UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

__________

August Term, 2002

Argued: March 6, 2003 Decided: August 13, 2003

Docket No. 02-0097 (L); 02-0233

_________________________________________________________

 MICHAEL WEBB, DONYELL BECKWITH, WILLIE

 BRADLEY, MARIANO CAPPELANMENA, TIMOTHY

 COLLIER, STEVEN CORBETT, RENE ELLIS, LEON

 HARDY, TOMMY JACKSON, JR., JEFFREY McNEIL,

 BRIAN MORGAN, JIMMY RAMOS, SHAKA REYNOLDS,

 ERIC SMITH, ANGEL VALENTINE, JAMES WALLS, 

 EDWARD WALSH, SAM WATERS, RICHARD WEATHERLY, 

 HARRY WILLIAMS, RODNEY WRIGHT, HERBERT

 BURGESS, MANNY CABASSA, ANDRES CHAPARRO

 SHAWN CORWALL, GERALD DeROSSE, MICHAEL

 McKENZIE, DANIEL MORALES, THOMAS MURPHY, 

 CORNELIUS RICKS, and GEORGE SIMMONS,

Plaintiffs-Appellants,

 -v-

 

GLEN S. GOORD, Individually and as Commissioner of the

New York State Dept. of Correctional Services, DR. LESTER

WRIGHT, Individually and as Associate Commissioner for

Health Services of the New York State Dept. of Correctional 

Services, FRANK HEADLEY, Individually and as

Superintendent of the Arthur Kill Correctional Facility,

DANIEL SENKOWSKI, Individually and as Superintendent 

of the Clinton Correctional Facility, CHARLES GREINER, 

Individually and as Superintendent of the Sing Sing Correctional 

Facility, EARL COUTURE, Individually and as Superintendent 

of the Governeur Correctional Facility, MICHAEL McGINNES, 

Individually and as Superintendent of the Southport Correctional 

Facility, EDWARD REYNOLDS, Individually and as Superintendent of the Mohawk Correctional Facility, ROBERT

KUHLMANN, Individually and as Superintendent of the
2

Sullivan Correctional Facility, MELVIN L. HOLLINS,

Individually and as Superintendent of the Oneida Correctional Facility, CONNELLY, Mr., as Deputy Director of 

Security Sing Sing Correctional Facility, GEBBER, Mr. as

Correctional Counsel of Sing Sing Correctional Facility,

PETER LACY, Individually and as Superintendent of the 

Bare Hill Correctional Facility, BRIAN MALONE, as Inspector

General of the DOCS, BERIOS, Sgt., NETTI CONDELL, 

Correction Counselor, JOSEPH McCOY, Individually and as 

Superintendent of the Cayuga Correctional Facility, HUGGINS

Sgt., BLANKENSHIP,Sgt., DANIEL CRUMB, Officer, 

PUTNAM, Officer, JOHN DOE KELLY, Officer, WEIN, 

Officer, FOSTER, Officer, CALDWELL, Lt., BISHOP, Sgt., 

CONNELLY, Deputy Superintendent, SHERMAN, Lt., FARREL, 

Lt., VAUGHAN, Sgt., HOOD, Correction Officer, CHARLES 

DUFRAIN, Individually and as Superintendent of the Franklin 

Correctional Facility, SWEENEY, Mr., as Deputy Superintendent 

of Security at the Governeur Correctional Facility, RABSATT, 

Captain, BOURGAL, Sgt., R. NAGLE, Correction Officer, T. 

LINK, Correction Officer,

Defendants-Appellees.

_________________________________________________________

BEFORE: POOLER, SACK, and B.D. PARKER, JR., Circuit Judges.

Appeal from the Decision and Order, dated March 28, 2002, of the United States District

Court of Southern District of New York (Victor Marrero, Judge) dismissing the plaintiffs’ second

amended complaint.

Affirmed.

__________

PAUL E. KERSON, 

John F. Duane (of counsel),

Koppell, Leavitt, Kerson, Leffler & Duane,

New York, NY, for Plaintiffs-Appellants.

