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 ( Notice of Compliance Deadline 7/20/2017, Case Review Deadline 8/21/2017) (Attachments: # 1 Unpublished Decision Cited) (served as directed)(alh, )
Dawkins v. State, Not Reported in F.Supp. (1996)
1996 WL 156764
1996 WL 156764
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Because I find that the Eleventh Amendment provides
immunity for some defendants on some claims, I grant in
part and deny in part, defendants' motion for summary
judgment.
Emon DAWKINS, Plaintiff,
v.
The STATE OF NEW YORK, Trooper Antone
R. Irwin of the New York State Police and The
New York State Police Department, Defendants.
DISCUSSION
No. 93-CV-1298 (RSP/GJD).
|
March 28, 1996.
Attorneys and Law Firms
Emon Dawkins, Liverpool, New York, Plaintiff, Pro Se.
Dennis C. Vacco, Attorney General of the State of New
York, Syracuse, New York, for Defendants; G. Robert
McAllister, Assistant Attorney General, of counsel.
MEMORANDUM, DECISION AND ORDER
POOLER, District Judge.
INTRODUCTION
*1 On June 13, 1992, defendant New York State police
officer Antone R. Irwin (“Trooper Irwin”) stopped and
ticketed plaintiff Emon Dawkins for speeding on the
New York State Thruway. Dawkins pled not guilty
and elected trial in the Town Court of Dewitt, New
York. When Dawkins appeared for trial, he received an
additional ticket 1 for driving an unregistered vehicle. The
Town Court found Dawkins not guilty of both charges.
Dawkins then filed this lawsuit claiming that Trooper
Irwin (1) stopped him without probable cause and on
racial grounds, and (2) issued the unregistered vehicle
citation in retaliation for electing trial on the speeding
charge. Dawkins alleges that his Fourth, Sixth, Eighth,
and Fourteenth Amendment rights have been violated
and seeks redress under 42 U.S.C. §§ 1983 and 1985.
Defendants all move for summary judgment pursuant to
Fed. R. Civ. P. 56, arguing that Dawkins' claims are
barred by the Eleventh Amendment to the United States
Constitution.
I. Summary Judgment Standard
Summary judgment is granted when viewing the evidence
in a light most favorable to the nonmovant, the court
determines that there are no genuine issues of material
fact and the movant is entitled to judgment as a matter
of law. Fed. R. Civ. P. 56(c); Eastman Kodak Co. v.
Image Technical Servs., Inc., 504 U.S. 451, 456 (1992).
A party seeking summary judgment must demonstrate
the absence of a genuine issue of material fact. Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant
satisfies this initial burden, then the burden shifts to
the nonmovant to proffer evidence demonstrating that a
trial is required because a disputed issue of fact exists.
Weg v. Macchiarola, 995 F.2d 15, 18 (2d Cir. 1993).
The nonmovant must do more than present evidence
that is merely colorable, conclusory, or speculative and
must present “concrete evidence from which a reasonable
juror could return a verdict in his favor.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). In short,
the nonmovant must demonstrate to the court that issues
of fact exist that must be decided by a factfinder, because
“they may reasonably be decided in favor of either party.”
Thompson v. Gjivoje, 896 F.2d 716, 720 (2nd Cir. 1990).
II. Pro Se Plaintiff
Because Dawkins is a pro se plaintiff, his complaint must
be construed liberally and should be dismissed only “if it
appears beyond doubt that [he] can prove no set of facts
in support of his claim which would entitle him to relief.”
Estelle v. Gamble, 429 U.S. 97, 106 (1976) (quotations
omitted).
III. Defendants New York State and the New York
State Police Department
It is well settled that “[a]bsent a waiver on the part of
the state, or a valid congressional override, the eleventh
amendment prohibits federal courts from entertaining
suits by private parties against the states.” Farid v. Smith,
850 F.2d 917, 920-21 (2d Cir. 1988) (citing Kentucky v.
© 2017 Thomson Reuters. No claim to original U.S. Government Works.
1
Dawkins v. State, Not Reported in F.Supp. (1996)
1996 WL 156764
Graham, 473 U.S. 159 (1985)). When Congress enacted
Sections 1983 and 1985, it did not abrogate the state's
Eleventh Amendment immunity. United States v. City of
Yonkers, 880 F. Supp 212, 231 (S.D.N.Y. 1995) (citing
Quern v. Jordan, 440 U.S. 332 (1979). Because New
York State has Eleventh Amendment immunity from suit,
Dawkins' claims against defendant New York State are
dismissed.
*2 It is equally well established that the “Eleventh
Amendment's containment of federal judicial power is
not restricted to actions where the state is a named
defendant, but extends further to those actions where
liability, if imposed, must be paid from the state fisc.” New
York City Health & Hosp. Corp. v. Perales, 50 F.3d 129,
134 (2d Cir. 1995). For Eleventh Amendment purposes,
governmental entities of a state that are considered “arms
of the state” receive Eleventh Amendment immunity.
Will v. Michigan Dep't of Police, 491 U.S. 58, 70 (1989).
Because defendant New York State Police Department is
a division of the executive department of New York State,
Dawkins claims against the department are dismissed. See
N.Y.Exec.Law § 210 (McKinney 1993); Komlosi v. New
York State OMRDD, 64 F.3d 810 (2d Cir. 1995) (holding
that OMRDD is an arm of the state and thus cannot be
sued under §1983); see also Oliver Schools, Inc. v. Foley,
930 F.2d 248, 252 (2d Cir. 1991).
Moreover, New York State and the New York State
Police Department are not “person[s]” within the meaning
of Sections 1983 and 1985. See Howlett v. Rose, 496
U.S. 356, 365 (1990); see also, Thompson v. State of New
York, 487 F. Supp. 212, 228 (N.D.N.Y. 1979, Munson, J.)
(holding that the State of New York and the New York
State Police Department are not “persons” for purposes
of the threshold requirement of a cause of action under §
1985).
Because defendants New York State and the New York
State Police Department (1) have not consented either
expressly or impliedly to permit this suit to proceed in
federal court and (2) are not “persons” within the meaning
of the relevant statutes, I dismiss the claims against these
two defendants. 2
IV. Defendant Antone R. Irwin
A. Section 1985
Section 1985(3) makes it illegal “[i]f two or more persons ...
conspire ... for the purposes of depriving .. any person or
class of persons of the equal protection of the laws.” 42
U.S.C. § 1985(3). Trooper Irwin is the only person named
or mentioned in Dawkins' complaint. Because Dawkins
fails to offer any support for his claim that two or more
persons conspired to deny him his rights, I must dismiss
his Section 1985 claim against Trooper Irwin.
B. Section 1983
A Section 1983 claim requires that Dawkins prove that
(1) Trooper Irwin deprived him of a federal right and (2)
Trooper Irwin acted under color of state law. Gomez v.
Toledo, 446 U.S. 635, 640 (1980).
In his motion for summary judgment, Trooper Irwin
spends great energy arguing that a cause of action alleging
only that, “harm from official capacity acts is barred
by the Eleventh Amendment.” McAllister Aff., at ¶ 5.
Trooper Irwin is only partially correct.
A suit against Trooper Irwin in his official capacity, is
a suit against the state and he is “entitled to invoke the
Eleventh Amendment immunity belonging to the state.”
Ying Jing Gan v. City of New York, 996 F.2d 522, 529 (2d
Cir. 1993). Therefore, Dawkins' Section 1983 claim made
against Trooper Irwin in his official capacity is dismissed.
