Perez Olivo v. New York State Department of Corrections and Community Supervision et al

Filing 8

DECISION AND ORDER: ORDERED that plaintiff's IFP Application (Dkt. No. 2 ) is GRANTED. ORDERED that the following claims are DISMISSED with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b) as barred by the Eleventh Amendment: (1) all claims against the New York State Department of Corrections and Community Supervision and (2) the claims for monetary damages against defendants Annucci and Graham in their official capacities. ORDERED that the New York State Department of Corrections and Community Supervision is DISMISSED as a defendant. ORDERED that if plaintiff wishes to proceed with this action, he must file an amended complaint as directed above within thirty (30) days from filing date of thi s Decision and Order. ORDERED that, if plaintiff timely files an amended complaint, this matter be returned to the Court for further review. ORDERED that if plaintiff fails to timely file an amended complaint as directed above, the Clerk shall en ter judgment indicating that this action is DISMISSED without prejudice without further order of this Court pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b) for failure to state a claim upon which relief may be granted. In th at event, the Clerk is directed to close this case. Signed by Judge Brenda K. Sannes on 6/20/17. ( Notice of Compliance Deadline 7/20/2017, Case Review Deadline 8/21/2017) (Attachments: # 1 Unpublished Decision Cited) (served as directed)(alh, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

CARLOS PEREZ OLIVO,
a/k/a Carlos Perezolivo,
Plaintiff,
v.

9:17-CV-0357
(BKS/DJS)

NEW YORK STATE DEPARTMENT OF
CORRECTIONS AND COMMUNITY
SUPERVISION, et al.,
Defendants.

APPEARANCES:
CARLOS PEREZ OLIVO
a/k/a Carlos Perezolivo
08-A-6428
Plaintiff, pro se
Auburn Correctional Facility
Box 618
Auburn, NY 13021
BRENDA K. SANNES
United States District Judge
DECISION AND ORDER
I.

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

Perez Olivo, also known as Carlos Perezolivo, pursuant to 42 U.S.C. § 1983 ("Section
1983"), together with an in forma pauperis application. 1 Dkt. No. 1 ("Compl."); Dkt. No. 2
("IFP Application"). Plaintiff is currently incarcerated at Auburn Correctional Facility ("Auburn
C.F.") and has not paid the filing fee for this action.
1

This action was originally filed in the Western District of New York and was transferred to this District
by Order of United States District Judge David G. Larimer of the Western District of New York. Dkt. No. 3.

II.

DISCUSSION
A.

IFP Application

Plaintiff has submitted a completed and signed IFP Application (Dkt. No. 2) which
demonstrates economic need. See 28 U.S.C. § 1915(a)(2). Plaintiff has also filed the
inmate authorization form required in this District. Dkt. No. 6. Accordingly, plaintiff's IFP
Application is granted.
B.

Initial Screening

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).2 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
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

2
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

(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
alleged–but it has not 'show[n]'–'that the pleader is entitled to relief.'" Id. at 679 (quoting
Fed. R. Civ. P. 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).
3

Thus, a pleading that only "tenders naked assertions devoid of further factual enhancement"
will not suffice. Id. (internal quotation marks and alterations omitted).
C.

Summary of the Complaint

The complaint asserts alleged wrongdoing arising at Auburn C.F. while plaintiff was in
the custody of the New York State Department of Corrections and Community Supervision
("DOCCS"). See generally Compl. Plaintiff names the New York State Department of
Corrections and Community Supervision; Anthony Annucci, Commissioner of DOCCS; and
H. Graham, the Superintendent at Auburn C.F., as def endants. Compl. at 1-2. Plaintiff sues
all of the defendants in their individual and official capacities. The following facts are set
forth as alleged by plaintiff in his complaint.
Plaintiff was placed in the protective custody unit at Auburn C.F. near an inmate with
known mental health issues and an infectious disease ("Inmate 1"). Compl. at 5. On April
18, 2016, Inmate 1 threw an "unknown brown liquid" in plaintiff's face and eyes, "causing
[plaintiff] permanent vision impairment [and] physical pain." Id. Inmate 1 had thrown feces at
another inmate two months earlier and "days before assaulting plaintiff [Inmate 1] was moved
from Unit E-4 to E-7 for the same behavior." Id. Later that same day, another inmate "with a
known history of violent tendencies" ("Inmate 2"), who was also housed in the protective
custody unit with plaintiff, threw "an unknown milky substance on plaintiff's chest, causing
him physical discomfort and pain." Id. at 5-6. Inmate 2 "had just days before been released
from keeplock for aggressive behavior." Id. at 6. Defendants "hav[e] control over plaintiff
[and] failed to exercise and act like reasonable and careful people" because inmates with
known violent tendencies were allowed to be placed in the protective custody unit. Id. at 5-6.