DAVID LAWRENCE III, Assistant Solicitor General,

Eliot Spitzer, Attorney General of the State of New York,

and MICHAELBELOHLAVEK, Deputy Solicitor General (of 

counsel), New York, NY, for Defendants-Appellees.
3

POOLER, Circuit Judge:

The original complaint in this action was filed on October 8, 1999, and an amended

complaint was filed on January 14, 2000 before the defendants had responded to the original

complaint. The district court dismissed the amended complaint pursuant to Federal Rule of Civil

Procedure 12(b)(6), but granted the plaintiffs an opportunity to replead their allegations. Webb

v. Goord, 197 F.R.D. 98 (S.D.N.Y. 2000). The plaintiffs filed a second amended complaint on

October 27, 2000, but the district court again ruled that dismissal was warranted pursuant to Rule

12(b)(6). Webb v. Goord, 192 F. Supp. 2d 208 (S.D.N.Y. 2002). The plaintiffs appeal from this

second dismissal.

FACTS

The plaintiffs, with the exception of one who has been released, are inmates incarcerated

in various correctional facilities administered by the New York State Department of Correctional

Services (“DOCS”). The second amended complaint names an array of defendants: (1) the

Commissioner of DOCS; (2) the Health Commissioner of DOCS; (3) the Inspector General of

DOCS; (4) the Superintendents of fourteen separate correctional facilities administered by

DOCS; (5) approximately fifty other DOCS employees, most of whom are corrections officers,

and many of whom are identified only by their last name; and (6) one hundred “John Doe”

defendants alleged to be DOCS corrections officers. 

The second amended complaint alleges that each of the plaintiffs suffered a violation of

his civil rights as a result of actions, or failures to act, on the part of DOCS officials and

employees. Specifically, the second amended complaint alleges the occurrence of more than

forty incidents that resulted in serious physical injury to the plaintiffs, including attacks by

corrections officers, improper physical punishments, attacks by other inmates for which the
4

defendants are responsible because of their failure to provide a safe prison environment, and

denials of medical care to plaintiffs suffering from injury and illness.

Some features of these allegations stand out. First, the second amended complaint only

sets forth the most basic facts of the incidents alleged to have resulted in injury. For the most

part, each plaintiff is allotted one paragraph of the complaint, which provides the place and

approximate time of the incident involving him, along with a sentence or two concerning the

injury alleged to have arisen from the incident.

Further, the incidents are dispersed across time and space. That is, the events complained

of are alleged to have taken place at fourteen separate DOCS facilities and, while most of the

incidents are alleged to have taken place between 1997 and 1999, incidents occurring as long ago

as 1990 are included in the second amended complaint. The plaintiffs’ allegations therefore

share a common nucleus of operative fact only in a very broad sense.

The second amended complaint asserts federal causes of action under the Eighth

Amendment to the United States Constitution and under 42 U.S.C. Section 1983. It also asserts

common law claims of assault, intentional infliction of emotional distress, respondeat superior

liability, negligence, and “denial of medical treatment.”

In spite of the brevity with which the plaintiffs’ factual allegations are set forth, the

second amended complaint constitutes a catalog of violence and ill treatment toward the

plaintiffs. Numerous incidents resulting in, among other things, lacerations, serious bruises and

fractures are alleged. For example, plaintiff Edward Walsh alleges that, after DOCS officials

denied his request to be placed in protective custody, he was attacked so brutally by other

inmates that he received facial wounds requiring sixty-eight stitches. Plaintiff Rodney Wright

alleges that he required thirty-five stitches to close a wound received as a result of an attack by

other inmates. Plaintiff Michael McKenzie alleges that an attack by corrections officers left him
1

 The article was excerpted from a highly acclaimed book. See Ted Conover, Newjack:

Guarding Sing Sing (2000). The book won the National Book Critics Circle Award and was a

finalist for the Pulitzer Prize.

5

with seventeen broken bones in his face. It is neither trite nor patronizing for the Court to

recognize the seriousness of such allegations.

After the first amended complaint was filed, the plaintiffs sought discovery as to matters

going far beyond the specific events alleged therein. For example, the plaintiffs requested that

the defendants produce “[a] list of the number of incidents in the past year where prisoners

received 5 or more stitches” and “[a] list of the number and nature of complaints by prisoners

against [DOCS] personnel for brutality and/or use of excessive force.” 

The second amended complaint specifically seeks relief only in the form of compensatory

damages for each plaintiff. In correspondence with the district court, however, both before and

after the dismissal of the second amended complaint, the plaintiffs’ counsel asserted that much

broader relief was appropriate. In a letter to the district court, dated April 3, 2000, the plaintiffs’

counsel asserted that “an extraordinary event” had occurred in that The New Yorker magazine, in

its issue of April 3, 2000, had published an article entitled “Guarding Sing Sing.” The article,

written by Ted Conover, a journalist who had taken a job as a corrections officer at a DOCS

facility, describes several instances of brutality toward inmates.1 None of these instances of

brutality, however, involved any of the plaintiffs. Nevertheless, the plaintiffs’ counsel asserted

that the article “constitutes substantial admissions that tend to prove all of the allegations in this

case and cry out for the appointment of a Special Master to govern the state prison system

pursuant to the Prison Litigation Reform Act (PLRA), 18 U.S.C. Section 3626.” 