*3 However, a claim against Trooper Irwin in his
individual capacity, even when performing official acts,
is not afforded Eleventh Amendment protection. Id. 3
Although Dawkins' complaint is silent concerning the
capacity in which he sues Trooper Irwin, his failure to
specify the capacity does not justify an outright dismissal
of his claim. Oliver Schools, 930 F.2d at 252; see also
Kentucky, 473 U.S. at 167 n. 14, (1985) (indicating that “in
many cases the complaint will not clearly specify whether
officials are sued personally, in their official capacity, or
both” and “[t]he course of proceedings ... will indicate the
nature of the liability sought to be imposed.” (citations
and internal quotations omitted)). 4
During oral argument Dawkins stated that his claims
against Trooper Irwin are in both his individual and
official capacity. Therefore, I accept that Dawkins intends
to proceed against Trooper Irwin in his individual
capacity and find that the Eleventh Amendment does not
protect Trooper Irwin from Dawkins' individual capacity
© 2017 Thomson Reuters. No claim to original U.S. Government Works.
2
Dawkins v. State, Not Reported in F.Supp. (1996)
1996 WL 156764
claims. Farid, 850 F.2d at 921 (2d Cir. 1988) (holding
that “[t]he eleventh amendment bars recovery against an
employee who is sued in his official capacity, but does
not protect him from personal liability if he is sued in
his ‘individual’ or ‘personal’ capacity.”(quoting Kentucky,
473 U.S. at 166-67)).
Defendants' reliance on Pennhurst State School & Hosp.
v. Halderman, 465 U.S. 89 (1984), is misplaced. Pennhurst
stands for the proposition that the Eleventh Amendment
prohibits federal courts from ordering state officials to
conform their conduct to state law. Id. at 121 (holding that
“a claim that state officials violated state law in carrying
out their official responsibilities is a claim against the State
that is protected by the Eleventh Amendment.”).
Pennhurst bars state claims against state officials in
their official capacities. Dawkins claims that his federal
constitutional rights were violated by a state employee
acting under color of state law in his individual capacity.
Pennhurst is not applicable. See Farid, 850 F.2d at 921
(holding that “the [Supreme Court] has consistently held
that the eleventh amendment does not protect state
officials from personal liability when their actions violate
federal law, even though state law purports to require such
actions.”).
Dawkins' Section 1983 claim against Trooper Irwin in
his individual capacity is not barred by the Eleventh
Amendment.
2. Qualified Immunity
Trooper Irwin also argues that “without a showing of
a violation of a clearly established right and affirmative
proof of some ultra vires conduct ... an individual
capacity action cannot be maintained.” Def.'s Mem. at
6. Although Irwin makes this statement in support of his
Eleventh Amendment argument, it could also be read as
a claim of qualified immunity. The doctrine of qualified
immunity protects public employees in their individual
capacities. Hafer, 502 U.S. at 31. Qualified immunity
“shields government officials from liability for damages
on account of their performance of discretionary official
functions insofar as their conduct does not violate clearly
established statutory or constitutional rights of which
a reasonable person would have known.” Rodriguez v.
Phillips, 66 F.3d 470, 475 (2d Cir 1995) (citations and
internal quotations omitted). The standard governing
the use of a qualified immunity defense “has evolved
into one of objective reasonableness, designed to ‘permit
the resolution of many insubstantial claims on summary
judgment.”’ Robison v. Via, 821 F.2d 913, 920 (2d Cir.
1987) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982)).
*4 However, qualified immunity is an affirmative defense
which the individual defendant must plead. The Supreme
Court has held that there is “no basis for imposing on
the plaintiff an obligation to anticipate such a defense
by stating in his complaint that the defendant acted in
bad faith.” Gomez, 446 U.S. at 640. Rather, “[i]t is for
the official to claim that his conduct was justified by an
objectively reasonable belief that it was lawful.” Id.
Even if I read Trooper Irwin's answer liberally to include
a qualified immunity defense, he fails in this motion to
establish that “it was objectively reasonable for [him] to
believe that his acts did not violate [Dawkins] rights.”
Robison, 821 F.2d at 921 (2d Cir. 1987). 5
According to Dawkins he was (1) stopped by officer
Irwin while driving at a legal rate of speed, (2) asked to
produce his drivers license, vehicle registration, thruway
toll card and proof of insurance, (3) ticketed for
speeding, and (4) advised, but not ticketed, for an expired
vehicle registration. Trooper Irwin had possession of the
documents for a total of five minutes. After leaving the
scene, Dawkins noticed that the speeding ticket misstated
the correct time of day and listed his rate of speed at sixtyeight miles per hour as opposed to Trooper Irwin's oral
representation that Dawkins was traveling at fifty-eight
miles per hour. At trial, Trooper Irwin issued Dawkins a
ticket for driving an unregistered vehicle. Found innocent
on both charges, Dawkins alleges that Trooper Irwin (1)
illegally stopped and detained him based on race and
without probable cause, and (2) ticketed him for the
unregistered vehicle in retaliation for electing trial. Compl.
at II(c).
In his answer and in his memorandum of law in support
of his motion for summary judgment, Trooper Irwin fails
to provide any evidence concerning his underlying basis
for stopping Dawkins. Nor does he offer any justification
for ticketing Dawkins for an unregistered vehicle three
months after the initial stop. The record before me does
not contain an affidavit or affirmation from Trooper
Irwin giving his version of the incident. Moreover, lacking
any evidence to the contrary, I accept as true, Dawkins'
© 2017 Thomson Reuters. No claim to original U.S. Government Works.
3
Dawkins v. State, Not Reported in F.Supp. (1996)
1996 WL 156764
statement that he was driving at a legal rate of speed,
received a second ticket in retaliation for electing trial, and
identity of the government that employs them. By
contrast, officers sued in their personal capacity come
to court as individuals... the Eleventh Amendment
does not erect a barrier against suits to impose
individual and personal liability on state officials
under § 1983.” Hafer v. Melo, 502 U.S. 21, 27, 31
(1991) (citations and internal quotations omitted).
was found innocent of both offenses. 6
Defendant has done nothing to refute Dawkins' claims.
Because Trooper Irwin fails to offer any support
concerning the objective reasonableness of stopping
Dawkins, ticketing him, and then ticketing him again
three months after the initial stop, I deny his motion for
4
summary judgment. 7
5
CONCLUSION
For the foregoing reasons I (1) GRANT defendants
motion for summary judgment on behalf of defendants
State of New York State and the New York State
Police Department, (2) GRANT defendant Antone R.
Irwin's motion for summary judgement with respect to
claims as they relate to acts in his official capacity,
(3) GRANT defendant Antone R. Irwin's motion for
summary judgment with respect to the Section 1985 claim,
and (4) DENY defendant Irwin's motion for summary
judgement with respect to claims against him in his
personal capacity under Section 1983.
6
*5 IT IS SO ORDERED
1
2
3
Defendants contend that Trooper Irwin gave
Dawkins the additional ticket at the time of the initial
stop. Defs.' Answer at ¶ 2.
In his responsive papers, Dawkins requests
“declaratory or injunctive relief based on the State of
New York policies and statutes of New York Civil
Rights Law § 50-a, and Public Office (sic) Law § 89(2)
(b) and the use thereof.” Pl.'s Mem. at 2. However,
attempts to secure prospective relief requiring state
officials to comply with state law, as opposed to
federal law, is barred by the Eleventh Amendment.
