Cisco v. Stallone et al
Filing
29
MEMORANDUM DECISION AND ORDER: ORDERED that Plaintiff's 25 Motion to Amend to be GRANTED as to his claims against Superintendent Jones, Deputy Superintendent McLellen, and Corrections Officer Allen and DENIED as to his claims against Doctor K eiser. ORDERED that the Clerk of the Court is directed to file the Proposed Second Amended Complaint as the Second Amended Complaint in this action. The Second Amended Complaint, as modified herein, will supersede and replace the previously filed Am ended Complaint and will be the operative pleading. ORDERED that the Clerk of the Court issue Summonses and forward them, along with copies of the Second Amended Complaint, to the U.S. Marshal which shall serve the Second Amended Complaint upon Defendants Jones, McLellen, and Allen and that the Defendants be directed to respond in accordance with the Federal Rules of Civil Procedure. Signed by Magistrate Judge Daniel J. Stewart on 1/31/18. (served on plaintiff by regular mail)(alh, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
HENRY I. CISCO,
Plaintiff,
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Civ. No. 9:17-CV-347
(LEK/DJS)
DAVID STALLONE,
Defendant.
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APPEARANCES:
OF COUNSEL:
HENRY I. CISCO
Plaintiff Pro Se
630 Shore Road, Apt. 210
Long Beach, NY 11561
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HON. ERIC T. SCHNEIDERMAN
Attorney General of the State of New York
Attorney for Defendants
The Capitol
Albany, New York 12224
NICOLE E. HAIMSON, ESQ.
Assistant Attorney General
DANIEL J. STEWART
United States Magistrate Judge
MEMORANDUM DECISION and ORDER
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This action was commenced by Plaintiff pro se while he was incarcerated in the
custody of the New York State Department of Corrections and Community Supervision. The
Amended Complaint alleges generally that Plaintiff was repeatedly exposed to second hand
smoke in his housing unit and that Defendant Stallone, then the Superintendent at the facility,
was aware of this fact and failed to remedy the situation. See generally Dkt. No. 6. Plaintiff
has now filed a motion for leave to file a Second Amended Complaint. Dkt No. 25.
I. PLAINTIFF’S MOTION TO AMEND
Plaintiff’s Proposed Second Amended Complaint asserts the same general substantive
allegations presently pled in the Amended Complaint but against new defendants. Dkt. No.
25-2, Proposed Second Am. Compl. Defendant does not oppose the Motion. Dkt. No. 27.
A. Legal Standard for Motion to Amend
FED. R. CIV. P. 15(a) states, in pertinent part, that leave to amend a pleading should
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be “freely given when justice so requires.” Ellis v. Chao, 336 F.3d 114, 127 (2d Cir. 2003).
Indeed, leave to amend should be denied only in the face of undue delay, bad faith, undue
prejudice to the non-movant, futility of amendment, or where the movant has repeatedly
failed to cure deficiencies in previous amendments. Foman v. Davis, 371 U.S. 178, 182
(1962); Kropelnicki v. Siegel, 290 F.3d 118, 130 (2d Cir. 2002) (citing Chill v. Gen. Elec.
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Co., 101 F.3d 263, 271-72 (2d Cir. 1996)). “An amendment to a pleading is futile if the
proposed claim could not withstand a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6).”
Lucente v. Int'l Bus. Machines Corp., 310 F.3d 243, 258 (2d Cir. 2002) (citing Dougherty v.
North Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 88 (2d Cir.2002)). District courts are
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vested with broad discretion to grant a party leave to amend the pleadings. See Local 802,
Assoc. Musicians of Greater New York v. Parker Meridien Hotel, 145 F.3d 85, 89 (2d Cir.
1998).
For the reasons set forth below, the Motion for Leave to Amend is granted in part
and denied in part.
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B. Analysis of Plaintiff’s Motion
The Proposed Second Amended Complaint asserts an Eighth Amendment conditions
of confinement claim. Specifically, Plaintiff alleges that while incarcerated at Cayuga
Correctional Facility (“Cayuga”) he was regularly exposed to high levels of second hand
smoke which presented a significant danger to his health. He claims that he made prison
officials, including Superintendent Jones, Deputy Superintendent McLellen, Doctor Keiser,
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and Corrections Officer Allen, aware of alleged ongoing violations of smoking prohibitions
at the facility, that this was causing him medical problems, and that they deliberately refused
to address the situation. Proposed Second Am. Compl., pp. 4-9.
