White v. Clark et al

Filing 37

DECISION AND ORDER: ORDERED that plaintiff's IFP Application (Dkt. No. 3 ) is GRANTED. ORDERED that the following defendants and claims are DISMISSED with prejudice for the reasons set forth above: (1) plaintiff's claim that defenda nts Bellamy, Fischer, Gregory, Rock, and White impeded his ability to file grievances; (2) plaintiff's denial-of access- to-the-courts claim based upon interference with his grievances; (3) plaintiff's claim that defendants failed to adequately investigate alleged misconduct; (4) plaintiff's claims that he was verbally harassed and threatened; and (5) defendants Gregory and White; and it is further ORDERED that the following defendants and claims are DISMISSED without pr ejudice for the reasons set forth above: (1) plaintiff's failure-to-protect claims against defendants LaBarr, King, Clintsman, Sergeant Hebert, Lt. Caron, John Doe - Z, Rock, Uhler, Lira, Otis, Smith and Rushford; (2) plaintiff's conspira cy claims; and (3) defendants LaBarr, Clintsman, Hebert, John Doe - Z, Lira, Otis, Bellamy, Fischer, Lamica, Oropallo, Dobbins, Gokey, Rakoce, Zerniak, Roy, John Doe # 1, and John Doe # 2; and it is further ORDERED that the Clerk shall issue sum monses and forward them, along with copies of the complaint, to the United States Marshal for service upon the remaining defendants -- namely Caron, Clark, Stockwell, Richards, Conto, LeClair, Sisto, Dishaw, Carr, King, Fournier, Smith, Rushford , Travers, Lashway, Rock, and Uhler; and it is further ORDERED that a response to the complaint be filed by defendants Caron, Clark, Stockwell, Richards, Conto, LeClair, Sisto, Dishaw, Carr, King, Fournier, Smith, Rushford, Travers, Lashway, Rock , and Uhler, or their counsel as provided for in the Federal Rules of Civil Procedure after service of process on the defendants; and it is further ORDERED that the Clerk strike from the docket report the amended complaints (Dkt. Nos. 12 , 22 , 26 ) for the reasons set forth above; and it is further ORDERED that plaintiff's motions to amend (Dkt. Nos. 7 , 23 , 28 ) are DENIED without prejudice; and it is further ORDERED that plaintiff's motions for preliminary injunctive relief (Dkt. Nos. 2 , 11 ) are DENIED; and it is further ORDERED that plaintiff's motion for default judgment (Dkt. No. 16 ) is DENIED; and it is further ORDERED that plaintiff's motion for various relief, including a hearing and recusal (Dkt. No. 27 ) is DENIED in its entirety. (ptm) (Copy served on plaintiff by regular mail)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

JOHN H. WHITE,
Plaintiff,
v.

9:12-CV-0986
(NAM/RFT)

JEFFREY CLARK, et al.,
Defendants.

APPEARANCES:
JOHN H. WHITE
08-A-3366
Plaintiff, pro se
Upstate Correctional Facility
P.O. Box 2001
Malone, NY 12953
NORMAN A. MORDUE, United States District Judge
DECISION AND ORDER
I.

INTRODUCTION
The Clerk has sent to the Court a pro se civil rights complaint filed by plaintiff John H.

White. Dkt. No. 1 ("Compl."). Plaintiff, who is currently incarcerated at Upstate Correctional
Facility, seeks leave to proceed with this action in forma pauperis. Dkt. No. 3 ("IFP
Application"). Plaintiff has also filed several amended complaints (Dkt. Nos. 12, 22, 26);
motions for preliminary injunctive relief (Dkt. Nos. 2, 11); motions to amend his complaint
(Dkt. Nos. 7, 23, 28); a motion for default judgment (Dkt. No. 16); and a request for a
teleconference hearing to address various issues (Dkt. No. 27).

II.

DISCUSSION
A.

In Forma Pauperis Application

Upon review of plaintiff's IFP Application (Dkt. No. 3), the Court finds that plaintiff has
demonstrated sufficient economic need and may commence this action without prepayment
of the filing fee.
B.

Initial Screening

Having found that plaintiff meets the financial criteria for commencing this action
in forma pauperis, and because plaintiff seeks relief from a governmental entity or an officer
or employee of a governmental entity, the Court must consider the sufficiency of the
allegations set forth in the complaint in light of 28 U.S.C. §§ 1915(e) and 1915A. Section
1915(e) directs that, when a plaintiff seeks to proceed in forma pauperis, "(2) . . . the court
shall dismiss the case at any time if the court determines that – . . . (B) the action . . . (i) is
frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks
monetary relief against a defendant who is immune from such relief." 28 U.S.C. §
1915(e)(2)(B).1 Thus, even if a plaintiff meets the financial criteria to commence an action in
forma pauperis, it is the court's responsibility to determine whether the plaintiff may properly
maintain the complaint that he filed in this District before the court may permit the plaintiff to
proceed with this action in forma pauperis. See id.
Likewise, under 28 U.S.C. § 1915A, a court must review any "complaint in a civil
action in which a prisoner seeks redress from a governmental entity or officer or employee of
a governmental entity" and must "identify cognizable claims or dismiss the complaint, or any

1
To determine whether an action is frivolous, a court must look to see whether the complaint "lacks an
arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989).

2

portion of the complaint, if the complaint . . . is frivolous, malicious, or fails to state a claim
upon which relief may be granted; or . . . seeks monetary relief from a defendant who is
immune from such relief." 28 U.S.C. § 1915A; see also Carr v. Dvorin, 171 F.3d 115, 116
(2d Cir. 1999) (per curiam) (Section 1915A applies to all actions brought by prisoners against
government officials even when plaintiff paid the filing fee); Abbas v. Dixon, 480 F.3d 636,
639 (2d Cir. 2007) (stating that both sections 1915 and 1915A are available to evaluate
prisoner pro se complaints).
In reviewing a pro se complaint, the court has a duty to show liberality toward pro se
litigants, see Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990) (per curiam), and should
exercise "extreme caution . . . in ordering sua sponte dismissal of a pro se complaint before
the adverse party has been served and both parties (but particularly the plaintiff) have had an
opportunity to respond." Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983) (internal
citations omitted). Therefore, a court should not dismiss a complaint if the plaintiff has stated
"enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Twombly, 550 U.S. at 556). Although the Court should construe the factual allegations in the
light most favorable to the plaintiff, "the tenet that a court must accept as true all of the
allegations contained in a complaint is inapplicable to legal conclusions." Id. "Threadbare
recitals of the elements of a cause of action, supported by mere conclusory statements, do
not suffice." Id. (citing Twombly, 550 U.S. at 555). "[W]here the well-pleaded facts do not
permit the court to infer more than the mere possibility of misconduct, the complaint has
3

alleged–but it has not 'show[n]'–'that the pleader is entitled to relief.'" Id. at 679 (quoting Fed.
Rule Civ. Proc. 8(a)(2)). Rule 8 "demands more than an unadorned, the-defendantunlawfully-harmed-me accusation." Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555).
Thus, a pleading that only "tenders naked assertions devoid of further factual enhancement"
will not suffice. Id. (internal quotation marks and alterations omitted). Allegations that "are
so vague as to fail to give the defendants adequate notice of the claims against them" are
subject to dismissal. Sheehy v. Brown, 335 Fed. App'x 102, 104 (2d Cir. 2009).
C.