4

Despite "repeated oral and written" requests, defendants "were indifferent to and
failed to provide plaintiff with medical care for injuries" suffered as a result of the assaults by
Inmate 1 and Inmate 2. Compl. at 7. Plaintiff "was finally seen by an ophthalmologist" in
September, 2016, but was never tested to see if he contracted an infectious disease. Id. As
relief, plaintiff seeks injunctive relief against defendant New York State Department of
Corrections and Community Supervision, namely that it "be sanctioned and prevented from
housing mentally ill inmates with a history of violent behaviour [sic] in protective custody." Id.
at 6. Plaintiff also seeks an award of monetary damages against all defendants. Id. For a
complete statement of plaintiff's claims, refer to the complaint.
Construed liberally, the complaint asserts Eighth Amendment failure-to-protect and
medical indifference claims against all of the defendants.
D.

Analysis

Plaintiff brings this action pursuant to Section 1983, which establishes a cause of
action for "the deprivation of any rights, privileges, or immunities secured by the Constitution
and laws" of the United States. 42 U.S.C. § 1983. "Section 1983 itself creates no
substantive rights, [but] . . . only a procedure for redress for the deprivation of rights
established elsewhere." Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993) (citation omitted).
1. Eleventh Amendment Immunity
The Eleventh Amendment has long been construed as barring a citizen from bringing
a suit against his or her own state in federal court, under the fundamental principle of
"sovereign immunity." U.S. Const. amend. XI ("The Judicial power of the United States shall
not be construed to extend to any suit in law or equity, commenced or prosecuted against
one of the United States by Citizens of another State, or by Citizens or Subjects of any
5

Foreign State."); Hans v. Louisiana, 134 U.S. 1, 10-21 (1890); Idaho v. Coeur d'Alene Tribe
of Idaho, 521 U.S. 261, 267 (1997); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S.
89, 100 (1984). Eleventh Amendment immunity is lost only if Congress unequivocally
abrogates states' immunity or a state expressly consents to suit. Gollomp v. Spitzer, 568
F.3d 355, 365-66 (2d Cir. 2009). It is well-settled that Congress did not abrogate states'
immunity through 42 U.S.C. § 1983, see Quern v. Jordan, 440 U.S. 332, 343-45 (1979), and
that New York State has not waived its immunity from suit on the claims asserted in plaintiff's
complaint. See generally Trotman v. Palisades Interstate Park Comm'n, 557 F.2d 35, 38-40
(2d Cir. 1977); Dawkins v. State of New York, No. 5:93-CV-1298 (RSP/GJD), 1996 W L
156764 at *2 (N.D.N.Y. 1996).
a. New York State Department of Corrections
and Community Supervision
State immunity extends not only to the states, but also to state agencies. See Puerto
Rico Aqueduct & Sewer Auth. v. Metcalf, 506 U.S. 139, 142-47 (1993); McGinty v. New York,
251 F.3d 84, 95 (2d Cir. 2001) ("The Eleventh Amendment extends immunity not only to a
state, but also to entities considered 'arms of the state.'"); Posr v. Court Officer Shield No.
207, 180 F.3d 409, 414 (2d Cir. 1999) ("An official arm of the state enjoys the same Eleventh
Amendment immunity from suit in federal court as is enjoyed by the state itself."). Thus,
plaintiff's claims against the New York State Department of Corrections and Community
Supervision fail because it is an arm of New York State. See Davis v. New York, 316 F.3d
93, 101 (2d Cir. 2002) (affirming dismissal of Section 1983 claims against DOCCS on 11th
Amendment grounds); Jones v. New York State Div. of Military and Naval Affairs, 166 F.3d
45, 49 (2d Cir. 1999) (the Eleventh Amendment bars Section 1983 suits against state

