Rucano v. Koenigsmann et al

Filing 27

DECISION AND ORDER: ORDERED that the amended complaint (Dkt. No. 24 ) together with the supporting exhibits (Dkt. No. 1-1) is accepted for filing and is deemed the operative pleading. ORDERED that the Clerk of the Court is directed to create a ne w docket entry for the amended complaint. ORDERED that plaintiff's Eighth Amendment claims related to his dental/medical treatment at Great Meadow C.F. are DISMISSED. ORDERED that the Clerk shall issue a summonses and forward them, along wi th copies of the amended complaint, to the United States Marshal for service upon the remaining defendants. The Clerk shall forward a copy of the summonses and amended complaint to the Office of the New York Attorney General, together with a copy of this Decision and Order. ORDERED that a response to the amended complaint be filed by defendants, or their counsel, as provided for in the Federal Rules of Civil Procedure. Signed by Senior Judge Gary L. Sharpe on 9/15/16. (served on plaintiff by regular mail)(alh, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

ANTHONY RUCANO,
Plaintiff,
v.

9:16-CV-0438
(GLS/ATB)

CARL J. KOENIGSMANN et al.,
Defendants.

APPEARANCES:
ANTHONY RUCANO
11-A-0528
Plaintiff, pro se
Great Meadow Correctional Facility
Box 51
Comstock, NY 12821
GARY L. SHARPE
Senior United States District Judge
DECISION and ORDER
I.

INTRODUCTION
Pro se plaintiff Anthony Rucano commenced this civil rights action asserting claims

arising out of his confinement in the custody of the New York State Department of
Corrections and Community Supervision (DOCCS). By Decision and Order filed on May 23,
2016 (Dkt. No. 7) ("May Order"), this Court granted plaintiff's IFP application and reviewed
the sufficiency of the complaint in accordance with 28 U.S.C. § 1915(e) and 28 U.S.C.
§ 1915A. On the basis of that review, the Court dismissed the following claims with leave to
amend: (1) Eighth Amendment claims against defendant Correction Officer Ramirez

("Ramirez"); (2) claims that Ramirez failed to investigate in violation of plaintiff's constitutional
rights; (3) claims that Ramirez threatened plaintiff; (4) claims that Ramirez violated DOCCS
Directives; and (5) supervisory claims against defendants Carl J. Koenigsmann
("Koenigsmann"), Mary D'Silva ("D'Silva"), and Jane Doe.1 See Dkt. No. 7 at 20-21. The
Court ordered defendants Excelsa Serabian ("Serabian") and Edward Marra ("Marra") to
respond plaintiff's claim that they were deliberately indifferent to his medical/dental needs in
violation of the Eighth Amendment. See id. at 11-12. The Court also directed defendants
Superintendent Michael Kirkpatrick ("Kirkpatrick") and Health Services Director Vonda
Johnson ("Johnson") to respond to plaintiff's supervisory claims. See id. at 16-17.
In light of his pro se status, plaintiff was afforded an opportunity to submit an amended
complaint. See Dkt. No. 7 at 20. Presently before the Court is plaintiff's amended
complaint.2 Dkt. No. 24 ("Am. Compl.").
II.

LEGAL STANDARD
The legal standard governing the dismissal of a pleading for failure to state a claim

pursuant to 28 U.S.C. §1915A(b) was discussed at length in the May Order and it will not be
restated in this Decision and Order. See Dkt. No. 7 at 2-4. The Court will construe the
allegations in plaintiff's amended complaint with the utmost leniency. See, e.g., Haines v.
Kerner, 404 U.S. 519, 521 (1972) (holding that a pro se litigant's complaint is to be held "to a
less stringent standards than formal pleadings drafted by lawyers.").

1

Ramirez, Koenigsmann, D'Silva, and Jane Doe were dismissed as defendants in the action. See Dkt.
No. 7 at 21. The amended complaint does not contain any allegations against these defendants.
2

Defendants have not filed an answer to the original complaint and do not object to the filing of the
amended complaint subject to the Court's review for sufficiency. Dkt. No. 25. Defendants' time to respond to the
original complaint was stayed until further order of the Court. Dkt. No. 26.

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III.

SUMMARY OF AMENDED COMPLAINT3
The pleading reiterates the facts set forth in the original complaint related to plaintiff's

Eighth Amendment medical claims against Serabian and Marra and plaintiff's supervisory
claims against Kirkpatrick and Johnson. See Am. Compl., generally. The amended
complaint includes new factual allegations related to plaintiff's medical treatment at Great
Meadow Correctional Facility ("Great Meadow C.F."). Am. Compl. at 5. Plaintiff claims that
Marra, a dentist at Clinton C.F., maintains an office at Great Meadow C.F. Id. at 3. On June
2, 2016, plaintiff was transferred to Great Meadow C.F. and immediately "dropped a slip" to
the Dental Department requesting a visit. Id. Plaintiff did not receive a response. Id. On
July 21, 2016, plaintiff sent another request to the Dental Department and forwarded a copy
of the request to the Facility Dental Director.4 Am. Compl. at 6, 13.
IV.