Summary of Plaintiff's Complaint

Plaintiff includes in his complaint more than thirty defendants, all employees of the
New York State Department of Corrections and Community Supervision ("DOCCS"). See
generally Compl. Most of the defendants were, at the time period asserted in the complaint,
employed at Upstate Correctional Facility ("Upstate C.F."). The facts are set forth as alleged
in plaintiff's complaint.
On December 1, 2010, at the Upstate C.F. Isolation unit, plaintiff was threatened by
his cellmate. Compl. at 4. Throughout the 6 a.m. to 2 p.m. shift, plaintiff repeatedly asked to
be separated from his cellmate because he feared his life was in danger, but no one would
assist him, so he remained confined to his cell. Id. E. LaBarr was distributing mail, and
opened plaintiff's cell hatch, whereupon plaintiff "intentionally & knowingly obstructed" the
distribution of the mail by placing his left arm though the hatch. Id. Plaintiff refused to
remove his arm. Id. Plaintiff told LaBarr that he felt threatened by his cellmate, but LaBarr
said that neither plaintiff, nor his cellmate, would be removed from the cell "simply because of
a irreconcilable conflict which may lead to a little scuffle." Id. Sergeant Jerry Hebert and
correctional officers Clintsman and King arrived at plaintiff's cell. Id. Plaintiff was told by "all
4

officers" to remove his arm, but plaintiff "knowingly" refused to comply because Sergeant
Hebert told him that plaintiff and his cellmate would not be separated because of an
irreconcilable difference. Id. at 5. Plaintiff told Sergeant Hebert that, after a prior Tier III
hearing, Don Hoag warned plaintiff to avoid further physical altercations, or he would face
more severe penalties. Id. Hebert again ordered plaintiff to remove his arm from the hatch;
plaintiff refused. Id. Lt. Caron and multiple officers arrived at the cell. Id. Caron directed
correctional officer Lamica to record the incident with a hand-held camera. Id. Plaintiff
explained to Caron his fear of his cellmate and his desire to avoid a physical altercation, but
Caron disregarded this and again ordered plaintiff to remove his arm from the hatch. Id. at 56. Plaintiff refused and demanded to be separated from his cellmate because he feared for
his life. Id. at 6. Caron told plaintiff that unless plaintiff removed his arm, he had been
authorized to allow correctional officers to beat plaintiff's arm with batons. Id. Plaintiff finally
removed his arm. Id. Defendants Rock, Uhler, Lira, and Otis, failed "to remedy lack of
sufficient security intervention" inside double bunk cells. Id. at 22.
After the officers left the cell, plaintiff told his cellmate that he did not wish to fight, but
that he would "get removed instantly by alleging a suicide attempt." Compl. at 7. After
plaintiff did so, correctional officer King contacted Sergeant Hebert. Id. Plaintiff was
escorted to the medical infirmary by multiple officers, hand-cuffed and chained at the waist,
and monitored with a hand-held camera until he reached the infirmary. Id. at 7-8. Plaintiff
was stripped, examined, and given a suicide smock. Id. at 8. Then the door was locked and
the hand-held camera was turned off. Id. Later that day, Caron arrived and told plaintiff that
because plaintiff gave his officers a hard time, he "would be getting [his] ass whipped
tonight." Id.
5

About thirty minutes later, correctional officers Clark, Stockwell, Richards, Sisto,
LeClair, and Conto, entered plaintiff's room and beat him. Compl. at 8. R.N. Smith and R.N.
Rushford watched the assault, which lasted over fifteen minutes. Id. After the assault, the
correctional officers threatened plaintiff and told him to stop writing up officers and giving
them a hard time. Id. at 9. After the officers left the room, plaintiff requested medical
attention, which was denied. Id. Plaintiff was told to stop complaining or he would get
another "ass whopping." Id. Shortly thereafter, plaintiff was beaten by correctional officers
Fournier, Dishaw, Carr, and King. at the direction of Clark, who told them not to hit plaintiff's
face. Id. at 10. The correctional officers who assaulted plaintiff conspired with all of the
administrative officials to violate his constitutional rights, and to violate state laws and
regulations. Id. at 11-12.
Plaintiff received no medical attention until after the shift had changed, whereupon he
received two pain pills. Compl. at 10. The following morning, plaintiff was interviewed by
OMH Supervisor Kemp, who concluded that plaintiff's suicide threat was merely an attempt
to avoid having a cell fight. Id. Kemp told plaintiff that his cellmate had been relocated and
plaintiff should return to his cell.2 Id. Plaintiff was escorted back to his cell by correctional
officers Gokey and Dobbins, both of whom noticed plaintiff's injuries but failed to assist
plaintiff or "report suspicions of battery gang assault." Id. at 11. Gokey and Dobbins told
plaintiff that R.N. Travers wanted to see plaintiff when he returned to his cell, however
Travers only looked at plaintiff and said "I just wanted to make sure he's alive." Id.

2

Kemp is not named as a defendant, and the Court will not consider him to be a defendant.
Nonetheless, even if plaintiff intended to name Kemp as a defendant, he fails to state any sort of claim against
Kemp. Kemp's conclusion, that plaintiff's suicide threat was merely a ploy to be separated from his cellmate is
confirmed by plaintiff's own allegation that he threatened suicide to be separated from his cellmate. Moreover,
Kemp sent him back to his cell after the cellmate had been transferred elsewhere.

6

R.N. Smith, R.N. Rushford, R.N. Travers, and Amber Lashway denied plaintiff adequate
medical care for the injuries suffered from the aforementioned assaults in deliberate
indifference to his serious medical needs. Id. at 13-14. Gokey and Dobbins failed to notify
area sergeant about plaintiff's gang assault. Id. at 22. David Rock and Donald Uhler were
deliberately indifferent to plaintiff's serious medical needs because they "failed to respond or
initiate an investigation or process complaints or letters forwarded" to them. Id.
Plaintiff attempted to use the prison grievance system to solve his problems, but
grievance officials, Superintendent Rock, and DOCCS Commissioner Fischer have refused
to acknowledge receipt of his grievances. Compl. at 16. Plaintiff wrote letters about the
misconduct to Superintendent Rock on December 2 and 4, 2010. Id. at 15. Plaintiff also
notified staff at the DOCCS' Inspector General's Office and Sergeant Oropallo of the
misconduct. Id. at 15-16. Additionally, plaintiff's grievances and letters of complaint were
destroyed by Gregory, White, and David Rock, which also violated plaintiff's right of access
to the courts. Id. at 20.
Construed liberally, plaintiff asserts the following claims in violation of his rights under
the First, Eighth, and Fourteenth Amendments: (1) defendants LaBarr, King, Clintsman,
Sergeant Hebert, Lt. Caron, and John Doe - Z, failed to protect plaintiff by not separating
plaintiff and his cellmate when plaintiff told them that he feared for his life, and defendants
Rock, Uhler, Lira, and Otis failed to correct this wrongdoing (Compl. at 17-18, 22); (2)
defendants Smith and Rushford failed to intervene to protect plaintiff from assault; (id. at 20);
(3) at the alleged direction of Lt. Caron, defendants Clark, Stockwell, Richards, Conto,
LeClair, Sisto, Dishaw, Carr, King, and Fournier, subjected plaintiff to excessive force (id. at
8, 10, 19-20); (4) defendants Smith, Rushford, Travers, Lashway, Rock, and Uhler denied
7

plaintiff medical care in deliberate indifference to his serious medical needs (id. at 20-21); (5)
plaintiff's ability to file grievances was impeded or his grievances were destroyed, which in
turn denied him access to the courts, and his grievances were not adequately investigated
(id. at 16); and (6) defendants Caron and Travers harassed and verbally abused plaintiff,
causing plaintiff emotional distress (id. at 18, 21). Plaintiff seeks monetary damages, as well
as injunctive and declaratory relief. For a complete statement of plaintiff's claims, refer to the
complaint.3
D.