6

agencies). The fact that plaintiff seeks injunctive relief, in addition to monetary relief, against
the New York State Department of Corrections and Community Supervision does not change
this conclusion. In Ex Parte Young, 209 U.S. 123 (1908), the Supreme Court established an
exception to state sovereign immunity in federal actions where an individual brings an action
seeking injunctive relief against a state official for an ongoing violation of law or the
Constitution. Under the doctrine, a suit may proceed against a state official in his or her
official capacity, notwithstanding the Eleventh Amendment, when a plaintiff, "(a) alleges an
ongoing violation of federal law and (b) seeks relief properly characterized as prospective."
See In re Deposit Ins. Agency, 482 F.3d 612, 618 (2d Cir. 2007) (quotations and citations
omitted). However, such claims cannot be brought directly against the state, or a state
agency, but only against state officials in their official capacities. Santiago v. New York State
Dep't of Corr. Serv., 945 F.2d 25, 32 (2d Cir. 1991).
Accordingly, the New York State Department of Corrections and Community
Supervision, and all claims against it, are dismissed with prejudice pursuant to 28 U.S.C. §
1915(e)(2)(B) and 28 U.S.C. § 1915A(b) as barred by the Eleventh Amendment.
b. Official Capacity Claims Against Annucci and Graham
The Eleventh Amendment bars suits for damages against state officials acting in their
official capacities. See Kentucky v. Graham, 473 U.S. 159, 169 (1985) (a claim for damages
against state officials in their official capacity is considered to be a claim against the State
and is therefore barred by the Eleventh Amendment); Ying Jing Gan v. City of New York, 996
F.2d 522, 529 (2d Cir. 1993) ("To the extent that a state official is sued for damages in his
official capacity, such a suit is deemed to be a suit against the state, and the official is
entitled to invoke the Eleventh Amendment immunity belonging to the state."); Severino v.
7

Negron, 996 F.2d 1439, 1441 (2d Cir. 1993) ("[I]t is clear that the Eleventh Amendment does
not permit suit [under Section 1983] for money damages against state officials in their official
capacities."). Plaintiff names defendants Annucci and Graham in both their individual and
official capacities. Compl. at 2. Plaintiff identifies each defendant as an employee of the
DOCCS, and requests only monetary damages from Annucci and Graham. Id. at 2, 6.
Therefore, plaintiff's claims for monetary damages against defendants Annucci and
Graham in their official capacities are dismissed with prejudice pursuant to 28 U.S.C. §
1915(e)(2)(B) and 28 U.S.C. § 1915A(b) as barred by the Eleventh Amendment.
Although plaintiff did not request injunctive relief from defendants Annucci or Graham,
in light of plaintiff's pro se status, the Court has considered whether such relief might be
available. In Ex Parte Young, 209 U.S. 123 (1908), the Supreme Court established an
exception to state sovereign immunity in federal actions where an individual brings an action
seeking injunctive relief against a state official for an ongoing violation of law or the
Constitution. Under the doctrine, a suit may proceed against a state official in his or her
official capacity, notwithstanding the Eleventh Amendment, when a plaintiff, "(a) alleges an
ongoing violation of federal law and (b) seeks relief properly characterized as prospective."
See In re Deposit Ins. Agency, 482 F.3d 612, 618 (2d Cir. 2007) (quotations and citations
omitted). Despite the Court's liberal construction of plaintiff's complaint, plaintiff alleges no
facts to plausibly suggest that the wrongdoing alleged in the complaint is ongoing against
plaintiff so as to warrant issuance of prospective injunctive relief. Thus, insofar at plaintiff
seeks injunctive relief against defendants Annucci and Graham in their official capacities,
those claims are dismissed without prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28
U.S.C. § 1915A(b) as barred by the Eleventh Amendment.
8

2. Eighth Amendment Claims Against Annucci and Graham
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)).
It is well settled that "personal involvement of defendants in alleged constitutional
deprivations is a prerequisite to an award of damages under § 1983." Wright v. Smith, 21
F.3d 496, 501 (2d Cir. 1994) (quoting Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d
Cir. 1991)). "[A] Section 1983 plaintiff must 'allege a tangible connection between the acts of
the defendant and the injuries suffered.'" Austin v. Pappas, No. 04-CV-7263, 2008 WL
857528, at *2 (S.D.N.Y. Mar. 31, 2008) (quoting Bass v. Jackson, 790 F.2d 260, 263 (2d Cir.
1986)) (other citation omitted). If the defendant is a supervisory official, a mere "linkage" to
the unlawful conduct through "the prison chain of command" (i.e., under the doctrine of
respondeat superior) is insufficient to show his or her personal involvement in that unlawful
conduct. Polk County v. Dodson, 454 U.S. 312, 325 (1981); Richardson v. Goord, 347 F.3d
431, 435 (2d Cir. 2003); Wright, 21 F.3d at 501; Ayers v. Coughlin, 780 F.2d 205, 210 (2d
Cir. 1985). In other words, supervisory officials may not be held liable merely because they
held a position of authority. Black v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996). "[V]icarious
liability is inapplicable to . . . § 1983 suits." Iqbal 556 U.S. at 676.
9