Pennhurst State School and Hosp. v. Halderman, 465
U.S. 89, 103-106 (1984) Therefore, Dawkins' new
claim for prospective relief cannot be sustained and is
barred by the Eleventh Amendment.
“Will itself makes clear that the distinction between
official-capacity suits and personal-capacity suits is
more than a mere pleading device. State officers sued
for damages in their official capacity are not persons
for purposes of the suit because they assume the
7
Notwithstanding Dawkins' failure to make clear
his intention to state a claim against Trooper
Irwin individually, Defendants' memorandum of law
acknowledges a cause of action against Trooper Irwin
in his individual capacity. Def.'s Mem. at 4.
For the purposes of discussing qualified immunity
I will read defendants' answer liberally. However, it
is not clear from defendants' answer that they have
preserved the right to raise a qualified immunity
defense. If leave to amend the answer is requested, it
might well be granted. See, Satchell v. Dilworth, 745
F.2d 781, 784 (2d Cir. 1984).
In his complaint, Dawkins alleges violations to his
Fourth, Sixth, Eighth, and Fourteenth Amendment
Rights. Because defendants focus their motion for
summary judgment on their affirmative defenses, I
do not sua sponte consider the merits of Dawkins'
claims. However, I note that, “an ordinary traffic
stop constitutes a limited seizure within the meaning
of the Fourth and Fourteenth Amendments.” U.S.
v. Scopo, 19 F.3d 777, 781 (2d Cir. 1994) (quoting
U.S. v. Hassan El, 5 F.3d 726, 729 (4th Cir.1993).
Accordingly, Trooper Irwin's stop of Dawkins, “must
be justified by probable cause or a reasonable
suspicion, based on specific and articulable facts, of
unlawful conduct.” Id. (citations omitted). Probable
cause exist when the police reasonably believe that
“an offense has been or is being committed.” Id.
(citing United States v. Cruz, 834 F.2d 47, 50
(2d Cir.1987), cert. denied, 484 U.S. 1077 (1988).
“When an officer observes a traffic offense-- however
minor--he has probable cause to stop the driver of
the vehicle.” Id. at 782 (quoting United States v.
Cummins, 920 F.2d 498, 500 (8th Cir.1990)).
In order to prevail on a qualified immunity defense,
the defendant must show either (1) “it was not clear
at the time of the official acts that the interest asserted
by the plaintiff was protected by a federal statute or
the Constitution”; (2) “it was not clear at the time
of the acts at issue that an exception did not permit
those acts”; or (3) “it was objectively reasonable for
[Trooper Irwin] to believe that his acts did not violate
[Dawkins'] rights. Robison, 821 F.2d at 920-21.
© 2017 Thomson Reuters. No claim to original U.S. Government Works.
4
Dawkins v. State, Not Reported in F.Supp. (1996)
1996 WL 156764
All Citations
Not Reported in F.Supp., 1996 WL 156764
End of Document
© 2017 Thomson Reuters. No claim to original U.S. Government Works.
© 2017 Thomson Reuters. No claim to original U.S. Government Works.
5
Austin v. Pappas, Not Reported in F.Supp.2d (2008)
2008 WL 857528
2008 WL 857528
Only the Westlaw citation is currently available.
United States District Court,
S.D. New York.
Richard AUSTIN, Plaintiff,
v.
Brian PAPPAS, John Does, Yonkers
Police Commissioner Charles C. Coles,
Westchester County, Defendants.
No. 04-CV-7263 (KMK)(LMS).
|
March 31, 2008.
Attorneys and Law Firms
Mr. Richard Austin, Stormville, NY, pro se.
Rory Carleton McCormick, Esq., Corporation Counsel,
City of Yonkers, Yonkers, NY, for Defendants.
ORDER ADOPTING REPORT
& RECOMMENDATION
KENNETH M. KARAS, District Judge.
*1 Richard Austin (“Plaintiff”) filed this suit pursuant
to 42 U.S .C. § 1983 (“Section 1983”) against Yonkers
Police Officer Brian Pappas (“Defendant Pappas”),
several John Doe Yonkers Police Officers (“John Doe
Defendants”), former Yonkers Police Commissioner
Charles C. Cola (“Defendant Cola”) (whose name is
misspelled in Plaintiff's Complaint as Charles C. Coles),
and Westchester County (collectively, “Defendants”),
alleging violations of Plaintiff's civil rights under the
First, Fourth, Fifth, Eighth, and Fourteenth Amendments
of the United States Constitution, along with various
supplemental state law claims. 1 (Compl.¶¶ 17, 19.)
Plaintiff alleged that these violations occurred when
Defendants failed to protect Plaintiff from Franklyn
Kelley, a private individual who physically attacked
Plaintiff during the course of Plaintiff's May 16, 2003
arrest. (Id. ¶ 10.) Plaintiff alleged that Defendant Pappas
and the John Doe Defendants handcuffed him and pinned
him to the ground while Franklyn Kelley repeatedly
kicked and punched Plaintiff in the face. (Id. (“The officers
did nothing to protect the plaintiff from this vicious
assault, even though plaintiff was helpless and in their
custody [.]”).) Defendants moved for summary judgment,
and this Motion was referred by Judge McMahon to Chief
Magistrate Judge Lisa M. Smith for review pursuant to 28
U.S.C. § 636(b)(1). On August 2, 2007, Magistrate Judge
Smith issued a thorough Report and Recommendation
(“R & R”), concluding that this Court should grant
Defendants' Motion for Summary Judgment on the
ground that Plaintiff has failed to demonstrate that there
exists a genuine issue of material fact as to whether his
constitutional rights were violated. Plaintiff was advised
of his right to file objections to the R & R, but he did not
do so.
1
On August 8, 2005, Plaintiff's claim against
Westchester County was dismissed by the Honorable
Gerald E. Lynch, to whom this case was initially
assigned. On February 28, 2006, the case was
transferred to White Plains and reassigned to Judge
Colleen McMahon. The case was reassigned to the
undersigned on August 6, 2007.
A district court reviewing a report and recommendation
“ ‘may accept, reject, or modify, in whole or in part,
the findings or recommendations made by the magistrate
judge.’ “ Donahue v. Global Home Loans & Fin., Inc., No.
05-CV-8362, 2007 WL 831816, at *1 (S.D.N.Y. Mar. 15,
2007) (quoting 28 U.S.C. § 636(b)(1)(C)). Under 28 U.S.C.
§ 636(b)(1) and Rule 72(b) of the Federal Rules of Civil
Procedure, parties may submit objections to a magistrate
judge's report and recommendation. The objections must
be “specific” and “written,” and must be made “within 10
days after being served with a copy of the recommended
disposition.” Fed.R.Civ.P. 72(b)(2); see also 28 U.S.C. §
636(b)(1).
Where a party does not submit an objection, “ ‘a district
court need only satisfy itself that there is no clear error
on the face of the record.’ “ Donahue, 2007 WL 831816,
at *1 (quoting Nelson v. Smith, 618 F.Supp. 1186, 1189
(S.D.N.Y.1985)). In addition, a party's failure to object
waives that party's right to challenge the report and
recommendation on appeal. See Fed. Deposit Ins. Corp.
v. Hillcrest Assocs., 66 F.3d 566, 569 (2d Cir.1995) (“Our
rule is that ‘failure to object timely to a magistrate's report
operates as a waiver of any further judicial review of the
magistrate's decision.’ “ (quoting Small v. Sec'y of Health
and Human Servs., 892 F.2d 15, 16 (2d Cir.1989))).