Analysis of Plaintiff's Complaint
1. Eighth Amendment Claims

The Eighth Amendment prohibits cruel and unusual punishment which encompasses
punishments that involve the "unnecessary and wanton infliction of pain" and are
incompatible with "the evolving standards of decency that mark the progress of a maturing
society." Estelle v. Gamble, 429 U.S. 97, 102 (1976) (citations and quotations omitted).
While the Eighth Amendment does not mandate comfortable prisons, neither does it tolerate
inhumane treatment of those in confinement; thus the conditions of an inmate's confinement
are subject to Eighth Amendment scrutiny. Farmer v. Brennan, 511 U.S. 825, 832 (1994)
(citing Rhodes v. Chapman, 452 U.S. 337, 349 (1981)).
A claim alleging that prison conditions violate the Eighth Amendment must satisfy both
an objective and subjective requirement - the conditions must be "sufficiently serious" from
an objective point of view, and the plaintiff must demonstrate that prison officials acted

3

The Court notes that on pages 23-25 of the complaint, plaintiff includes a series of allegations of
wrongdoing against various Upstate C.F. staff who are not included as defendants in his complaint. Compl. at
23-25. Indeed, plaintiff clearly states that the allegations are intended for an "Anticipated Amended Complaint
following the filing of the instant complaint." Id. at 25. Accordingly, the Court will not consider these allegations
to be part of this complaint.

8

subjectively with "deliberate indifference." See Leach v. Dufrain, 103 F. Supp. 2d 542, 546
(N.D.N.Y. 2000) (Kahn, J.) (quoting Wilson v. Seiter, 501 U.S. 294, 297-98 (1991)); Waldo v.
Goord, No. 97-CV-1385 (LEK/DRH), 1998 WL 713809, at *2 (N.D.N.Y. Oct. 1, 1998).
Deliberate indifference exists if an official "knows of and disregards an excessive risk to
inmate health or safety; the official must both be aware of facts from which the inference
could be drawn that a substantial risk of serious harm exists, and he must also draw the
inference." Farmer, 511 U.S. at 837.
Plaintiff alleges multiple violations of his Eighth Amendment rights.
a. Failure-to-Protect Claims
Under the Eighth Amendment prison officials are required to take reasonable
measures to guarantee the safety of inmates and to protect them from known harm. Farmer,
511 U.S. at 832-33. In Farmer, the Supreme Court set out the two-pronged test that
determines when a failure to protect a prison inmate from assault by other inmates rises to
the level of a constitutional violation. First, the prisoner must have been "incarcerated under
conditions posing a substantial risk of serious harm." Id. at 834. Second, the prison official
must have shown "deliberate indifference" to the prisoner's safety. Id. Deliberate
indifference exists when "the official knows of and disregards an excessive risk to inmate
health or safety; the official must both be aware of facts from which the inference could be
drawn that a substantial risk of serious harm exists, and he must also draw the inference."
Id. at 837; Hines v. Lacy, 189 F.3d 460 (2d Cir. 1999).
Plaintiff alleges that defendants LaBarr, King, Clintsman, Sergeant Hebert, Lt. Caron,
and John Doe - Z, failed to protect him from danger because, although plaintiff repeatedly
told them that he was afraid that he would get into a physical altercation with his cellmate,
9

they refused to separate him from his cellmate. These facts, even if true, do not support a
failure-to-protect claim under the Eighth Amendment. For one thing, 42 U.S.C. § 1997e(e)
provides that "[n]o Federal civil action may be brought by a prisoner confined in a jail, prison,
or other correctional facility, for mental or emotional injury suffered while in custody without a
prior showing of physical injury." The complaint itself fails to allege that plaintiff suffered any
injury as a result of defendants' failure to separate plaintiff from his cellmate. Plaintiff's claim
is therefore barred under 42 U.S.C. § 1997e(e).
Here, plaintiff does not plead facts to meet either the objective or subjective
components for stating a failure-to-protect claim. Apart from his own assertion that he feared
his cellmate, plaintiff has offered no specific information to establish that he was incarcerated
under conditions posing a substantial risk of harm. See Hayes v. New York City Dep't of
Corr., 84 F.3d 614, 620 (2d Cir. 1996) (In order to demonstrate such deliberate indifference,
the plaintiff must allege that "he [wa]s incarcerated under conditions posing a substantial risk
of serious harm" and that the prison official had "knowledge that [the] inmate face[d] a
substantial risk of serious harm and ... disregard[ed] that risk by failing to take reasonable
measures to abate the harm."). Nor does he allege any facts to suggest that the defendants
were deliberately indifferent to his safety. Se Morales v. New York State Dep't of Corr., 842
F.2d 27, 30 (2d Cir. 1988) (In addition, a failure-to-protect claim requires a showing that
prison officials acted with "deliberate indifference" to the inmate's safety.). Indeed, plaintiff
does not allege even a single incident wherein he was assaulted, or in any way injured by his
cellmate. In fact, it appears that plaintiff was separated from his cellmate before any physical
altercation occurred. Under these circumstances, plaintiff has failed to allege objective facts
demonstrating the existence of a plausible claim of unlawful failure-to-protect on the part of
10

one or more of these defendants, in violation of the Eighth Amendment. Accordingly,
plaintiff's failure-to-protect claim against defendants LaBarr, King, Clintsman, Sergeant
Hebert, Lt. Caron, and John Doe - Z is dismissed without prejudice. See, e.g., Dawes v.
Walker, 239 F.3d 489, 494 (2d Cir. 2001) (affirming dismissal of failure-to-protect claim
where plaintiff did not allege that he was assaulted or even threatened by other inmates);
Bolton v. Goord, 992 F. Supp. 604, 627 (S.D.N.Y. 1998) ("Plaintiffs' testimony that they lived
in fear of assault from their cellmates is not an objectively serious enough injury to support a
claim for damages.").
Additionally, to the extent that plaintiff alleges that defendants Rock, Uhler, Lira, and
Otis, failed "to remedy lack of sufficient security intervention" inside double bunk cells, he
fails to state a claim. Since the Court has already determined that plaintiff did not allege a
failure-to-protect claim with respect to staff's failure to remove him from his double-bunk cell,
there is no unconstitutional conduct for which Rock, Uhler, Lira, and Otis, as supervisors, can
be held responsible. See Toole v. Connell, No. 9:04-CV-0724, Report-Recommendation,
2008 WL 4186334, at *7 (N.D.N.Y. Sep. 10, 2008) (Peebles, M.J.), adopted, 2008 WL
4186334, at *1 (Kahn, J.) (supervisory defendant cannot be liable for failing to investigate or
correct conduct that has already been found to be not actionable under section 1983); see
also Linares v. Mahunik, No. 05 Civ. 625 (GLS/RFT), 2006 WL 2595200, at *11 (N.D.N.Y.
Sept. 11, 2006) (holding plaintiff could not "sustain a supervisory liability claim as there was
no wrong for [supervisor-defendant] to remedy since there [was] no constitutional violation").
Liberally construing plaintiff's complaint, he also alleges that defendants Smith and
Rushford, who are nurses, were at the scene when he was assaulted by defendants Clark,
Stockwell, Richards, Sisto, LeClair, and Conto, but failed to intervene. Compl. at 8. "Law
11