Prior to Iqbal, the Second Circuit held that supervisory personnel may be considered
"personally involved" only if they (1) directly participated in the violation, (2) failed to remedy
that violation after learning of it through a report or appeal, (3) created, or allowed to
continue, a policy or custom under which the violation occurred, (4) had been grossly
negligent in managing subordinates who caused the violation, or (5) exhibited deliberate
indifference to the rights of inmates by failing to act on information indicating that the violation
was occurring. Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995) (citing Williams v. Smith,
781 F.2d 319, 323-24 (2d Cir. 1986)). 3
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."
3

The Second Circuit has not yet addressed how the Supreme Court's decision in Iqbal affected the
standards in Colon for establishing supervisory liability. See Grullon v. City of New Haven, 720 F.3d 133, 139
(2d Cir. 2013) (noting that Iqbal may have "heightened the requirements for showing a supervisor's personal
involvement with respect to certain constitutional violations" but not reaching the impact of Iqbal on Colon
because the complaint "did not adequately plead the Warden's personal involvement even under Colon"); see
also Hogan v. Fischer, 738 F.3d 509, 519 n.3 (2d Cir. 2013) (expressing "no view on the extent to which [Iqbal ]
may have heightened the requirements for showing a supervisor's personal involvement with respect to certain
constitutional violations[.]") (citing Grullon, 720 F.3d at 139).

10

Id. at 837; Hines v. Lacy, 189 F.3d 460 (2d Cir. 1999).
The complaint is devoid of any facts to plausibly suggest that defendants Annucci or
Graham were personally involved in the decision to house either Inmate 1 or Inmate 2 in the
protective custody unit with plaintiff. Even if plaintiff could provide facts to plausibly suggest
such personal involvement, the complaint includes no facts to plausibly suggest that
defendants Annucci or Graham acted with deliberate indifference with respect to plaintiff's
safety. In other words, there are no facts to plausibly suggest that the defendants had actual
knowledge that plaintiff faced a substantial risk of serious harm from Inmate 1 or Inmate 2
but disregarded that risk.4 See Farmer, 511 U.S. at 837 (Deliberate indifference requires that
the defendant official was "aware of facts from which the inference could be drawn that a
substantial risk of serious harm exist[ed]" and in fact "dr[e]w the inference."); see also Hayes
v. N.Y.C. Dep't of Corr., 84 F.3d 614, 620 (2d Cir. 1996) (defendant official must "ha[ve]
knowledge that an inmate faces a substantial risk of serious harm and . . . disregard[ ] that
risk by failing to take reasonable measures to abate the harm.").
The only factual allegations in plaintiff's complaint concerning defendants Annucci and
Graham with respect to plaintiff's failure-to-protect claims relate to their general supervision
of DOCCS facilities. See Compl. at 5 (alleging that defendants "hav[e] control over plaintiff").
Thus, it appears that plaintiff named Commissioner Annucci and Superintendent Graham as
defendants solely by virtue of their supervisory positions at DOCCS. However, Section 1983
4

In order to "sufficiently allege supervisory liability based upon deliberate indifference, a plaintiff must
show (1) that the supervisor had actual or constructive notice that unconstitutional acts were occurring and
deliberately failed to take corrective action and (2) that there is an affirmative causal link between the
supervisor's inaction and the plaintiff's injury." Ziemba v. Thomas, 390 F. Supp. 2d 136, 144 (D. Conn. 2005)
(citing Poe v. Leonard, 282 F.3d 123, 140 (2d Cir. 2002); Meriwether v. Coughlin, 879 F.2d 1037, 1048 (2d Cir.
1989)) (footnote omitted). The factual allegations in plaintiff's complaint are inadequate to make that showing
with regard to his failure-to-protect claims against defendants Annucci or Graham.