© 2017 Thomson Reuters. No claim to original U.S. Government Works.
1
Austin v. Pappas, Not Reported in F.Supp.2d (2008)
2008 WL 857528
*2 Here, Plaintiff has not filed objections to the R
& R. Accordingly, the Court has reviewed the R & R
for clear error only. In so doing, the Court adopts the
conclusion reached in the R & R that Defendants' Motion
for Summary Judgment should be granted, but the Court
does so in part on different grounds than those relied on
in the R & R.
First, the Court agrees with Magistrate Judge Smith that
Defendants' noncompliance with Local Civil Rule 56.2
should be overlooked because any prejudice resulting
from noncompliance was cured by the following: (i)
Magistrate Judge Smith advised Plaintiff of the nature of
summary judgment during a March 23, 2007 conference;
and (ii) Magistrate Judge Smith annexed a Rule 56.2
notice to the R & R, a document to which Plaintiff was
free to file objections. See Narumanchi v. Foster, No. 02CV-6553, 2006 WL 2844184, at *2 (E.D.N.Y. Sept. 29,
2006) (refusing to deny defendant's motion for summary
judgment based on failure of defendant to comply with
Local Civil Rule 56.2 because “[a]ny prejudice to pro se
plaintiffs [was] cured” by court's actions).
As expressed in the R & R, though Plaintiff did not
file any opposition to Defendants' Motion for Summary
Judgment, Defendants were still required to meet their
burden of demonstrating to the Court that “no material
issue of fact remains for trial.” See Amaker v. Foley,
274 F.3d 677, 681 (2d Cir.2001). The Court finds no
clear error in Magistrate Judge Smith's determination that
Defendants satisfied this burden.
With respect to Defendants Pappas and Cola, the Court
finds that Plaintiff has failed to offer any evidence
demonstrating that they were personally involved in
the alleged violation of Plaintiff's constitutional rights.
The “ ‘personal involvement of defendants in alleged
constitutional deprivations is a prerequisite to an award
of damages under § 1983.’ “ Back v. Hastings on Hudson
Union Free Sch. Dist., 365 F.3d 107, 122 (2d Cir.2004)
(quoting McKinnon v. Patterson, 568 F.2d 930, 934
(2d Cir.1977)). For purposes of Section 1983 liability,
personal involvement can be established by evidence that:
‘(1) the defendant participated
directly in the alleged constitutional
violation, (2) the defendant, after
being informed of the violation
through a report or appeal,
failed to remedy the wrong,
(3) the defendant created a
policy or custom under which
unconstitutional practices occurred,
or allowed the continuance of such a
policy or custom, (4) the defendant
was grossly negligent in supervising
subordinates who committed the
wrongful acts, or (5) the defendant
exhibited deliberate indifference ...
by failing to act on information
indicating that unconstitutional acts
were occurring.’
Id. at 127 (quoting Colon v. Coughlin, 58 F.3d 865,
873 (2d Cir.1995)); accord Hayut v. State Univ. of N.Y.,
352 F.3d 733, 753 (2d Cir.2003); Schiller v. City of
New York, No. 04-CV-7922, 2008 WL 200021, at *4
(S.D.N.Y. Jan. 23, 2008); Fair v.. Weiburg, No. 02CV-9218, 2006 WL 2801999, at *4 (S.D.N.Y. Sept. 28,
2006). Further, a Section 1983 plaintiff must “allege a
tangible connection between the acts of the defendant and
the injuries suffered.” Bass v. Jackson, 790 F.2d 260, 263
(2d Cir.1986); see also Fair, 2006 WL 2801999, at *4 (citing
Bass ).
*3 In support of their Motion for Summary Judgment,
Defendants submitted evidence that Defendant Pappas
did not directly participate in the arrest of Plaintiff,
but he instead arrested Plaintiff's accomplice. For
example, on April 8, 2004, at a hearing before the
Honorable Richard A. Molea of the Westchester County
Court, Defendant Pappas testified that he remained
with Plaintiff's accomplice while other officers arrested
Plaintiff. (Defs.' Affirmation in Supp., Ex. J, 50-51.)
Further, in response to interrogatories served on him
by Plaintiff, Defendant Pappas stated that he “did not
observe what transpired during the course of plaintiff's
arrest.” (Id., Ex. L.) Finally, Defendants offer a police
report indicating that “Pappas was detaining [Plaintiff's
accomplice] in the garage area, as additional units arrived
and placed [Plaintiff] into custody.” (Id., Ex. C.)
Plaintiff has failed to offer any evidence refuting
Defendant Pappas' version of events. In other words,
Plaintiff has offered no evidence demonstrating that
Defendant Pappas was actually one of the officers who
arrested him and allegedly pinned him to the ground
while Kelley assaulted him. In fact, during his deposition
testimony, Plaintiff admitted that he was not sure whether
Defendant Pappas was one of the police officers who
© 2017 Thomson Reuters. No claim to original U.S. Government Works.
2
Austin v. Pappas, Not Reported in F.Supp.2d (2008)
2008 WL 857528
arrested him, and that the reason Defendant Pappas was
named as a defendant in the present suit was because
Plaintiff had seen his name on Plaintiff's felony complaint.
(Id., Ex. G, 32-35.) As such, the unrefuted evidence
before the Court demonstrates that Defendant Pappas
was not one of the officers directly involved in Plaintiff's
arrest. Plaintiff therefore has failed to satisfy a prerequisite
to liability under Section 1983-namely that Defendant
Pappas had personal involvement in the alleged violation
of Plaintiff's constitutional rights. See Back, 365 F.3d
at 122. Thus, Plaintiff's claim against Defendant Pappas
must be dismissed.
Plaintiff alleged that Defendant Cola, Yonkers Police
Commissioner at the time of Plaintiff's 2003 arrest,
violated Plaintiff's constitutional rights by “authoriz[ing],
tolerat[ing], as institutionalized practices, and ratif[ying]
the misconduct [of Defendant Pappas and John Doe
Defendants].” (Compl.¶ 14.) More specifically, Plaintiff
charges Defendant Cola with failure to properly:
(1) discipline subordinate officers; (2) take adequate
precautions in hiring subordinate officers; (3) report
criminal acts by police personnel to the Westchester
County District Attorney; and (4) establish a system for
dealing with complaints about police misconduct. (Id.)
Plaintiff does not assert that Defendant Cola directly
participated in the violation of his constitutional rights;
instead, Plaintiff urges the Court to find Defendant Cola
liable under Section 1983 based on his role as supervisor
of Defendant Pappas and the John Doe Defendants.
“It is well settled, however, that the doctrine of respondeat
superior standing alone does not suffice to impose liability
for damages under section 1983 on a defendant acting
in a supervisory capacity.” See Hayut, 352 F.3d at
753 (citing Monell v. Dep't of Soc. Servs., 436 U.S.
658, 691 (1978)). Instead, it is necessary to establish a
supervisory official's personal involvement in the alleged
constitutional violation. See id.; Fair, 2006 WL 2801999,
at *4.