enforcement officials can be held liable under § 1983 for not intervening in a situation where
excessive force is being used by another officer." Jean-Laurent v. Wilkinson, 540 F. Supp.
2d 501, 512 (S.D.N.Y. 2008) (citing O’Neill v. Krzeminski, 839 F.2d 9, 11-12 (2d Cir. 1988)).
However, defendants Smith and Rushford are identified as nurses, and there is nothing to
suggest that they have the authority to intervene while correctional officers are using force on
an inmate. See Lewis v. Johnson, 9:08-CV-0482 (ATB), 2010 WL 3785771, at *8 (N.D.N.Y.
Aug. 5, 2010) (Even if present, a nurse lacks the authority to intervene while correction
officers use force on an inmate) (citing Rendely v. Town of Huntington, No. 2:03-CV-3805,
2006 WL 5217083, at *6 (E.D.N.Y. Aug. 30, 2006) (because defendants were civilian
government employees, and thus not law enforcement officials, they had no authority or duty
to prevent the police officers from taking plaintiff into custody); Phoenix v. Reddish, 175 F.
Supp. 2d 215, 220 (D.Conn. 2001) (there is no Supreme Court or Second Circuit authority
that imposes an affirmative duty on a non-police state actor to intervene to prevent a police
officer from conducting an unlawful search and seizure).
b. Excessive Force Claims
A plaintiff's constitutional right to be free from cruel and unusual punishment is
violated by an "unnecessary and wanton infliction of pain." Whitley v. Albers, 475 U.S. 312,
319 (1986) (citations and quotations omitted); Griffin v. Crippen, 193 F.3d 89, 91 (2d Cir.
1999). The relevant inquiry in deciding excessive force claims against prison officials is
whether the force applied was done so in a "good-faith effort to maintain or restore discipline,
or maliciously and sadistically to cause harm." Whitley, 475 U.S. at 320-2. Cruel and
unusual punishment claims must meet both objective and subjective requirements. Leach,
103 F. Supp. 2d at 546 (citation omitted); Waldo v. Goord, No. 6:97-CV-1385 (LEK/DRH),
12

1998 WL 713809, at *2 (N.D.N.Y. Oct. 1, 1998).
The objective prong of the governing test is analyzed by looking at "contemporary
standards of decency" and the circumstances surrounding the incident. Leach, 103 F. Supp.
2d at 546; Waldo, 1998 WL 713809, at *2. The subjective element requires a plaintiff show
that the defendant acted with a sufficiently culpable state of mind. Id. The principal inquiry
surrounds whether "force was applied in a good-faith effort to maintain discipline or
maliciously and sadistically for the very purpose of causing harm." Hudson v. McMillian, 503
U.S. 1, 6-7 (1992); Whitley, 475 U.S. at 321 (quoting Johnson v. Glick, 481 F.2d 1028, 1033
(2d Cir. 1973)).
Plaintiff alleges that defendants Caron, Clark, Stockwell, Richards, Conto, LeClair,
Sisto, Dishaw, Carr, King, and Fournier subjected him to excessive force and/or directed the
use of excessive force against plaintiff. At this early stage of the proceeding, plaintiff has
alleged enough to require a response from defendants Caron, Clark, Stockwell, Richards,
Conto, LeClair, Sisto, Dishaw, Carr, King, and Fournier to plaintiff's excessive force claim.
c. Medical Indifference Claims
To establish a claim for violation of the Eighth Amendment due to inadequate medical
care, "a prisoner must allege 'deliberate indifference to [his] serious medical needs.'"
Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998) (quoting Estelle v. Gamble, 429 U.S.
97, 104 (1976)).
Plaintiff alleges that defendants Smith, Rushford, Travers, and Lashway denied him
adequate medical care in deliberate indifference to the injuries he suffered after he was
assaulted on two occasions by correctional officers. Plaintiff also alleges that David Rock
and Donald Uhler were deliberately indifferent to plaintiff's serious medical needs because
13

they "failed to respond or initiate an investigation or process complaints or letters forwarded"
to them. At this early juncture, plaintiff has alleged enough to require a response from
defendants Smith, Rushford, Travers, Lashway, Rock, and Uhler, to his medical indifference
claims.
2. Failure to Address Grievances or to Conduct an
Investigation and Denial of Access to the Courts
There is no constitutional right of access to the established inmate grievance program.
Davis v. Buffardi, No. 9:01-CV-0285 (PAM/GJD), 2005 WL 1174088, at *3 (N.D.N.Y. May 4,
2005) ("[p]articipation in an inmate grievance process is not a constitutionally protected
right"); Shell v. Brzezniak, 365 F. Supp. 2d 362, 369-70 (W.D.N.Y. 2005) ("[i]nmate grievance
programs created by state law are not required by the Constitution and consequently
allegations that prison officials violated those procedures does not give rise to a cognizable §
1983 claim"); Cancel v. Goord, No. 00. CIV. 2042, 2001 WL 303713, at *3 (S.D.N.Y. Mar. 29,
2001) ("inmate grievance procedures are not required by the Constitution and therefore a
violation of such procedures does not give rise to a claim under § 1983"). Thus, to the
extent that plaintiff alleges that defendants Bellamy, Fischer, Gregory, Rock, and White
impeded or destroyed his grievances, he fails to state a claim pursuant to Section 1983.

Moreover, while the Constitution does mandate that inmates be afforded access to the
courts, see Bounds v. Smith, 430 U.S. 817, 823 (1977), the alleged interference with
plaintiff's ability to file grievances does not amount to interference with the right of access to
the courts, since under the Prison Litigation Reform Act of 1996 ("PLRA"), Pub.L. No.
104-134, 110 Stat. 1321 (1996), a plaintiff whose access to the grievance process has been
hindered or foiled by actions of prison officials are excused from the PLRA's exhaustion
14

requirement and permitted to file suit without having completed that process. See Hemphill
v. New York, 380 F.3d 680, 686-91 (2d Cir. 2004). Plaintiff fails to state a denial of access to
the courts claim.
Broadly construed, plaintiff's complaint may also allege that various defendants
violated his constitutional rights by failing to conduct a thorough investigation of the incidents
of wrongdoing against plaintiff. However, prisoners do not have a due process right to a
thorough investigation of grievances. Torres v. Mazzuca, 246 F. Supp. 2d 334, 341-42
(S.D.N.Y. 2003); see also DeShaney v. Winnebego Soc. Servs., 489 U.S. 189, 196 (1989)
(The Due Process Clause confers no right to governmental aid, even where that aid may be
necessary to secure life, liberty, or property interests of which the government itself may not
deprive the individual); Pine v. Seally, No. 9:09-CV-1198, 2011 WL 856426, at *9 (N.D.N.Y.
Feb. 4, 2011) ("the law is . . . clear that inmates do not enjoy a constitutional right to an
investigation of any kind by government officials") (citing Bernstein v. New York, 591 F.
Supp. 2d 448, 460 (S.D.N.Y. 2008)). Plaintiff fails to state a claim in this regard.
In light of the foregoing, plaintiff's claims that his ability to file grievances was
impeded, he was denied access to the courts, or he was denied an adequate investigation of
his grievances and complaints are dismissed in their entirety. Moreover, since these are the
only claims against defendants Gregory and White, they are dismissed as defendants to this
action.
3. Verbal Harassment or Threats
Plaintiff alleges that the defendants Caron and Travers verbally harassed or
threatened him. Compl. at 6,11. Verbal harassment and name calling, absent physical
injury, are not constitutional violations cognizable under § 1983. See Purcell v. Coughlin,
15