11

damages will not be imposed based upon a respondeat superior theory of liability.
Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir. 2003) ("[S]upervisor liability in a § 1983
action depends on a showing of some personal responsibility, and cannot rest on respondeat
superior.") (citing Al-Jundi v. Estate of Rockefeller, 885 F.2d 1060, 1065 (2d Cir. 1989)); see
also Gill v. Mooney, 824 F.2d 192, 196 (2d Cir. 1987) ("Dismissal of a section 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); Richardson, 347 F.3d at 435 ("[M]ere 'linkage in
the prison chain of command' is insufficient to implicate a state commissioner of corrections
or a prison superintendent in a § 1983 claim.") (quoting Ayers, 780 F.2d at 210); Wright, 21
F.3d at 501 (defendant may not be held liable simply because he holds a high position of
authority); Castillo v. Comm'r New York State DOCS, No. 06-CV-0858, 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").
Accordingly, plaintiff's Eighth Amendment failure-to-protect claims against defendants
Annucci and Graham are dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. §
1915A(b) for failure to state a claim upon which relief may be granted.
b. Medical Indifference Claims
In order to state an Eighth Amendment claim arising out of inadequate medical care, a
prisoner must show "'deliberate indifference to [his] serious medical needs.'" Chance v.
Armstrong, 143 F.3d 698, 702 (2d Cir. 1998) (quoting Estelle, 429 U.S. at 104). "First, the
alleged deprivation must be, in objective terms, sufficiently serious." Chance, 143 F.3d at
702 (internal quotation marks and citations omitted). Addressing the objective element, to
12

prevail a plaintiff must demonstrate a violation sufficiently serious by objective terms, "in the
sense that a condition of urgency, one that may produce death, degeneration, or extreme
pain exists." Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996). "Second, the
defendant must act with a sufficiently culpable state of mind," Chance, 143 F.3d at 702
(internal quotation marks and citations omitted); that is, the plaintiff must demonstrate that
the defendant "kn[ew] of and disregard[ed] an excessive risk to inmate health or safety."
Farmer, 511 U.S. at 837; see also Blyden v. Mancusi, 186 F.3d 252, 262 (2d Cir. 1999) (W ith
respect to the subjective element, a plaintiff must also demonstrate that defendant had "the
necessary level of culpability, shown by actions characterized by 'wantonness.'").
Even accepting the allegations in plaintiff's complaint as true, plaintiff has not alleged
any facts suggesting that defendants Annucci or Graham participated in the alleged
deprivation of medical care or had any personal knowledge of the alleged deprivation of
medical care. Although a plaintiff need not plead facts in great detail, plaintiff's formulaic and
conclusory allegations that defendants Annucci and Graham "were indifferent to and failed to
provide plaintiff with medical care for his injuries" without some facts to explain the basis for
those conclusions or how each of the named defendants participated in alleged wrongdoing,
are insufficient to state a claim against them. See Iqbal, 556 U.S. at 678 (A pleading that
only "tenders naked assertions devoid of further factual enhancement" will not survive sua
sponte review.) (internal quotations and alterations omitted). Although plaintiff alleges that
he made "repeated requests" for medical care, he does not allege to whom those requests
were made. Moreover, even if plaintiff could demonstrate that he notified Annucci and
Graham of his medical needs, he fails to provide any facts to plausibly suggest that either

13

defendant acted or failed to act with the requisite state of mind - deliberate indifference.5
To the extent that plaintiff appears to hold defendants Annucci and Graham
responsible for his alleged inadequate medical care because of their supervisory positions
with DOCCS, his claims also fail because a defendant may not be held liable simply because
he holds a high position of authority or is in charge of a prison. See Part II.D.2.a., supra
(citing cases).
Accordingly, plaintiff's Eighth Amendment medical indifference claims against
defendants Annucci and Graham are dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B) and
28 U.S.C. § 1915A(b) for failure to state a claim upon which relief may be granted.
E.