*4 Plaintiff has failed to provide the Court with any
evidence from which a reasonable jury could conclude that
Defendant Cola was personally involved in the alleged
violation of Plaintiff's constitutional rights. Plaintiff
has offered no evidence demonstrating that Defendant
Cola was aware of and failed to remedy constitutional
violations by subordinate officers, or that he acted in
a grossly negligent or deliberately indifferent manner
in supervising or training subordinate officers. There
is also no evidence in the record to support a theory
that Defendant Cola created a policy or custom that
fostered and led to the alleged violation of Plaintiff's
rights. See Hayut, 352 F.3d at 754 (finding as fatal to
plaintiff's Section 1983 claim the fact that there existed
“no evidence that, after becoming aware of the alleged
harassment, any of the [supervisory officials] failed to
respond or remedy the situation, that any of these
[supervisory officials] created or allowed a policy to
continue under which alleged harassment could occur, or
that they were grossly negligent in monitoring [the alleged
harasser's] conduct”); Harris v. City of New York, No.
01-CV-6927, 2003 WL 554745, at *6 (S.D.N.Y. Feb. 26,
2003) (“[P]laintiff has put forth no evidence pointing to
defendant ['s] personal involvement in plaintiff's alleged
deprivation of rights .... Plaintiff's conclusory allegations
regarding defendant['s] alleged supervisory role, without
more, cannot withstand summary judgment.”). Further,
nothing in the record, even drawing all inferences in
Plaintiff's favor, suggests any tangible connection between
Defendant Cola's training or supervision of subordinate
officers and the alleged violation of Plaintiff's rights.
In fact, the record contains no evidence with regard to
Defendant Cola whatsoever. Without such evidence, no
reasonable jury could conclude that Defendant Cola had
personal involvement in the alleged violation of Plaintiff's
constitutional rights, which means that Plaintiff has failed
to satisfy a prerequisite to Section 1983 liability, and
therefore that Defendant Cola is entitled to summary
judgment in his favor. See Davis v. Kelly, 160 F.3d 917,
921 (2d Cir.1998) (“After an opportunity for discovery,
undisputed allegations that [a] supervisor lacked personal
involvement will ultimately suffice to dismiss that official
from the case.”).
In sum, the Court finds that Plaintiff has failed to
establish the personal involvement of Defendants Pappas
and Cola in the alleged violation of his rights. For
reasons set forth more fully in the R & R, the Court
also dismisses the Complaint as to the John Doe
Defendants because Plaintiff's time limit to amend the
Complaint in order to substitute in named defendants
has lapsed. Therefore, the Court finds it unnecessary to
reach the question of whether Plaintiff has adequately
established an underlying violation of his constitutional
rights. Finally, having determined that no cognizable
federal claims exist, the Court will follow Magistrate
© 2017 Thomson Reuters. No claim to original U.S. Government Works.
3
Austin v. Pappas, Not Reported in F.Supp.2d (2008)
2008 WL 857528
Judge Smith's recommendation in declining to exercise
jurisdiction over the state law claims.
*5 Accordingly, it is hereby:
The Clerk of Court is respectfully directed to
enter judgment in favor of Defendants, to terminate
Defendant's Motion (Dkt. No. 28), and to close this case.
ORDERED that the Report and Recommendation dated
August 2, 2007, is ADOPTED on the grounds set forth in
this Order; and it is further
SO ORDERED.
ORDERED that Defendants' Motion for Summary
Judgment pursuant to Federal Rule of Civil Procedure 56
is GRANTED.
Not Reported in F.Supp.2d, 2008 WL 857528
End of Document
All Citations
© 2017 Thomson Reuters. No claim to original U.S. Government Works.
© 2017 Thomson Reuters. No claim to original U.S. Government Works.
4
Castillo v. Commissioner New York State Dept. of..., Not Reported in...
2008 WL 4501881
2008 WL 4501881
Only the Westlaw citation is currently available.
United States District Court,
W.D. New York.
Robert CASTILLO, Plaintiff,
v.
COMMISSIONER NEW YORK STATE
DEPARTMENT OF CORRECTIONAL
SERVICES, Warden Wende Correctional Facility,
Medical Director Wende C.F., Defendants.
No. 06-CV-858A.
|
Sept. 30, 2008.
West KeySummary
1
Civil Rights
Criminal Law Enforcement; Prisons
An inmate's § 1983 claim, which alleged that
prison officials did not provide the inmate
with immediate medical attention after a
cleaning product was spilled on his head,
was dismissed because the inmate failed to
allege personal involvement by any of the
defendants. Indeed, it was well settled that
§ 1983 did not permit liability for monetary
damages on the basis of respondeat superior.
42 U.S.C.A. § 1983.
Cases that cite this headnote
Attorneys and Law Firms
Lawrence E. Wright, Brooklyn, NY, for Plaintiff.
Darren Longo, Office of the New York State Attorney
General, Buffalo, NY, for Defendants.
DECISION AND ORDER
RICHARD J. ARCARA, Chief Judge.
INTRODUCTION
*1 The plaintiff, an inmate at Wende Correctional
Facility, filed this action in the Eastern District of
New York seeking damages under 42 U.S.C. § 1983
arising from a claim of deliberate indifference to his
medical condition in violation of his “Fifth, Eighth, Ninth
and Fourteenth Amendment rights.” 1 The action was
subsequently transferred to this District, where venue was
proper.
1
Although the complaint alleges violations of
plaintiff's Fifth, Ninth and Fourteenth Amendment
rights, it is clear that the gravamen of his claim
is an Eighth Amendment violation of deliberate
indifference to a serious medical condition.
Counsel for the defendants brought a motion to dismiss
the complaint arguing that: (1) the complaint fails to
properly “name” the defendants; and (2) even if named
properly, the complaint fails to allege that any of
the defendants were personally involved in the alleged
constitutional deprivation.
Plaintiff opposed the motion to dismiss. The matter was
deemed submitted without oral argument. For the reasons
stated, the Court grants the defendants' motion to dismiss.
BACKGROUND
Plaintiff asserts that, on or about December 22, 2004,
while housed as an inmate at Wende Correctional Facility,
he was directed by the mess hall duty officer to clean
the mess hall sink. The mess hall duty officer provided
plaintiff with “Lime-A-Way LP (a multipurpose lime
scale remover) in a spray bottle, gloves and a paper
hat.” Compl. at ¶ 6. While preforming the assigned task,
the Lime-A-Way dripped on plaintiff's head, causing an
“immediate burning sensation.” Plaintiff rinsed his head
but was unable to alleviate the burning sensation. He
advised Correction Officer Branch about the situation but
was not provided with immediate medical attention.
Plaintiff alleges that he again requested medical attention
and was not afforded a “sick call” treatment but his name
was placed on a list to be seen by a medical doctor.
Plaintiff saw a doctor on January 25, 2005, who referred
© 2017 Thomson Reuters. No claim to original U.S. Government Works.
1
Castillo v. Commissioner New York State Dept. of..., Not Reported in...
2008 WL 4501881
him to a dermatologist. On February 18, 2005, plaintiff
saw the dermatologist and was provided with a topical
ointment.
Plaintiff alleges that the defendants violated his
constitutional rights when they failed to provide him with
immediate medical attention.
DISCUSSION
Defendants have moved to dismiss the complaint
pursuant to Fed.R.Civ.P. 12(b)(6). In evaluating a 12(b)
(6) motion, the Court must accept the factual allegations
in the complaint as true. See Erickson v. Pardus, --U.S. ----, ----, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081
(2007) (per curiam). The Supreme Court recently clarified
standard applicable in evaluating a motion to dismiss
under Rule 12(b)(6). See Bell Atlantic Corporation v.
Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d
929 (2007). The Court replaced the prior standard that
“a complaint should not be dismissed for failure to
state a claim unless it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim
which would entitle him to relief,” see Conley v. Gibson,
355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957),
with the requirement that the complaint allege “only
enough facts to state a claim to relief that is plausible
on its face.” Twombly, 127 S.Ct. at 1974. However, the
Supreme Court reaffirmed the principle that the complaint
must recite factual allegations sufficient to raise the
right to relief about the speculative level, and conclusory
allegations or formulaic recitation of the elements will
not do. See Twombly, 127 S.Ct. at 1964-65 (“While a
complaint attacked by a Rule 12(b)(6) motion to dismiss
does not need detailed factual allegations, a plaintiff's
obligation to provide the grounds of his entitlement to
relief requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action
will not do.”) (internal quotations and citations omitted).
*2 As stated, the defendants move to dismiss the
complaint on two grounds. First, they claim that the
complaint fails to comply with the requirements of
Fed.R.Civ.P. 10(a) (requiring a complaint to “name” a
party) because it fails to refer to any of the defendants
by name and instead refers to each defendant only by his
official title. Second, the defendants assert that dismissal
is proper because the complaint fails to allege personal
involvement by any of the defendants.
Putting aside the issue of whether the defendants are
properly named under Rule 10(a), the Court finds that
complaint must be dismissed because it fails to allege
personal involvement by any of the defendants. It is well
settled that § 1983 does not permit liability for monetary
damages on the basis of respondeat superior. See Monell
v. Department of Soc. Serv., 436 U.S. 658, 694, n. 58, 98
S.Ct. 2018, 56 L.Ed.2d 611 (1978); Colon v. Coughlin, 58
F.3d 865, 873 (2d Cir.1995); Wright v. Smith, 21 F.3d
496, 501 (2d Cir.1994). To be liable for monetary damages
under § 1983, a defendant must have had some personal
involvement in the alleged constitutional deprivations. See
Colon, 58 F.3d at 873; Wright, 21 F.3d at 501. Personal
involvement by a supervisory defendant may be shown
by evidence that: (1) the defendant participated directly
in the alleged constitutional violation, (2) the defendant,
after being informed of the violation through a report
or appeal, failed to remedy the wrong, (3) the defendant
created a policy or custom under which unconstitutional
practices occurred, or allowed the continuance of such a
policy or custom, (4) the defendant was grossly negligent
in supervising subordinates who committed the wrongful
acts, or (5) the defendant exhibited deliberate indifference
to the right of inmates by failing to act on information
indicating that unconstitutional acts were occurring.”
Colon, 58 F.3d at 873.
Even accepting the allegations in plaintiff's complaint as
true, plaintiff has not alleged any facts suggesting that
the defendants in this case had personal knowledge of
the alleged deprivation of medical care. Plaintiff does not
claim that any of the defendants participated in the alleged
deprivation or had any personal knowledge that medical
care was being denied. Although plaintiff does allege
that the defendants have “have adopted polices, practices
and procedures which Defendants knew or should have
reasonably known would be ineffective in delivering
medical treatment and care,” see Compl. at ¶ 15, such
conclusory allegations are insufficient to sustain a § 1983
claim. See Covington v. Coughlin, No. 93 Civ. 8372(JSM),
1994 WL 163692 at *2-3, (S.D.N.Y. Apr.28, 1994) (finding
that a “vague reference” to alleged unconstitutional policy
is insufficient to establish personal involvement); see also
Funches v. Reish, 97 Civ. 7611(LBS), 1998 WL 695904
(S.D.N.Y. Oct. 5, 1998) (dismissing deliberate indifference
to medical care claim against Warden of prison facility
© 2017 Thomson Reuters. No claim to original U.S. Government Works.
2
Castillo v. Commissioner New York State Dept. of..., Not Reported in...
2008 WL 4501881
based upon conclusory allegation that Warden created
“custom” of denying medical care). Plaintiff does not
specify the particular policy or custom that each defendant
created, or allege how that policy or custom resulted in the
alleged deprivation. Plaintiff's theory of liability appears
to be grounded simply upon the fact that the defendants
were in charge of the prison. However, as stated, § 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 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.”). Absent any indication that the
defendants played any role in the alleged constitutional
deprivations, plaintiff's deliberate indifference claim must
be dismissed.
End of Document
CONCLUSION
*3 For the reasons stated, the defendants' motion to
dismiss is granted and the complaint is dismissed in its
entirety. The Clerk of the Court is directed to take all steps
necessary to close the case. 2
2
Although the Court grants pro se incarcerated
inmates with an opportunity to file an amended
complaint, that accommodation is unnecessary
where, as here, the plaintiff is represented by counsel.
SO ORDERED.
All Citations
Not Reported in F.Supp.2d, 2008 WL 4501881
© 2017 Thomson Reuters. No claim to original U.S. Government Works.
© 2017 Thomson Reuters. No claim to original U.S. Government Works.
3
Cash v. Bernstein, Not Reported in F.Supp.2d (2010)
2010 WL 5185047
2010 WL 5185047
Only the Westlaw citation is currently available.
United States District Court,
S.D. New York.
David J. CASH, Plaintiff,
v.
BERNSTEIN, MD, Defendant.
No. 09 Civ.1922(BSJ)(HBP).
|
Oct. 26, 2010.
REPORT AND RECOMMENDATION 1
1
At the time the action was originally filed,
the Honorable Leonard B. Sand, United States
District Judge, granted plaintiff's application for in
forma pauperis status based on plaintiff's ex parte
submission (Docket Item 1). Although the present
application seeking to revoke plaintiff's in forma
pauperis status is non-dispositive, I address it by way
of a report and recommendation to eliminate any
appearance of a conflict between the decision of a
district judge and that of a magistrate judge.
PITMAN, United States Magistrate Judge.
*1 TO THE HONORABLE BARBARA S. JONES,
United States District Judge,
I. Introduction
By notice of motion dated March 4, 2010 (Docket Item
11), defendant moves pursuant to 28 U.S.C. § 1915(g)
to revoke plaintiff's in forma pauperis (“IFP”) status on
the ground that plaintiff has previously had at least three
Section 1983 actions dismissed as frivolous, malicious or
failing to state a claim upon which relief could be granted,
and has not shown that he is in imminent danger of serious
physical injury. Defendant further seeks an order directing
that the action be dismissed unless plaintiff pays the full
filing fee within thirty (30) days. For the reasons set forth
below, I respectfully recommend that defendant's motion
be granted.
II. Facts
Plaintiff, a sentenced inmate in the custody of the
New York State Department of Correctional Services,
commenced this action on or about January 12, 2009
by submitting his complaint to the Court's Pro Se
office. Plaintiff alleges, in pertinent part, that he has
“a non-healing ulcer that is gane green [sic ]” and that
defendant Bernstein “did not want to treat the ulcer
right” (Complaint, dated March 3, 3009 (Docket Item 2)
(“Compl.”), at 3).
The action was originally commenced against two
defendants—Dr. Bernstein and Dr. Finkelstein. The
action was dismissed as to Dr. Finkelstein because
the complaint contained no allegations whatsoever
concerning Dr. Finkelstein (Order dated February 18,
2010 (Docket Item 9)).
On March 4, 2010, the sole remaining defendant—Dr.