790 F.2d 263, 265 (2d Cir. 1986) (per curiam); Aziz Zarif Shabazz v. Pico, 994 F. Supp. 460,
474 (S.D.N.Y. 1998) ("verbal harassment or profanity alone, unaccompanied by any injury no
matter how inappropriate, unprofessional, or reprehensible it might seem, does not constitute
the violation of any federally protected right and therefore is not actionable under 42 U.S.C. §
1983") (quotation omitted); see also Rivera v. Goord, 119 F. Supp. 2d 327, 342 (S.D.N.Y.
2000) (collecting cases). Plaintiff has failed to state a claim against defendants Travers and
Caron in this regard.
4. Defendant Lamica
Plaintiff alleges that correctional officer Lamica operated the hand-held video-camera
and filmed the incident at plaintiff's cell on December 10, 2010, when plaintiff refused to
remove his arm from his cell hatch. Compl. at 4. Even if accepted as true, this allegation
fails to state a claim of constitutional dimension. Defendant Lamica is therefore dismissed.
5. Defendant Oropallo
Plaintiff alleges that he notified Sergeant Oropallo about staff misconduct. Compl. at
15-16. Even if accepted as true, this allegation fails to state a claim of constitutional
dimension. Defendant Oropallo is therefore dismissed.
6. Defendants Gokey and Dobbins
Plaintiff alleges that defendants Gokey and Dobbins escorted him from the infirmary
to his cell the day after he was assaulted, and that both of them noticed plaintiff's injuries but
failed to assist him or to report their suspicion that plaintiff had been assaulted. Id. at 11.
Plaintiff has failed to allege wrongdoing against these defendants. In fact, plaintiff himself
states that Gokey and Dobbins told plaintiff that nurse Travers wanted to see plaintiff when
he returned to his cell, therefore there would be no need for them to call for medical
16

assistance.
7. Personal Involvement
To state a viable claim under Section 1983, a plaintiff must allege that the defendant,
while acting under color of state law, deprived him of a right, privilege or immunity secured by
the Constitution or by the laws of the United States. See 42 U.S.C. § 1983. Personal
involvement of defendants in alleged constitutional deprivations is a prerequisite to an award
of damages under section 1983. Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (citing
Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir. 1991) and McKinnon v. Patterson,
568 F.2d 930, 934 (2d Cir. 1977), cert. denied, 434 U.S. 1087 (1978)). In order to prevail on
a section 1983 cause of action against an individual, a plaintiff must show some tangible
connection between the constitutional violation alleged and that particular defendant. See
Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986). Any complaint that fails to allege
personal involvement is "fatally defective on its face." Alfaro Motors, Inc. v. Ward, 814 F.2d
883, 886 (2d Cir.1987) (internal quotations and citations omitted).
A supervisor cannot be liable for damages under Section 1983 solely by virtue of
being a supervisor; there is no respondeat superior liability under section 1983. Richardson
v. Goord, 347 F.3d 431, 435 (2d Cir. 2003); Wright, 21 F.3d at 501. Vague and conclusory
allegations that a supervisor has failed to train or properly monitor the actions of subordinate
employees will not suffice to establish the requisite personal involvement and support a
finding of liability. Pettus v. Morgenthau, 554 F.3d 293, 300 (2d Cir. 2009) ("To the extent
that [a] complaint attempts to assert a failure-to-supervise claim . . . [that claim is insufficient
where] it lacks any hint that [the supervisor] acted with deliberate indifference to the
possibility that his subordinates would violate [plaintiff’s] constitutional rights."). Culpability on
17

the part of a supervisory official for a civil rights violation can, however, be established in one
of several ways, including when that individual (1) has directly participated in the challenged
conduct; (2) after learning of the violation through a report or appeal, has failed to remedy the
wrong; (3) created or allowed to continue a policy or custom under which unconstitutional
practices occurred; (4) was grossly negligent in managing the subordinates who caused the
unlawful event; or (5) failed to act on information indicating that unconstitutional acts were
occurring. Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995); Wright, 21 F.3d at 501;
Williams v. Smith, 781 F.2d 319, 323-324 (2d Cir. 1986).
The complaint mentions defendants Richard Rakoce and T. Zerniak in the caption of
the complaint and in the section of the complaint wherein he lists and identifies the
defendants, but the body of the complaint alleges no act or omission by Rakoce or Zeniak.4
Where a person is listed as a defendant, but the body of the complaint fails to indicate what
the defendant did to the plaintiff, dismissal is appropriate. Gonzalez v. City of N.Y., No. 97
CIV. 2246, 1998 WL 382055, at *2 (S.D.N.Y. Jul. 9, 1998); see also Crown v. Wagenstein,
No. 96 CIV. 3895, 1998 WL 118169, at *1 (S.D.N.Y. Mar. 16, 1998) (mere inclusion of
warden's name in complaint insufficient to allege personal involvement); Taylor v. City of New
York, 953 F. Supp. 95, 99 (S.D.N.Y.1997) (same).
Additionally, the complaint does not allege the personal involvement of defendant Roy,
Fischer, John Doe #1, John Doe # 2, or Bellany in any wrongdoing. Construing the complaint
liberally, plaintiff's theory of liability against these defendants appears to be grounded simply
upon the fact that they are supervisors, claiming in wholly conclusory fashion that they

4
Zerniak is included in plaintiff's "Prayer for Relief." Compl. at 25. This does not overcome the stated
deficiency, namely that the complaint alleges no wrongdoing by Zerniak.

18

exhibited "deliberate indifference" to the staff misconduct alleged in plaintiff's complaint.
Compl. at 22. However, as already mentioned above, Section 1983 damages will not be
imposed based upon a respondeat superior theory of liability. See Gill v. Mooney, 824 F.2d
192, 196 (2d Cir. 1987) ("Dismissal of a § 1983 claim is proper where, as here, the plaintiff
does no more that allege that [defendant] was in charge of the prison.") (internal quotations
omitted); see also Castillo v. Commissioner New York State DOCS, No. 06-CV-858A, 2008
WL 4501881, at *2 (W.D.N.Y. Sept. 30, 2008) (dismissing claims for failure to allege personal
involvement, since "[p]laintiff's theory of liability appears to be grounded simply upon the fact
that the defendants were in charge of the prison"); Ayers v. Coughlin, 780 F.2d 205, 210 (2d
Cir. 1985) (per curiam ) ("[P]laintiff's claim for monetary damages against [prison officials]
requires a showing of more than the linkage in the prison chain of command."). Thus,
plaintiff has failed to allege the personal involvement of defendants Roy, Fischer, John Doe
#1, or John Doe # 2 in any wrongdoing.5
8. Conspiracy
A conspiracy claim under 42 U.S.C. 1983 must allege that: (1) an agreement existed
between two or more state actors to act in concert to inflict an unconstitutional injury on
plaintiff and (2) an overt act was committed in furtherance of that goal. Ciambriello v. County
of Nassau, 292 F.3d 307, 324-25 (2d Cir. 2002). Vague and conclusory allegations that
defendants have engaged in a conspiracy must be dismissed. Ciambriello, 292 F.3d at 325;
see also Sommer v. Dixon, 709 F.2d 173, 175 (2d Cir.1983) ("A complaint containing only
conclusory, vague, or general allegations of conspiracy to deprive a person of constitutional

5
Plaintiff seems to allege that Bellamy impeded his ability to file grievances, or did not fully investigate
them. These claims have been dismissed. See Part II.D.2, supra.