Further, after the second amended complaint was dismissed, the plaintiffs moved for

reconsideration in light of the U.S. Supreme Court’s decision in Hope v. Pelzer, 536 U.S. 730

(2002), which was issued on June 27, 2002. According to the plaintiffs’ counsel, Hope not only
6

established that summary judgment should be granted in favor of the plaintiffs, but also that “[a]

Special Master should be appointed to run DOCS pursuant to the Prison Litigation Reform Act

(PLRA), 18 U.S.C. Section 3626.” The district court subsequently denied the motion for

reconsideration.

DISCUSSION

We review de novo a district court’s dismissal of a complaint pursuant to Federal Rule of

Civil Procedure 12(b)(6). See Scutti Enters., LLC v. Park Place Entertainment Corp., 322 F.3d

211, 214 (2d Cir. 2003). Employing this standard, we affirm the district court.

I. The General Inadequacy of the Second Amended Complaint.

In its opinion dismissing the first amended complaint, the district court expressed

puzzlement that the instant action “although not so labeled, [is] akin to a class action challenging

State prison conditions and operational practices.” Webb v. Goord, 197 F.R.D. 98, 100

(S.D.N.Y. 2000). In none of the three complaints that have been filed in this action do the

plaintiffs actually assert class action claims pursuant to Federal Rule of Civil Procedure 23. This

seems to us to be the most striking thing about this case. If anything, we have even more reason

to be puzzled than was the district court because the bulk of the law upon which the plaintiffs

rely on this appeal is class action law, and a good part of oral argument was devoted to the

question of why this case was not brought as a class action. In sum, this case looks, walks, and

sounds like a class action, but yet is not one.

We hasten to add that, because this case has not been brought as a class action, class

action law is not dispositive as to our decision to affirm the district court. But we feel that some

discussion of the class action law of this Circuit is highly useful to the explanation of our

decision. For herein lies an explanation of the fundamental infirmity of the second amended

complaint. Amalgamating more than forty discrete incidents of misconduct by DOCS officials
7

does not make for a sustainable lawsuit. As the district court recognized, the claim of each

individual plaintiff, standing alone, may or may not have merit. But, taken together, the claims

do not establish the existence of a policy or practice existing throughout the DOCS system, or

within a single DOCS facility, such that manageable discovery or a reasonable trial could be held

in this action.

Our Circuit has expressed some trepidation regarding the efficacy of class action

litigation in providing relief to individual inmate plaintiffs who claim that prison conditions, or

the actions of prison officials, have violated their civil rights. In Blyden v. Mancusi, 186 F.3d

252 (2d Cir. 1999), we considered the results of a district court’s treatment of class action

litigation arising from injuries allegedly suffered by inmates during the infamous 1971

disturbances at the Attica prison. The allegations specifically claimed that punishments meted

out to inmates by prison officials and corrections officers once control of Attica had been

regained after an inmate takeover of the facility violated the Eighth Amendment. Although we

acknowledged the propriety of certifying a class of inmates when it was foreseeable that the

parties might reach a settlement agreement, id., at 269-70, we expressed skepticism that trials

conducted by the district court could have adequately assessed the damages suffered by each

member of the inmate class:

We cannot claim to have the same familiarity with the record as the

district court, but, even at a glance, the case bristles with individual

issues. For example, the determination of what acts constituted

“reprisals” involves consideration of a variety of conduct,

including forcing the inmates to strip and lie on the ground, making

them run through gauntlets, beatings during the gauntlets, singling

out and beating the leaders, and more random acts of violence

against individual prisoners. As to each, a trier [of fact] must

determine what happened and . . . its constitutional significance.

Id., at 271. Still, district courts in our Circuit continue to properly recognize the utility of the

class action device in suits challenging prison conditions when they believe that the requirements
8

of Rule 23 have been met. See, e.g., Ingles v. City of New York, 2003 WL 402565 (S.D.N.Y.

Feb. 20, 2003) (certifying inmate class alleging use of excessive force in facilities operated by the

New York City Department of Correction).