Bernstein—filed the current motion. Plaintiff failed to
submit a response. Accordingly, on August 20, 2010,
I issued an Order advising plaintiff that if he wished
to oppose the motion, he must submit his opposition
by September 15, 2010 and that after that date I
would consider the motion fully submitted and ripe for
decision (Order dated August 20, 2010 (Docket Item
15)). The only submission plaintiff has made in response
to my Order is a multi-part form issued by the New
York State Department of Correctional Services entitled
“Disbursement or Refund Request.” 2 By this form,
plaintiff appears to request that the New York State
Department of Correctional Services pay the filing fee for
this action. The form is marked “Denied.”
2
Plaintiff sent this form directly to my chambers, and
it has not been docketed by the Clerk of the Court.
The form will be docketed at the time this Report and
Recommendation is issued.
III. Analysis
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. Although
an indigent, incarcerated individual need not prepay the
filing fee at the time 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.
28 U.S.C. § 1915(b); Harris v. City of New York, 607
F.3d 18, 21 (2d Cir.2010). To prevent abuse of the judicial
system by inmates, paragraph (g) of this provision denies
© 2017 Thomson Reuters. No claim to original U.S. Government Works.
1
Cash v. Bernstein, Not Reported in F.Supp.2d (2010)
2010 WL 5185047
incarcerated individuals the right to proceed without
prepayment of the filing fee if they have repeatedly filed
meritless actions, unless such an individual shows that he
or she is in imminent danger of serious physical injury.
See Ortiz v. McBride, 380 F.3d 649, 658 (2d Cir.2004)
(“[T]he purpose of the PLRA ... was plainly to curtail
what Congress perceived to be inmate abuses of the
judicial process.”); Nicholas v. Tucker, 114 F.3d 17, 19 (2d
Cir.1997). Specifically, paragraph (g) provides:
*2 In no event shall a prisoner
bring a civil action or appeal
a judgment in a civil action or
proceeding under this section if
the prisoner has, on 3 or more
prior occasions, while incarcerated
or detained in any facility, brought
an action or appeal in a court
of the United States that was
dismissed on the grounds that it is
frivolous, malicious, or fails to state
a claim upon which relief may be
granted, unless the prisoner is under
imminent danger of serious physical
injury.
28 U.S.C. § 1915(g).
If an inmate plaintiff seeks to avoid prepayment of
the filing fee by alleging imminent danger of serious
physical injury, there must be a nexus between the serious
physical injury asserted and the claims alleged. Pettus v.
Morgenthau, 554 F.3d 293, 298 (2d Cir.2009).
Section 1915(g) clearly prevents plaintiff from proceeding
in this action without prepayment of the filing fee. The
memorandum submitted by defendant establishes that
plaintiff has had his IFP status revoked on at least four
prior occasions as a result of his repeatedly filing meritless
actions.
• In 2005, plaintiff commenced an action in the United
States District Court for the Northern District of
New York seeking to have his infected leg amputated.
Nelson 3 v. Lee, No. 9:05–CV–1096 (NAM)(DEP),
2007 WL 4333776 (N.D.N.Y. Dec. 5, 2007). In that
matter, the Honorable Norman A. Mordue, Chief
United States District Judge, accepted and adopted
the Report and Recommendation of the Honorable
David E. Peebles, United States Magistrate Judge,
that plaintiff had brought three or more prior actions
that had been dismissed for failure to state a claim
and that plaintiff's IFP status should, therefore, be
revoked. 2007 WL 4333776 at *1–*2.
3
It appears that plaintiff uses the names David J. Cash
and Dennis Nelson interchangeably. In his complaint
in this matter, plaintiff states that the Departmental
Identification Number, or DIN, assigned to him by
the New York State Department of Correctional
Services (“DOCS”) is 94–B–0694 (Compl. at 7).
DOCS inmate account records submitted by plaintiff
in connection with his application for IFP status
indicate that DIN 94–B–0694 is assigned to Dennis
Nelson. In addition, the DOCS form described in
footnote two bears the docket number of this action,
but is signed in the name of Dennis Nelson and
was sent in an envelope identifying the sender as
Dennis Nelson. A subsequent action has been filed
in this Court in which the plaintiff identifies himself
as Dennis Nelson but lists his DIN as 94–B–0694,
the same DIN used by plaintiff here. Finally, plaintiff
has submitted nothing to controvert the assertion
in defendant's papers that David Cash and Dennis
Nelson are the same person. In light of all these facts,
I conclude that David Cash and Dennis Nelson are
both names used by plaintiff.
• In Nelson v. Nesmith, No. 9:06–CV–1177 (TJM)
(DEP), 2008 WL 3836387 (N.D.N.Y. Aug. 13,
2008), plaintiff again filed an action concerning
the medical care he was receiving for his left
leg. The Honorable Thomas J. McAvoy, United
States District Judge, accepted the Report and
Recommendation of Magistrate Judge Peebles, and
revoked plaintiff's IFP status and dismissed the
action on the ground that plaintiff had previously
commenced at least three actions that had been
dismissed on the merits. 2008 WL 3836387 at *1, *7.
• In Nelson v. Spitzer, No. 9:07–CV–1241 (TJM)
(RFT), 2008 WL 268215 (N.D.N.Y. Jan. 29,
2008), Judge McAvoy again revoked plaintiff's
IFP status on the ground that plaintiff
had commenced three or more actions that
constituted “strikes” under Section 1915(g) and
had not shown an imminent threat of serious
physical injury. 2008 WL 268215 at *1–*2.
• Finally, in Nelson v. Chang, No. 08–CV–1261
(KAM)(LB), 2009 WL 367576 (E.D.N.Y. Feb.
© 2017 Thomson Reuters. No claim to original U.S. Government Works.
2
Cash v. Bernstein, Not Reported in F.Supp.2d (2010)
2010 WL 5185047
10, 2009), the Honorable Kiyo A. Matsumoto,
United States District Judge, also found, based
on the cases discussed above, that plaintiff
had exhausted the three strikes permitted by
Section 1915(g) and could not proceed IFP in
the absence of a demonstration of an imminent
threat of serious physical injury. 2009 WL
367576 at *2–*3.
*3 As defendant candidly admits, there is one case
in which plaintiff's leg infection was found to support
a finding of an imminent threat of serious physical
injury sufficient to come within the exception to Section
1915(g). Nelson v. Scoggy, No. 9:06–CV–1146 (NAM)
(DRH), 2008 WL 4401874 at *2 (N.D.N.Y. Sept. 24,
2008). Nevertheless, summary judgment was subsequently
granted for defendants in that case, and the complaint
was dismissed. Judge Mordue concluded that there was no
genuine issue of fact that plaintiff had received adequate
medical care for his leg wound and that the failure of
the leg to heal was the result of plaintiff's own acts
of self-mutilation and interference with the treatment
provided. Nelson v. Scoggy, No. 9:06–CV–1146 (NAM)
(DRH), 2009 WL 5216955 at *3–*4 (N.D.N.Y. Dec. 30,
2009). 4
4
Although the form complaint utilized by plaintiff
expressly asks about prior actions involving the same
facts, plaintiff disclosed only the Scoggy action and
expressly denied the existence of any other actions
relating to his imprisonment (Compl. at 6).