Dismissal with Leave to Amend

Based upon the foregoing, the Court finds that the complaint fails to state one or more
claims against the defendants upon which relief may be granted by this Court. As a result,
the complaint is dismissed in accordance with 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. §
1915A(b). In light of his pro se status, the Court will afford plaintiff the opportunity to file an
amended complaint. See Gomez v. USAA Fed. Savings Bank, 171 F.3d 794, 796 (2d Cir.
1999). Any amended complaint filed by plaintiff must bear his original signature, and must
be a complete pleading which will supersede and replace the original complaint in its entirety.
Plaintiff must name one or more defendants, and must set forth a short and plain statement
of the facts he relies on in support of his claim that the individual named as a defendant
engaged in misconduct or wrongdoing that violated plaintiff's constitutional rights. While it is
not improper for a plaintiff to identify a defendant only as "John/Jane Doe" at the outset of

5
The factual allegations in plaintiff's complaint are inadequate to make a showing of deliberate
indifference with respect to his medical care claims against defendants Annucci or Graham. See n.4, supra.

14

litigation, a complaint must nevertheless set forth factual allegations regarding the actions
taken by each Doe defendant which plaintiff relies on in support of his claim that the
defendant was personally involved in conduct that violated his constitutional rights.
Plaintiff is forewarned that, if he fails to submit an amended complaint within thirty (30)
days of the filing date of this Decision and Order, the Court will, without further order, dismiss
this action without prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b)
for failure to state a claim upon which relief may be granted.
III.

CONCLUSION
WHEREFORE, it is hereby
ORDERED that plaintiff's IFP Application (Dkt. No. 2) is GRANTED;6 and it is further
ORDERED that the Clerk provide the Superintendent of the facility designated by

plaintiff as his current location with a copy of plaintiff's authorization form (Dkt. No. 6), and
notify the official that this action has been filed and that plaintiff is required to pay to the
Northern District of New York the statutory filing fee of $350.00 in installments, over time,
pursuant to 28 U.S.C. § 1915; 7 and it is further
ORDERED that the Clerk shall provide a copy of plaintiff's authorization form (Dkt. No.
6) to the Financial Deputy of the Clerk's Office; and it is further
ORDERED that the following claims are DISMISSED with prejudice pursuant to 28

6

Plaintiff should note that although his IFP Application has been granted, he will still be required to pay
fees that he may incur in this action, including copying and/or witness fees.
7

"28 U.S.C. § 1915 permits an indigent litigant to commence an action in a federal court without
prepayment of the filing fee that would ordinarily be charged." Cash v. Bernstein, No. 09-CV-1922, 2010 WL
5185047, at *1 (S.D.N.Y. Oct. 26, 2010). "Although an indigent, incarcerated individual need not prepay the filing
fee at the time of filing, he must subsequently pay the fee, to the extent he is able to do so, through periodic
withdrawals from his inmate accounts." Id. (citing 28 U.S.C. § 1915(b) and Harris v. City of New York, 607
F.3d 18, 21 (2d Cir. 2010)).

15

U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b) as barred by the Eleventh Amendment: (1)
all claims against the New York State Department of Corrections and Community
Supervision and (2) the claims for monetary damages against defendants Annucci and
Graham in their official capacities;8 and it is further
ORDERED that the New York State Department of Corrections and Community
Supervision is DISMISSED as a defendant; and it is further
ORDERED that if plaintiff wishes to proceed with this action, he must file an amended
complaint as directed above within thirty (30) days from filing date of this Decision and
Order; and it is further
ORDERED that, if plaintiff timely files an amended complaint, this matter be returned
to the Court for further review; and it is further
ORDERED that if plaintiff fails to timely file an amended complaint as directed above,
the Clerk shall enter judgment indicating that this action is DISMISSED without prejudice
without further order of this Court pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. §
1915A(b) for failure to state a claim upon which relief may be granted. In that event, the
Clerk is directed to close this case; and it is further
ORDERED that the Clerk of the Court shall provide plaintiff with copies of the
unpublished decisions cited herein in accordance with the Second Circuit decision in Lebron
v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam); and it is further

8

Generally, when a district court dismisses a pro se action sua sponte, the plaintiff will be allowed to
amend his action. See Gomez v. USAA Fed. Savings Bank, 171 F.3d 794, 796 (2d Cir. 1999). However, an
opportunity to amend is not required where the defects in the plaintiff's claims are substantive rather than merely
formal, such that any amendment would be futile. Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000); see also
Pucci v. Brown, 423 Fed. App'x 77, 78 (2d Cir. 2011). Because these claims are barred by the Eleventh
Amendment, leave to amend is denied.

16

ORDERED that the Clerk shall serve a copy of this Decision and Order on plaintiff.
IT IS SO ORDERED.
Dated: June 20, 2017
Syracuse, NY

17