ANALYSIS
The law related to personal involvement and § 1983 actions was discussed in the May

Order and will not be restated herein. See Dkt. No. 7 at 15-16. In the amended complaint,
plaintiff attempts to assert new Eighth Amendment claims related to his lack of dental care at
Great Meadow C.F. However, plaintiff did not identify the guards, officers, or staff at Great
Meadow C.F. who allegedly ignored his requests for treatment. The amended complaint
3

Plaintiff's original complaint included several exhibits. Dkt. No. 1-1. Plaintiff's amended complaint
includes a supplementary exhibit and incorporates the previous exhibits by reference. See Dkt. No. 24-1 at 2.
"Although it is well settled that an amended complaint supersedes a prior complaint in its entirety, it is clear to the
court that plaintiff intended to attach the exhibits to his amended complaint." Wellington v. Langendorf, No. 12CV-1019 (FJS/DEP), 2013 WL 3753978, at *3 (N.D.N.Y. July 15, 2013). To require plaintiff to file an amended
complaint that includes the original exhibits is, "an unnecessary procedural hoop that would waste resources and
delay resolution of this action." Alexander v. U.S., No. 13-CV-678, 2013 WL 4014539, at *4 (N.D. Cal. Aug. 5,
2013). Because plaintiff is pro se, the Court will consider the exhibits and documentation attached to the original
complaint as incorporated by reference in the amended complaint. See Alvarado v. Ramineni, No. 08-CV-1126
(TJM/GHL), 2011 WL 6937477, at *5, n.9 (N.D.N.Y. Dec. 6, 2011).
4

The facility dental director is not identified by name or in any other manner.

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does not contain any cause of action against any individual previously employed or currently
employed at Great Meadow C.F. Plaintiff alleges that Kirkpatrick, Johnson, and Serabian are
employees at Clinton C.F. and the amended complaint lacks any facts connecting these
defendants to Great Meadow C.F. See Am. Compl. at 2-3. With respect to Marra, even
assuming that Marra maintains an office at Great Meadow C.F., that fact alone is insufficient
to establish personal involvement. See Am. Compl. at 3. Plaintiff does not assert any
allegation against Marra related to his medical treatment at Great Meadow C.F. and the
amended complaint lacks any facts suggesting that Marra was personally involved in any
alleged constitutional violation at Great Meadow C.F.
As plaintiff has failed to plead facts suggesting how any of the named defendants
were personally involved in any decisions related to his treatment at Great Meadow C.F.,
plaintiff's Eighth Amendment claims related to his medical treatment at Great Meadow C.F.,
against Kirkpatrick, Johnson, Serabian, and Marra are dismissed for failure to plead personal
involvement pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b). 5
As a result of the review of the original complaint, the Court held that plaintiff's Eighth
Amendment claims against Serabian and Marra required a response. The Court also
directed Kirkpatrick and Johnson to respond to plaintif f's supervisory claims. These claims
are repeated and realleged in the amended complaint and thus, survive review as well.
V.

CONCLUSION

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Plaintiff's request to "remove the dismissed defendants" is unnecessary. See Hodges v. Retail
Grocery Inventory Serv., No. 01-1197, 2002 WL 1397173, at *1 (W.D.Tenn. Jan. 10, 2002) (denying a motion
seeking to amend a complaint to delete allegations or defendants who have already been dismissed from the
action); see also Thomas v. Robles, No. 09-CV-0443, 2009 WL 3817009, at *1 (E.D. Cal. Nov. 13, 2009)
(advising that a proposed complaint that seeks only to "clean up" the original complaint to include claims that the
court found cognizable is unnecessary).

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WHEREFORE, it is hereby
ORDERED that the amended complaint (Dkt. No. 24) together with the supporting
exhibits (Dkt. No. 1-1) is accepted for filing and is deemed the operative pleading; and it is
further
ORDERED that the Clerk of the Court is directed to create a new docket entry for the
amended complaint; and it is further
ORDERED that plaintiff's Eighth Amendment claims related to his dental/medical
treatment at Great Meadow C.F. are DISMISSED; and it is further
ORDERED that the Clerk shall issue a summonses and forward them, along with
copies of the amended complaint, to the United States Marshal for service upon the
remaining defendants. The Clerk shall forward a copy of the summonses and amended
complaint to the Office of the New York Attorney General, together with a copy of this
Decision and Order; and it is further
ORDERED that a response to the amended complaint be filed by defendants, or their
counsel, as provided for in the Federal Rules of Civil Procedure; and it is further
ORDERED that all pleadings, motions and other documents relating to this action
must bear the case number assigned to this action and 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 proper certificate of service will be

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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, in w riting, of any
change in his address; their failure to do so will result in the dismissal of his action;
and it is further
ORDERED that the Clerk of the Court shall serve a copy of this Decision and Order on
plaintiff in accordance with the Local Rules.
IT IS SO ORDERED.
September 15, 2016
Albany, New York

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