19

rights cannot withstand a motion to dismiss."); Brown v. City of Oneonta, 106 F.3d 1125,
1133 (2d Cir. 1997) (complaints containing only conclusory, vague or general allegations of
a conspiracy to deprive a person of constitutional rights do not state a claim for relief).
"[A]lthough a plaintiff does not need to provide detailed factual allegations, the allegations in
the complaint must be 'enough to raise a right to relief above the speculative level.'" Flores v.
Levy, No. 07-CV-3753, 2008 WL 4394681, at *9 (E.D.N.Y. Sep. 23, 2008) (quoting Twombly,
550 U.S. at 554).
Here, plaintiff does not assert any facts giving rise to a conspiracy, but instead makes
only a vague statement that the defendants who allegedly assaulted him conspired with all of
the administrative officials to violate his constitutional rights, and to violate state laws and
regulations. Id. at 11-12. Plaintiff has not alleged that any meeting of the minds occurred
between any of the defendants and the complaint contains no allegations whatsoever to
support a "plausible" conspiracy claim involving any of the defendants.
9. Conclusion
The following claims and defendants are dismissed with prejudice: (1) plaintiff's claim
that defendants Bellamy, Fischer, Gregory, Rock, and White impeded his ability to file
grievances; (2) plaintiff's denial-of-access-to-the-courts claim based upon interference with
his grievances; (3) plaintiff's claim that defendants failed to adequately investigate alleged
misconduct; (4) plaintiff's claims that he was verbally harassed and threatened; and (5)
defendants Gregory and White.
The following claims and defendants are dismissed without prejudice: (1) plaintiff's
failure-to-protect claims against defendants LaBarr, King, Clintsman, Sergeant Hebert, Lt.
Caron, John Doe - Z, Rock, Uhler, Lira, and Otis, Smith and Rushford; (2) plaintiff's
20

conspiracy claims; and (3) defendants LaBarr, Clintsman, Hebert, John Doe - Z, Lira, Otis,
Bellamy, Fischer, Lamica, Oropallo, Dobbins, Gokey, Rakoce, Zerniak, Roy, John Doe # 1,
and John Doe # 2.
Mindful of the requirement to liberally construe pro se pleadings, see Sealed Plaintiff
v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008), the Court finds that the complaint
alleges enough to warrant a responsive pleading to the following claims by the designated
defendants: (1) plaintiff's Eighth Amendment excessive force claims against defendants
Caron, Clark, Stockwell, Richards, Conto, LeClair, Sisto, Dishaw, Carr, King, and Fournier
and (2) plaintiff's medical indifference claims against defendants Smith, Rushford, Travers,
Lashway, Rock, and Uhler. However, this is not a ruling on the merits and the court draws
no conclusions about the truth of plaintiff's allegations or about the strength of evidence he
might offer to corroborate them.
E.

Amended Complaints and Motions to Amend

After plaintiff submitted his complaint, he submitted several amended complaints (Dkt.
Nos. 12, 22, 26) as well as several motions to amend (Dkt. Nos. 7, 23, 28). The amended
complaints and the motions to amend suffer from the same infirmity discussed below.
An amended complaint is intended to replace and supercede in its entirety the
previous complaint. Once accepted for filing, the amended complaint becomes the operative
pleading, and the original complaint is no longer considered. See Dluhos v. Floating &
Abandoned Vessel, 162 F.3d 63, 68 (2d Cir. 1998) ("[I]t is well established that an amended
complaint ordinarily supersedes the original, and renders it of no legal effect.") (citing Shields
v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir. 1994)). This requirement is buttressed
by the Local Rules of Practice of this District ("Local Rules"), which provide, in pertinent part,
21

that amended pleadings must be complete pleadings which will supersede the original
pleading in all respects. See N.D.N.Y.L.R. 7.1(a)(4). The Court's rules further state that a
"party shall not incorporate any portion of its prior pleading into the proposed amended
pleading by reference." Id. One of the purposes of the requirement that an amended
complaint be itself a complete pleading, is to ensure that all of the allegations asserted
against the defendants are contained in a single document, thereby reducing the likelihood
that a party will overlook one or more allegations against him. This requirement eliminates
the confusing nature of "piecemeal" amended complaints. See Chapdelaine v. Keller,
9:95-CV-1126 (HGM/GS), 1999 WL 34998130, at *1 (N.D.N.Y. Sep. 28, 1999). In other
words, an amended complaint must include all of the allegations against each of the
defendants against whom the case is going forward so that the amended complaint may
stand alone as the sole complaint in the action.
Here, none of plaintiff's amended complaints6 or his proposed amended pleadings
submitted with his motions to amend are complete pleadings. Indeed, it does not appear that
plaintiff intends to replace his original complaint with any of the amended complaints. As
explained above, plaintiff may not submit an amended complaint and at the same time
proceed with the original complaint. Based upon the foregoing, the Clerk is directed to strike
plaintiff's amended complaints (Dkt. Nos. 12, 22, 26) from the docket report because they are
not complete pleadings. Plaintiff is advised that the amended complaints will not be
considered by the Court. Additionally, because plaintiff has not included a complete
proposed amended pleading with any of his motions to amend, those motions to amend (Dkt.
6

While some of the amended complaints appear at first glance to be plaintiff's attempt to commence a
new action against new defendants, the Court did not construe them as such because plaintiff clearly identified
the submissions as amended complaints to be filed in this action. See Dkt. No. 12 at 1, 2, 14; Dkt. No. 22 at 1;
Dkt. No. 21-1 at 1; and Dkt. No. 26 at 1.

22

Nos. 7, 23, 28) are denied without prejudice.
F.

Motions for Preliminary Injunctive Relief

A preliminary injunction is an "extraordinary remedy that should not be granted as a
routine matter." Patton v. Dole, 806 F.2d 24, 28 (2d Cir. 1986). "The purpose of issuing a
preliminary injunction is to 'preserve the status quo and prevent irreparable harm until the
court has an opportunity to rule on the . . . merits.'" Candelaria v. Baker, No. 00-CV-0912E,
2006 WL 618576, at *3 (W.D.N.Y. Mar. 10, 2006) (quoting Devose v. Herrington, 42 F.3d
470, 471 (8th Cir. 1994) (per curiam)). In most cases, to warrant the issuance of a
preliminary injunction, a movant must show (a) irreparable harm and (b) either (1) a likelihood
of success on the merits of the claim or (2) sufficiently serious questions going to the merits,
and a balance of hardships tipping decidedly in favor of the moving party. No Spray
Coalition, Inc. v. City of New York, 252 F.3d 148, 150 (2d Cir. 2001) (per curiam); Covino v.
Patrissi, 967 F.2d 73, 77 (2d Cir. 1992). When, however, a movant seeks relief which will
alter, rather than maintain, the status quo, or which will provide him with substantially all the
relief he seeks, the injunction sought is properly characterized as mandatory rather than
prohibitory and the movant must make a "clear" or "substantial" showing of the likelihood of
success as well as irreparable harm if the court does not grant the injunctive relief. See Jolly
v. Coughlin, 76 F.3d 468, 473 (2d Cir. 1996). The same standards used to review a request
for a preliminary injunction govern consideration of an application for a temporary restraining
order. Local 1814, Int'l Longshoremen's Ass'n, AFL-CIO v. New York Shipping Ass'n, Inc.,
965 F.2d 1224, 1228 (2d Cir. 1992); Perri v. Bloomberg, No. 06-CV-403, 2008 WL 2944642,
at * 2 (E.D.N.Y. Jul. 31, 2008). Preliminary injunctive relief "'should not be granted unless the
movant, by a clear showing, carries the burden of persuasion.'" Moore v. Consol. Edison Co.
23

