clearly established” at the relevant time, a

court in this Circuit considers whether “(1) the right was defined with reasonable clarity, (2) the

Supreme Court or the Second Circuit has confirmed the existence of the right, and (3) a reasonable

defendant would have understood from the existing law that his conduct was unlawful.” Bailey v.

Pataki, 708 F.3d 391, 404-05 (2d Cir. 2013). “The Supreme Court has repeatedly told courts not

to define clearly established law at a high level of generality. Although case law does not require

a case directly on point for a right to be clearly established, existing precedent must have placed

the statutory or constitutional question beyond debate.” Wills v. Microgenics Corp., No. 20-CV-

4432, 2021 WL 3516419, at *4 (E.D.N.Y. Aug. 10, 2021) (internal quotation marks, brackets, and

citations omitted). “In making this determination,” a court in this Circuit considers “Supreme

Court and Second Circuit precedent as it existed at the time of the challenged conduct.” Booker

v. Graham, 974 F.3d 101, 106 (2d Cir. 2020).

The Court has construed Plaintiff’s amended complaint as raising a right-to-intimate-

association claim. See ECF No. 25 at 21-25; see also Adler v. Pataki, 185 F.3d 35, 44 (2d Cir.

1999) (“[A] spouse’s claim that adverse action was taken solely against that spouse in retaliation

for conduct of the other spouse should be analyzed as a claimed violation of a First Amendment

right of intimate association.”); King v. Keyser, No. 18-CV-11301, 2020 WL 168285, *4 (S.D.N.Y.

Jan. 13, 2020) (construing a right-to-intimate-association claim where plaintiff alleged she was

unable to participate in family reunion programs with her prisoner husband). Specifically, the

Court interprets the amended complaint as claiming that Defendants violated his right to “the

choice to enter into and maintain certain intimate human relationships without undue intrusion by

the State.” Matusick v. Erie Cnty. Water Auth., 757 F.3d 31, 57 (2d Cir. 2014) (internal quotation

marks and alterations omitted). Although “the general right to intimate association has been

clearly established” in prior caselaw, Patel v. Searles, 305 F.3d 130, 139 (2d Cir. 2002), “qualified

immunity does not turn on general propositions,” Ranta v. City of New York, No. 14-CV-3794,

2015 WL 5821658, at *6 (E.D.N.Y. Sept. 30, 2015). “Rather, the essential question is whether,

[at the time of the alleged events], the [r]ight was established in a particularized sense so that the

contours of the right [would have been] clear to a reasonable official.” Id. (internal quotation

marks omitted).

Plaintiff has not responded to Defendants’ qualified immunity argument, and therefore has

not provided the Court with any Supreme Court or Second Circuit precedent to suggest a prisoner’s

right to intimate association with a partner or spouse is well-established. From the Court’s own

research, however, no such precedent appears to exist. See Alvarez v. Bause, No. 22-CV-186,

2023 WL 1765415, at *5 (N.D.N.Y. Feb. 3, 2023) (“[T]he Court in unaware of any case law in the

Second Circuit addressing the boundaries of the Right to Intimate Association for inmates.”); see

also King, 2020 WL 168285, *4 (“Plaintiff’s right to full-contact visitation with her spouse in

prison has not been clearly established.”). When addressing this issue via summary order, the

Second Circuit concluded that “[c]ases in this circuit [] have not clearly established a right to

spousal visitation in prison” and accordingly affirmed that “qualified immunity [wa]s appropriate”

for a right-to-intimate-association claim. Malave v. Weir, 750 F. App’x 65, 67, 67 n.3 (2d Cir.

2019).3 In light of this, and in the absence of any contrary case law, the Court agrees with

Defendants that qualified immunity is appropriate here because Plaintiff’s right to intimate

association was not clearly established.

Even though qualified immunity is appropriate, however, that does not end the inquiry.

Qualified immunity “protects government officials from suits brought against them in their

individual capacity for money damages,” Vega v. Semple, 963 F.3d 259, 272 (2d Cir. 2020), but it

“does not protect a public official against a claim for declaratory or injunctive relief,” Vincent v.

Yelich, 718 F.3d 157, 177 (2d Cir. 2013). In the Second Amended Complaint, Plaintiff seeks not

only money damages, but also the restoration of Knight-Lilly’s visitation privileges, permission to

have a marriage ceremony, participation in the Family Reunion Program, and an apology letter.

ECF No. 23 at 18-19. Defendants do not acknowledge this in their motion to dismiss and the

record does not reflect that Plaintiff’s claims for non-monetary relief were mooted or abandoned.

Accordingly, the Court will grant Defendants’ motion to dismiss only as to Plaintiff’s claims for

money damages and will allow Plaintiff’s claims for injunctive and declaratory relief to proceed.

3 The Court does note that, in an earlier unpublished summary order, the Second Circuit stated that “the intentional or

malicious deprivation of visitation to a prisoner, even on one occasion, could rise to the level of a constitutional

violation.” Mills v. Fischer, 497 F. App’x 114, 116 (2d Cir. 2012) (summary order). District courts addressing the

issue of prisoner right-to-intimate-association have found, however, that this statement “was (i) dicta, (ii) equivocal,

(iii) appeared in an unpublished, non-precedential summary order, and (iv) relied on cases that have nothing to do

with prison visitation.” King, 2020 WL 168285, *4. At any rate, the Second Circuit acknowledged in Malave that

the statement in Mills did not serve to create clearly established law. See Malave, 750 F. App’x at 67 (“In any event,

[Mills] does not have precedential value and therefore does not create clearly established law.”).

CONCLUSION

For the reasons stated herein, Defendants’ motion to dismiss (ECF No. 38) is GRANTED

IN PART and DENIED IN PART. Plaintiffs claims for punitive and compensatory damages are

DISMISSED WITH PREJUDICE. Plaintiff's claims for injunctive and declaratory relief will

proceed. Defendants must file an answer within 21 days of entry of this Order.

IT IS SO ORDERED.

Dated: October 8, 2024

Rochester, New York .

H NK P. GE _ JR.

United States District Judge

Western District of New York