Parson v. York et al

Filing 24

DECISION AND ORDER: ORDERED that Plaintiff's amended complaint (Dkt. No. 18 ) is accepted for filing and is considered the operative pleading. ORDERED, that the two motions to dismiss (Dkt. Nos. 13 and 21 ) the original complaint are DENI ED as moot. ORDERED, that defendants Annucci and Miller shall file a response to plaintiff's amended complaint within thirty (30) days of the filing date of this Decision and Order. ORDERED, that plaintiff may submit a response to defendant York's motion to dismiss (Dkt. No. 19 ) the amended complaint on or before August 5, 2016. Defendant York's reply to any such response is due on or before August 12, 2016. Signed by Judge David N. Hurd on 7/13/16. (served on plaintiff by regular mail) (alh, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

DRAHCIR PARSON,
Plaintiff,
v.

9:16-CV-0167
(DNH/CFH)

NATHAN YORK, Sheriff, Warren County,
ANTHONY J. ANNUCCI, Commissioner,
and CHRISTOPHER MILLER, Superintendent,
Great Meadow Correctional Facility,
Defendants.

APPEARANCES:

OF COUNSEL:

DRAHCIR PARSON
Plaintiff, pro se
917 Altamont Ave.
Schenectady, NY 12303
LEMIRE, JOHNSON LAW FIRM
Attorneys for Defendant York
P.O. Box 2485
2534 Route 9
Malta, New York 12020

GREGG T. JOHNSON, ESQ.
APRIL J. LAWS, ESQ.

HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
Attorney for Defendants Annucci and Miller
The Capitol
Albany, New York 12224

MARK G. MITCHELL, ESQ.
Ass't Attorney General

DAVID N. HURD
United States District Judge

DECISION and ORDER
I. INTRODUCTION
Plaintiff Drahcir Parson ("Parson" or "plaintiff") commenced this action by filing a pro
se civil rights complaint pursuant to 42 U.S.C. § 1983. Dkt. No. 1 (" Compl."). Plaintiff, who
did not pay the filing fee for this action, requested leave to proceed in forma pauperis. Dkt.
No. 2 ("IFP Application").
After reviewing the complaint in accordance with 28 U.S.C. § 1915(e), in a Decision
and Order filed March 30, 2016, Parson's IFP Application was granted, plaintiff's Fourteenth
Amendment due process claims were found to survive sua sponte review, and the remaining
claims were dismissed. Dkt. No. 3 (the "March 2016 Order"). Summonses were issued, and
all defendants signed an acknowledgment of receipt of the summons and complaint. Dkt.
Nos. 5, 8, 9.
On May 2, 2016, defendant York filed a motion to dismiss the complaint. Dkt. No. 13.
In response to defendant York's motion to dismiss, Parson submitted an amended
complaint. Dkt. No. 18 ("Am. Compl."). On June 6, 2016, defendant York filed a motion to
dismiss the amended complaint. Dkt. No. 19. On June 20, 2016, def endants Annucci and
Miller filed a motion to dismiss the original complaint. Dkt. No. 21.
Presently under consideration are Parson's amended complaint (Dkt. No. 18) and the
motions to dismiss the original complaint (Dkt. Nos. 13, 21). 1

1

The motion to dismiss the amended complaint will be addressed separately.

2

II. DISCUSSION
A. Amended Complaint
Although Parson submitted his amended complaint as of right pursuant to Fed. R. Civ.
P. 15(a), because plaintiff is proceeding in forma pauperis, his amended complaint must still
be reviewed pursuant to 28 U.S.C. §§ 1915(e)(2) (B) before he can be permitted to proceed. 2
In the amended complaint, Parson alleges that, while he was confined at the Warren
County Jail as a pretrial detainee, he was (1) transferred to a maximum security state
correctional facility, (2) placed in segregated confinement, and (3) subjected to
unconstitutional conditions of confinement all in violation of his rights under the Due Process
Clause of the Fourteenth Amendment to the United States Constitution and state law .3 See
generally Am. Compl.
Mindful of the Second Circuit's instruction that a pro se plaintif f's pleadings must be
liberally construed, see, e.g., Sealed Plaintiff v. Sealed Defendant , 537 F.3d 185, 191 (2d
Cir. 2008), the amended complaint is accepted for filing and requires a response. In so
ruling, no opinion is expressed as to whether Parson's claims can withstand a properly filed
motion to dismiss or for summary judgment.4

2

Section 1915(e)(2)(B) directs that, when a plaintiff seeks to proceed in forma pauperis, "the court shall
dismiss the case at any time if the court determines that . . . the action or appeal (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."
3

Plaintiff also appears to claim that defendants violated his rights under the Eighth Amendment to the
United States Constitution. See Am. Compl. at 2. However, because plaintiff was a pretrial detainee at the time
of the alleged wrongdoing, the Eighth Amendment prohibition against cruel and unusual punishment would not
apply because "a pretrial detainee . . . cannot be punished at all," Johnston v. Maha, 606 F.3d 39, 41 (2d Cir.
2010), and any unconstitutional conditions claims would be analyzed under the Due Process Clause of the
Fourteenth Amendment. See Caiozzo v. Koreman, 581 F.3d 63, 69 (2d Cir. 2009).
4

Indeed, defendant York has already filed a motion to dismiss the amended complaint. No position is
taken on the motion to dismiss at this time.

3

B. Motions to Dismiss the Original Complaint
"Typically, the filing of an amended complaint following the filing of a motion to dismiss
the initial complaint moots the motion to dismiss." Brown v. Napoli, No. 07-CV-0838, 2008
WL 4507590, at *2 (W.D.N.Y. Sep. 29, 2008) (citing Haywood v. Republic Tobacco, Co.,
L.P., No. 05-CV-0842, 2007 WL 1063004 (W.D.N.Y. Apr. 6, 2007)). Two of the pending
motions to dismiss are addressed solely to Parson's original complaint. See Dkt. Nos. 13,
21. Since the amended complaint has been accepted for filing and is the operative pleading,
those motions to dismiss (Dkt. Nos. 13, 21) are denied as moot.
III. CONCLUSION
Therefore, it is
ORDERED that
1. Plaintiff's amended complaint (Dkt. No. 18) is accepted for filing and is considered
the operative pleading;
2. The two motions to dismiss (Dkt. Nos. 13 and 21) the original complaint are
DENIED as moot;
3. Defendants Annucci and Miller shall file a response to plaintiff's amended
complaint within thirty (30) days of the filing date of this Decision and Order; 5
4. Plaintiff may submit a response to defendant York's motion to dismiss (Dkt. No. 19)
the amended complaint on or before August 5, 2016. Defendant York's reply to any such
response is due on or before August 12, 2016; and
5. The Clerk shall serve a copy of this Decision and Order on the parties.
5

Defendant York has already responded to the amended complaint by filing a motion to dismiss the
amended complaint. Dkt. No. 19. As noted above, that motion will be addressed separately.

4

IT IS SO ORDERED.

Dated: July 13, 2016
Utica, New York.

5