of N.Y., Inc., 409 F.3d 506, 510 (2d Cir. 2005) (quoting Mazurek v. Armstrong, 520 U.S. 968,
972 (1997)). The district court has wide discretion in determining whether to grant a
preliminary injunction. Moore, 409 F.3d at 511.
"The Second Circuit has defined 'irreparable harm' as 'certain and imminent harm for
which a monetary award does not adequately compensate,' noting that 'only harm shown to
be non-compensable in terms of money damages provides the basis for awarding injunctive
relief.'" Perri, 2008 WL 2944642, at * 2 (citing Wisdom Import Sales Co., L.L.C. v. Labatt
Brewing Co., Ltd., 339 F.3d 101, 113-14 (2d Cir. 2003)); see also Kamerling v. Massanari,
295 F.3d 206, 214 (2d Cir. 2002) ("To establish irreparable harm, a party seeking preliminary
injunctive relief must show that there is a continuing harm which cannot be adequately
redressed by final relief on the merits and for which money damages cannot provide
adequate compensation." (internal quotation omitted)). Speculative, remote or future injury is
not the province of injunctive relief. Los Angeles v. Lyons, 461 U.S. 95, 111-12 (1983); see
also Hooks v. Howard, No. 9:07-CV-0724 (RFT), 2008 WL 2705371, at *2 (N.D.N.Y. Jul. 3,
2008) ("Irreparable harm must be shown to be imminent, not remote or speculative, and the
injury must be such that it cannot be fully remedied by monetary damages.").
Plaintiff has filed several submissions seeking preliminary injunctive relief. Dkt. Nos.
2, 11; see also Dkt. Nos. 5, 6, 9, 10, 13-15, 25, 30 (submissions in support of requests for
preliminary injunctive relief). Construed liberally, plaintiff appears to request a court order
enjoining the defendants from any future violation of plaintiff's constitutional rights. Dkt. Nos.
2, 5. In support of his motions, plaintiff refers the Court to his complaint, and also attaches a
series of letters to David Rock, the Superintendent of Upstate C.F., outlining alleged
wrongdoing against plaintiff by various staff at Upstate C.F., and requesting Rock's
24

assistance.7 Dkt. No. 2 at 1-16; Dkt. No. 11. In a supplemental submission, plaintiff claims
that his life is in danger at Upstate C.F., and requests that he be transferred to a different
correctional facility and placed in protective custody. Dkt. No. 5 at 1-5.
Construing plaintiff's requests for preliminary injunctive relief liberally, plaintiff may
allege violations of his constitutional rights. Because an alleged violation of a constitutional
right "triggers a finding of irreparable harm," the Court will assume for purposes of this
motion only that plaintiff satisfies the requirement that a party applying for a preliminary
injunction show irreparable harm. Jolly, 76 F.3d at 482; see also Statharos v. New York City
Taxi and Limousine Comm'n, 198 F.3d 317, 322 (2d Cir. 1999) ("Because plaintiffs allege
deprivation of a constitutional right, no separate showing of irreparable harm is necessary.").
A party is not entitled to preliminary injunctive relief unless there is also proof of a
likelihood of succeeding on the merits of a claim, or evidence that establishes sufficiently
serious questions going to the merits of such a claim and a balance of hardships tipping
decidedly toward the party seeking such relief. See Covino, 967 F.2d at 77. In support of his
requests, plaintiff has submitted a series of letters to Superintendent Rock outlining alleged
wrongdoing against plaintiff and describing relief that he seeks (Dkt. No. 2), and affidavits of
two inmates apparently in support of some of his claims (Dkt. No. 15 at 16-17; Dkt. No. 25 at
4-6. Plaintiff also argues that the allegations in his complaint support his requests for
preliminary injunctive relief.8 The Court has reviewed plaintiff's motion papers thoroughly and
7

At the top of each letter addressed to Superintendent Rock, plaintiff has indicated that he is requesting
"Judicial Intervention." Dkt. No. 2 at 1, 10, 14.
8

To the extent that he relies on his complaint, plaintiff's allegations, standing alone, are not sufficient to
entitle him to preliminary injunctive relief. See Ivy Mar Co. v. C.R. Seasons Ltd., 907 F. Supp. 547, 561
(E.D.N.Y. 1995) ("[B]are allegations, without more, are insufficient for the issuance of a preliminary injunction.");
Hancock v. Essential Resources, Inc., 792 F. Supp. 924, 928 (S.D.N.Y. 1992) ("Preliminary injunctive relief
cannot rest on mere hypotheticals.").

25

considered the claims asserted therein in the light most favorable to plaintiff, as a pro se
litigant. Based upon that review, and despite assuming, for the purposes of his motions, that
plaintiff has alleged imminent danger, the Court finds that his motions for preliminary
injunctive relief (in any of the forms requested) must be denied. Plaintiff has failed to submit
proof or evidence establishing a likelihood of success on the merits, or showing any
particular hardship necessitating immediate action by the Court. See Moore, 409 F.3d at
510.
To the extent that plaintiff appears to seek injunctive relief against persons who are
not parties to this in this action (i.e., non-defendants), the Court lacks subject matter
jurisdiction to enjoin their actions. See Stewart v. United States I.N.S., 762 F.2d 193, 198-99
(2d Cir. 1985) (preliminary injunctive relief may be obtained "[o]nly after an action has been
commenced"); Williams v. State University of New York, 635 F. Supp. 1243, 1246 (E.D.N.Y.
1986) ("prior to the filing of a complaint a court lacks subject matter jurisdiction and is
powerless to grant preliminary injunctive relief"); In re Rationis Enterprises, Inc. of Panama,
261 F.3d 264, 270 (2d Cir. 2001) ("A court may not grant a final, or even an interlocutory,
injunction over a party over whom it does not have personal jurisdiction.") (citation omitted).
Consequently, plaintiff is not entitled to injunctive relief against persons who are not parties to
this action.
Finally, the law is clear that an inmate does not have a right to be confined to the
prison of his own choosing or to a particular type of housing. See Olim v. Wakinekona, 461
U.S. 238, 245 (1983) (inmates have no right to be confined in a particular state or particular
prison within a given state); Montayne v. Haymes, 427 U.S. 236, 243 (1976) (New York state
prisoners have no right to incarceration at a particular prison facility); Klos v. Haskell, 835 F.
26

Supp. 710, 723 (W.D.N.Y. 1993), aff'd, 48 F.3d 81 (2d Cir. 1995) (citing cases). Moreover,
DOCCS has "broad leeway in deciding where to house the inmates under its protective
care." McFadden v. Solfaro, Nos. 95 Civ. 1148, 95 Civ. 3790, 1998 WL 199923, at *10
(S.D.N.Y. Apr. 23, 1998); see also Meachum v. Fano, 427 U.S. 215, 229 (1976) ("The federal
courts do not sit to supervise state prisons, the administration of which is acute interest to the
states"). Thus, there is no legal basis for this Court to order plaintiff's transfer to another
correctional facility or to protective custody.
Plaintiff's motions for preliminary injunctive relief are denied.
G.