As already noted, however, the plaintiffs have not attempted to maintain a class action. If

they had done so, it is likely that we would consider the concerns expressed in Blyden to be

highly relevant. While that case “bristle[d] with individual issues,” the factual allegations pled in

the second amended complaint present nothing but individual issues. While Blyden arose out of

a single event – the Attica disturbances – the instant case arises from more than more than forty

discrete acts of alleged misconduct encompassing a range of defendants so broad that their only

substantial relation to one another is that they are all associated with DOCS. This case simply

cannot be sustained as an action seeking to adjudicate claims and defenses arising from acts of

misconduct which are only substantially related because they all are alleged to have occurred at

DOCS facilities. The sheer diffuseness of the plaintiffs’ allegations completely subverts their

federal law claims.

II. Eighth Amendment Claims.

 The Eighth Amendment prohibits “cruel and unusual punishments.” Again, it is possible

that any of the individual incidents alleged by the plaintiffs may amount to a violation of the

amendment in an action involving that incident alone. But proving this for any single incident

would be extremely impractical in the context of a trial adjudicating claims arising from more

than forty incidents. With respect to proving a violation of the Eighth Amendment by DOCS as

a whole, the plaintiffs have not shown that more than forty unrelated incidents occurring over ten

years at thirteen separate DOCS facilities can satisfy their burden of proving that “the conditions

of [their] confinement violate contemporary standards of decency.” Phelps v. Kapnolas, 308

F.3d 180, 185 (2d Cir. 2002) (per curiam).
9

Specifically, the necessary foundation of a finding that a prison system has violated the

Eighth Amendment is evidence of a concerted intent among prison officials, one expressed

through discernable regulations, policies or practices. It is by no means the case that federal

courts have recently become indifferent to claims charging systemic violations of the Eighth

Amendment by the concerted acts of prison officialdom. Nor is it the case that such claims are

guaranteed a favorable hearing. Compare Overton v. Bazzetta, __ U.S. __, __, 123 S. Ct. 2162,

2170 (2003) (denying Eighth Amendment challenge to Michigan state prison policy of restricting

visitation rights of prisoners who have violated regulations on substance abuse) with Hope v.

Pelzer, 536 U.S. 730 (2002) (declaring Alabama state prison policy of shackling prisoners to

hitching posts to be a violation of the Eighth Amendment). 

But the cases just cited stand apart from the instant case in that systemic abuses were at

issue, while this case involves a series of discrete incidents taking place within a single prison

system over a long period of time. It is impossible for us to be more precise here without

resorting to the vocabulary of metaphysics, but we hope we are not misunderstood when we

assert that an accumulation of incidents – we do not say “a mere accumulation” – does not

necessarily amount to a qualitative violation of the Eighth Amendment.

III. Conspiracy to Violate Civil Rights.

The plaintiffs’ claim under 42 U.S.C. § 1983, which is styled “Conspiracy to Violate

Civil Rights,” should actually be stated as a claim under Section 1985, which applies specifically

to conspiracies. In order to maintain an action under Section 1985, a plaintiff “must provide

some factual basis supporting a meeting of the minds, such that defendants entered into an

agreement, express or tacit, to achieve the unlawful end.” Romer v. Morgenthau, 119 F. Supp.

2d 346, 363 (S.D.N.Y. 2000) (citation omitted); see also Warburton v. Underwood, 2 F. Supp.2d

306, 319 (W.D.N.Y. 1998) (plaintiff stated claim of conspiracy to violate civil rights where
10

prison officials allegedly conspired to force him to participate in drug treatment program that

compromised his religious beliefs). The plaintiffs have not alleged, except in the most

conclusory fashion, that any such meeting of the minds occurred among any or all of the

defendants. Their conspiracy allegation must therefore fail. See Boddie v. Schnieder, 105 F.3d

857, 862 (2d Cir. 1997) (dismissal of “conclusory, vague or general allegations of conspiracy to

deprive a person of constitutional rights” is proper).

IV. Appointment of a Special Master.

The plaintiffs assert that, pursuant to the Prison Litigation Reform Act (“PLRA”), Pub. L.