Judge Kahn previously found that allegations of this type were sufficient to survive
initial review against Defendant Stallone, the former Superintendent of Cayuga because
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Plaintiff had pled specific information regarding the nature of the allegations, the dates and
means by which he communicated those complaints to Stallone and attached copies of those
communications to the Complaint. Dkt. No. 10, pp. 4-5 (citing Scott v. Hollins, 2006 WL
1994757, at * 7 (W.D.N.Y. 2006)). The Proposed Second Amended Complaint makes nearly
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identical allegations as to Jones, the current Superintendent of Cayuga, and McLellen, the
Deputy Superintendent for Administration at Cayuga, including the same level of detail
regarding the nature and manner of Plaintiff’s communications with these Defendants.
Proposed Second Am. Compl., ¶¶ 1-9. Amendment to permit these claims is clearly
warranted under Fed. R. Civ. P. 15.
The same is true of the claim made against Corrections Officer Allen. Plaintiff claims
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that he directly advised Allen of the smoking problem in his housing unit, the medical impact
it had on him, and offered a proposed solution to the problem. Proposed Second Am.
Compl., ¶¶ 17 & 19. Plaintiff further alleges that Allen refused to direct inmates to comply
with the no smoking policy, that he told Plaintiff that “he doesn’t really care about” the
smoking issue and that Plaintiff’s alternative was “too much work.” Id. at ¶¶ 18 & 20.
Plaintiff has alleged that Officer Allen was made aware of conduct by inmates that was
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allegedly in violation of facility policy and harmful to Plaintiff and deliberately chose to do
nothing about it. These allegations, as with those regarding the Superintendent and Deputy
Superintendent sufficiently allege the elements of a conditions of confinement claim. Scott
v. Hollins, 2006 WL 1994757 at * 7.1
After reviewing the Proposed Second Amended Complaint, the Court concludes that
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the similar claims against Doctor Keiser are not sufficiently pled to withstand a motion under
Fed. R. Civ. P. 12(b)(6) and that amendment as to this Defendant would be futile. Lucente
v. Int'l Bus. Machines Corp., 310 F.3d at 258. The proposed pleading does not assert claims
against Keiser related to his actual medical treatment of Plaintiff. Instead, it appears that
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Plaintiff’s allegation is simply that as a medical professional Keiser could have, but failed
to, advise other correctional facility staff of the dangers of second hand smoke. While
Plaintiff alleges that he discussed the dangers of second hand smoke with Dr. Keiser and
requested his intervention regarding enforcement of the smoking policy at Cayuga, there is
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For these reasons the Proposed Second Amended Complaint is sufficiently pled as to these claims to withstand
review under 28 U.S.C. §§ 1915(e)(2)(B) and 1915(A).
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no allegation that Keiser had any authority to regulate or control that policy at the facility.
Nor is there any allegation that Keiser had any authority to direct inmates or security staff
to comply with or otherwise change the facility smoking policy. For these reasons, the
Proposed Second Amended Complaint fails to allege Keiser’s personal involvement. See
e.g., Hatzfield v. Goord, 2007 WL 700961 at *3 (N.D.N.Y. Feb. 28, 2007) (dismissing for
lack of personal involvement because there was no allegation that defendant had the power
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to create or terminate the policy). Leave to amend to add this claim, therefore, is denied as
futile.
Accordingly, it is ordered that leave to file the Second Amended Complaint regarding
claims against Jones, McLellan, and Allen is granted, but that leave to add the claims against
Dr. Keiser be denied.
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II. CONCLUSION
For the reasons stated herein, it is hereby
ORDERED that Plaintiff’s Motion to Amend to be GRANTED as to his claims
against Superintendent Jones, Deputy Superintendent McLellen, and Corrections
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Officer Allen and DENIED as to his claims against Doctor Keiser; and it is further
ORDERED that the Clerk of the Court is directed to file the Proposed Second
Amended Complaint as the Second Amended Complaint in this action. The Second
Amended Complaint, as modified herein, will supersede and replace the previously filed
Amended Complaint and will be the operative pleading; and it is further
ORDERED that the Clerk of the Court issue Summonses and forward them, along
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with copies of the Second Amended Complaint, to the U.S. Marshal which shall serve2 the
Second Amended Complaint upon Defendants Jones, McLellen, and Allen and that the
Defendants be directed to respond in accordance with the Federal Rules of Civil Procedure;
and it is further
ORDERED, that the Clerk of the Court serve a copy of this Memorandum-Decision
and Order upon the parties to this action.
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Date: January 31, 2018
Albany, New York
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Because Plaintiff was previously granted in forma pauperis status, he is entitled to have the U.S. Marshal
execute service of process on his behalf. Plaintiff should note, however, that notwithstanding his in forma pauperis
status, he is still required to pay fees that he may incur in this action, including copying and/or witness fees.
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