Motion for Default Judgment

Plaintiff's request for entry of default judgment (Dkt. No. 16) because there has been
no default. To date, no defendant has been served with process.
H.

Motion for Various Relief

Plaintiff asks for a teleconference to address requests for recusal, a change of venue,
and preliminary injunctive relief. Dkt. No. 27. Plaintiff's request for a teleconference is
denied as premature. Defendants have yet to be served or issue joined. Additionally, there
is no need for a teleconference to address his motions for preliminary injunctive relief, as
those motions have been denied. See Part II.F., supra.
Turning to plaintiff's request for recusal, a federal judge must recuse himself in any
proceeding where "his impartiality might reasonably be questioned [or] he has a personal
bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts
concerning the proceeding . . . ." See 28 U.S.C. § 455. In cases where a judge's impartiality
might reasonably be questioned, the issue for consideration is not whether the judge is in fact
subjectively biased, but whether the objective facts suggest prejudice. See Liteky v. United
27

States, 510 U.S. 540, 548 (1994). The ultimate inquiry is whether "a reasonable person,
knowing all the facts, [would] conclude that the trial judge's impartiality could reasonably be
questioned." Hughes v. City of Albany, 33 F. Supp. 2d 152, 153 (N.D.N.Y.) (Kahn, J.)
(quoting United States v. Lovaglia, 954 F.2d 811, 815 (2d Cir. 1992)), aff’d, 189 F.3d 461 (2d
Cir. 1999). However, a judge "is as much obliged not to recuse himself when it is not called
for as he is obliged when it is." Drexel, 861 F.2d at 1312 (citing In re Union Leader Corp.,
292 F.2d 381, 391 (1st Cir.), cert. denied, 368 U.S. 927 (1961)).
Plaintiff moves for recusal claiming that the Court has exhibited bias in delaying the
review of his complaint and requests for preliminary injunctive relief. Dkt. No. 27 at 2.
Plaintiff has not asserted any ground for recusal. Here, the undersigned has no personal
bias against plaintiff or interest in this litigation. Moreover, plaintiff has not presented any
objectively reliable facts that even suggest that the undersigned has been biased. To the
extent that plaintiff is unhappy with the speed in which his action has been processed, the
delay is in large part due to the very extensive and frequent filings by plaintiff himself, the
review of which necessarily slows the review of plaintiff's action. Plaintiff's motion for recusal
(Dkt. No. 27) is denied.
Plaintiff may also request change of venue. Dkt. No. 27 at 2. This request is also
denied.

III.

CONCLUSION
WHEREFORE, it is hereby
ORDERED that plaintiff's IFP Application (Dkt. No. 3) is GRANTED. The Clerk shall

provide the Superintendent of the facility that plaintiff has designated as his current location
28

with a copy of plaintiff's inmate authorization form (Dkt. No. 4) and notify that official that
plaintiff has filed this action and is required to pay to the Northern District of New York the
entire statutory filing fee of $350.00 pursuant to 28 U.S.C. § 1915; and it is further
ORDERED that the Clerk provide a copy of plaintiff's inmate authorization form to the
Financial Deputy of the Clerk's Office; and it is further
ORDERED that the following defendants and claims are DISMISSED with prejudice
for the reasons set forth above: (1) plaintiff's claim that defendants Bellamy, Fischer,
Gregory, Rock, and White impeded his ability to file grievances; (2) plaintiff's denial-ofaccess-to-the-courts claim based upon interference with his grievances; (3) plaintiff's claim
that defendants failed to adequately investigate alleged misconduct; (4) plaintiff's claims that
he was verbally harassed and threatened; and (5) defendants Gregory and White; and it is
further
ORDERED that the following defendants and claims are DISMISSED without
prejudice for the reasons set forth above: (1) plaintiff's failure-to-protect claims against
defendants LaBarr, King, Clintsman, Sergeant Hebert, Lt. Caron, John Doe - Z, Rock, Uhler,
Lira, Otis, Smith and Rushford; (2) plaintiff's conspiracy claims; and (3) defendants LaBarr,
Clintsman, Hebert, John Doe - Z, Lira, Otis, Bellamy, Fischer, Lamica, Oropallo, Dobbins,
Gokey, Rakoce, Zerniak, Roy, John Doe # 1, and John Doe # 2; and it is further
ORDERED that the Clerk shall issue summonses and forward them, along with copies
of the complaint, to the United States Marshal for service upon the remaining defendants -namely Caron, Clark, Stockwell, Richards, Conto, LeClair, Sisto, Dishaw, Carr, King,

29

Fournier, Smith, Rushford, Travers, Lashway, Rock, and Uhler;9 and it is further
ORDERED that a response to the complaint be filed by defendants Caron, Clark,
Stockwell, Richards, Conto, LeClair, Sisto, Dishaw, Carr, King, Fournier, Smith, Rushford,
Travers, Lashway, Rock, and Uhler, or their counsel as provided for in the Federal Rules of
Civil Procedure after service of process on the defendants; and it is further
ORDERED that the Clerk strike from the docket report the amended complaints (Dkt.
Nos. 12, 22, 26) for the reasons set forth above; and it is further
ORDERED that plaintiff's motions to amend (Dkt. Nos. 7, 23, 28) are DENIED without
prejudice; and it is further
ORDERED that plaintiff's motions for preliminary injunctive relief (Dkt. Nos. 2, 11) are
DENIED; and it is further
ORDERED that plaintiff's motion for default judgment (Dkt. No. 16) is DENIED; and it
is further
ORDERED that plaintiff's motion for various relief, including a hearing and recusal
(Dkt. No. 27) is DENIED in its entirety; and it is further
ORDERED that all pleadings, motions and other documents relating to this action be
filed with the Clerk of the United States District Court, Northern District of New York, 7th
Floor, Federal Building, 100 S. Clinton St., Syracuse, New York 13261-7367. Any paper
sent by a party to the Court or the Clerk must be accompanied by a certificate showing
that a true and correct copy of same was served on all opposing parties or their
counsel. Any document received by the Clerk or the Court which does not include a

9
The only remaining defendants are Caron, Clark, Stockwell, Richards, Conto, LeClair, Sisto, Dishaw,
Carr, King, Fournier, Smith, Rushford, Travers, Lashway, Rock, and Uhler. All other defendants are dismissed.

30

proper certificate of service will be stricken from the docket. Plaintiff must comply with
any requests by the Clerk's Office for any documents that are necessary to maintain this
action. All parties must comply with Local Rule 7.1 of the Northern District of New York in
filing motions. Plaintiff is also required to promptly notify the Clerk's Office and all
parties or their counsel of any change in his address; plaintiff's failure to do so will
result in the dismissal of this action; and it is further
ORDERED, that the Clerk shall serve a copy of this Decision and Order on plaintiff.
IT IS SO ORDERED.
DATED: November 20, 2012
Syracuse, NY

31