No. 104-134, 110 Stat. 1321-70 (1996), codified at 18 U.S.C. § 3626, a special master should be

appointed to essentially administer DOCS in order to ensure its compliance with the Eighth

Amendment. If one looks only at this country’s history of prisoner rights litigation before the

passage of the PLRA, this request is understandable. In a comprehensive assessment of this

history, two political scientists have asserted that it amounts to “our nation’s most aggressive

campaign of judicial policy making.” Malcolm M. Feeley and Edward L. Rubin, Judicial Policy

Making and the Modern State: How the Courts Reformed America’s Prisons, at 263 (1998). A

primary means through which this campaign was effected was the appointment of special masters

to oversee prison conditions. This was largely because “[t]he power to appoint a compliance

coordinator, more familiarly known as a special master, is traditionally regarded as an inherent

power of an equity court and is explicitly authorized by the Federal Rules of Civil Procedure.” 

Id. at 75 (citing Fed. R. Civ. Pro. 53(b)).

Whether or not the actions of the federal courts throughout this history was consistent

with their proper role in our polity, and with the effective manifestation of the Eighth

Amendments ideals, is the subject of much argument. But there is no argument over whether or

not the PLRA represents a fundamental break with this history. The PLRA has substantially
11

limited the capacity of federal courts to appoint special masters to oversee prison conditions,

specifically in order to ensure compliance with the Eighth Amendment. This may or may not be

a good thing, but “Congress’s ability to take action of this sort demonstrates that the courts are

not nearly so imperial, or unstoppable, as their critics have claimed, even when grounding their

authority on the Constitution.” Id. at 383. 

We hope it goes with saying that we cannot disregard the requirements set forth in the

PLRA. That statute provides that a federal court may not grant any prospective relief at all – let

alone appoint a special master to administer a state prison system – unless the court finds that

“such relief is narrowly drawn, extends no further than necessary to correct the violation of the

Federal right, and is the least intrusive means necessary to correct the violation of the Federal

right.” 18 U.S.C. § 3626(a)(1)(A). The mere assertion that the appointment of a special master

is appropriate obviously does not meet these strictures.

V. Exhaustion of Administrative Remedies.

The PLRA further provides that a plaintiff may not bring a suit in federal court

challenging prison conditions “until such administrative remedies as are available are

exhausted.” 42 U.S.C. § 1997e(a). It is uncontested that none of the plaintiffs has alleged that he

has exhausted available administrative remedies.

There was formerly some question as whether the PLRA’s exhaustion requirement

reached suits involving individual instances of prison misconduct, as opposed to prison

conditions generally. In Porter v. Nussle, 534 U.S. 516, 532 (2002), however, the Supreme Court

established that “the PLRA’s exhaustion requirement applies to all inmate suits about prison life,

whether they involve general circumstances or particular episodes.” The plaintiffs attempt to

escape the holding of Porter by contending that it should not be retroactively applied.

“When [the Supreme] Court applies a rule of federal law to the parties before it, that rule
2

 We also hold that the district court did not abuse its discretion in declining to exercise

supplemental jurisdiction over the plaintiffs’ state law claims. See Ametex Fabrics, Inc. v. Just

In Materials, Inc., 140 F.3d 101, 105-06 (2d Cir. 1998).

12

is the controlling interpretation of federal law and must be given full retroactive effect in all

cases still open on direct review and as to all events, regardless of whether such events predate or

postdate [the] announcement of the rule.” Harper v. Virginia Dep’t. of Taxation, 509 U.S. 86, 97

(1993). Our Circuit has already applied Porter retroactively, see Lawrence v. Goord, 304 F.3d

198, 200 (2d Cir. 2002) (per curiam), and we see no reason to not do so here.

VI. Hope v. Pelzer.

Finally, the plaintiffs’ claim that Hope v. Pelzer, 536 U.S. 730 (2002), requires reversal

here is baseless. In Hope, as we have already noted, the Supreme Court found that Alabama’s

practice of shackling prisoners to hitching posts as a disciplinary measure violates the Eighth

Amendment. The case had nothing to do with the adequacy of pleadings in an action challenging

prison conditions.2

CONCLUSION

Each incident alleged by the plaintiffs involves grave allegations of rights violations

either perpetrated or tolerated by DOCS officials. In affirming the district court’s dismissal of

the second amended complaint, we take pains to assert that we are not establishing the triumph of

form over substance. Rather, our affirmance should stand for the proposition that form matters

in our system of adjudication. It matters because it is conducive to the coherent presentation of a

plaintiff’s claims, to the allowance of a fair opportunity to defendants to challenge those claims,

and to the provision of appropriate relief. In sum, a proper attention to form is a prerequisite to

the fair and efficient vindication of rights.

The judgment of the district court is AFFIRMED.