In light of the foregoing, there can be no reasonable
dispute that plaintiff has exceeded the three “strikes”
allowed by Section 1915(g) and that he cannot, therefore,
proceed here without prepaying the filing fee unless he
demonstrates an imminent threat of serious physical
injury. Plaintiff has declined to attempt to make this
showing in response to defendant's motion, and the only
suggestion in the record of serious physical injury is the
bare statement in the complaint that plaintiff “need[s] to
go back to a wound speci [a]list before the gane green
[sic ] kills [him]” (Compl. at 5). “However, unsupported,
vague, self-serving, conclusory speculation is not sufficient
to show that Plaintiff is, in fact, in imminent danger of
serious physical harm.” Merriweather v. Reynolds, 586
F.Supp.2d 548, 552 (D.S.C.2008), citing Ciarpaglini v.
Saini, 352 F.3d 328, 330 (7th Cir.2003) and White v.
Colorado, 157 F.3d 1226, 1231–32 (10th Cir.1998); see
also Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir.2003)
(imminent danger exception to Section 1915(g) requires
“specific fact allegations of ongoing serious physical
injury, or of a pattern of misconduct evidencing the
likelihood of imminent serious physical injury”). Given
the plaintiff's history, as set forth in the cases described
above, I conclude that this vague statement is insufficient
to support a finding that plaintiff is in imminent danger of
serious physical injury. 5
5
Plaintiff has sent me several letters describing his
wound and its symptoms in detail, and I have
no doubt that the wound is serious. However, in
granting summary judgment dismissing an action last
year based on the same allegations, Judge Mordue
of the Northern District found that there was no
genuine issue of fact that plaintiff's own conduct was
responsible for the ineffectiveness of the treatment he
was provided:
Furthermore, to the extent that Nelson's medical
treatment was delayed, much of the delay
was due to his own refusal to cooperate with
medical staff and his self-mutilations. Nelson's
actions to thwart the medical treatment of his
wound cannot be construed as interference or
indifference by anyone else.... [T]he medical
treatment Nelson received complied with
constitutional guarantees as it was appropriate,
timely, and delayed only by Nelson's own
actions.
Nelson v. Scoggy, supra, 2009 WL 5216955 at *4.
Given plaintiff's total failure to respond to the
pending motion and his failure to even deny that
he is actively thwarting treatment of his wound, it
would be sheer speculation for me to conclude that
he is in imminent danger of a serious injury as a
result of defendant's conduct.
IV. Conclusion
Accordingly, for all the foregoing reasons, I find that
plaintiff has had three or more prior actions dismissed as
being frivolous, malicious or failing to state a claim and
that plaintiff's in forma pauperis status should, therfore,
be revoked. If your Honor accepts this recommendation,
I further recommend that the action be dismissed unless
plaintiff pays the filing fee in full within thirty (30) days of
your Honor's final resolution of this motion.
V. OBJECTIONS
Pursuant to 28 U.S.C. § 636(b)(1)(C) and Rule 72(b) of
the Federal Rules of Civil Procedure, the parties shall
have fourteen (14) days from receipt of this Report
© 2017 Thomson Reuters. No claim to original U.S. Government Works.
3
Cash v. Bernstein, Not Reported in F.Supp.2d (2010)
2010 WL 5185047
to file written objections. See also Fed.R.Civ.P. 6(a).
Such objections (and responses thereto) shall be filed
with the Clerk of the Court, with courtesy copies
delivered to the Chambers of the Honorable Barbara
S. Jones, United States District Judge, 500 Pearl Street,
Room 1920, and to the Chambers of the undersigned,
500 Pearl Street, Room 750, New York, New York
10007. Any requests for an extension of time for filing
objections must be directed to Judge Jones. FAILURE
TO OBJECT WITHIN FOURTEEN (14) DAYS WILL
RESULT IN A WAIVER OF OBJECTIONS AND
WILL PRECLUDE APPELLATE REVIEW. Thomas
End of Document
v. Arn, 474 U.S. 140, 155 (1985); United States v. Male
Juvenile, 121 F.3d 34, 38 (2d Cir.1997); IUE AFL–
CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054
(2d Cir.1993); Frank v. Johnson, 968 F.2d 298, 300 (2d
Cir.1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 57–59
(2d Cir.1988); McCarthy v. Manson, 714 F.2d 234, 237–38
(2d Cir.1983).
All Citations
Not Reported in F.Supp.2d, 2010 WL 5185047
© 2017 Thomson Reuters. No claim to original U.S. Government Works.
© 2017 Thomson Reuters. No claim to original U.S. Government Works.
4
Pucci v. Brown, 423 Fed.Appx. 77 (2011)
423 Fed.Appx. 77
This case was not selected for
publication in the Federal Reporter.
United States Court of Appeals,
Second Circuit.
Alfred C. PUCCI, Plaintif–Appellant,
v.
Barbara Berish BROWN, Defendant–Appellee.
No. 10–2448–cv.
|
May 31, 2011.
UPON DUE CONSIDERATION, IT IS HEREBY
ORDERED, ADJUDGED, AND DECREED that the
judgment of the district court be AFFIRMED.
Attorneys and Law Firms
Alfred C. Pucci, pro se, Montrose, NY, for Plaintiff–
Appellant.
No appearance for Defendant–Appellee.
Present: ROBERT D. SACK, DEBRA ANN
LIVINGSTON, GERARD E. LYNCH, Circuit Judges.
SUMMARY ORDER
**1 Plaintiff–Appellant Alfred C. Pucci (“Pucci”), pro
se, appeals from a judgment of the United States District
Court for the Southern District of New York (Preska,
C.J.), entered May 5, 2010, sua sponte dismissing his
complaint for lack of subject matter jurisdiction and, in
the alternative, for failure to state a claim upon which
relief may be granted. We assume the parties' familiarity
with the underlying facts, the procedural history of the
case, and the issues on appeal.
We review a district court's dismissal of a complaint for
lack of subject matter jurisdiction de novo. Celestine v.
Mount Vernon Neighborhood Health Ctr., 403 F.3d 76,
79–80 (2d Cir.2005). “It is a fundamental precept that
End of Document
federal courts are courts of limited jurisdiction and lack
the power to disregard such limits as have been imposed by
the Constitution or Congress.” Durant, Nichols, Houston,
Hodgson & Cortese–Costa, P.C. v. Dupont, 565 F.3d 56, 62
(2d Cir.2009) (internal quotation marks omitted). Here,
Pucci's complaint suggests no basis for federal question
jurisdiction, as he is not suing under the Constitution or
any federal law. See 28 U.S.C. § 1331. Nor has Pucci
pleaded any basis for a federal court to exercise diversity
jurisdiction in this matter because, *78 although he and
the defendant are alleged to be diverse in citizenship,
Pucci has failed to plead any amount in controversy, let
alone an amount in excess of $75,000. See, e.g., Lupo v.
Human Affairs Int'l, Inc., 28 F.3d 269, 273 (2d Cir.1994)
(“[T]he party asserting diversity jurisdiction in federal
court has the burden of establishing the existence of the
jurisdictional amount in controversy.”); Tongkook Am.,
Inc. v. Shipton Sportswear Co., 14 F.3d 781, 784 (2d
Cir.1994) (“A party invoking the jurisdiction of the federal
court has the burden of proving that it appears to a
‘reasonable probability’ that the claim is in excess of the
statutory jurisdictional amount.”).
Finally, we decline to remand to the district court to
permit the pro se plaintiff to replead. On independent
review of the record, “we do not find that the complaint
liberally read suggests that the plaintiff has a claim that
[ ]he has inadequately or inartfully pleaded and that [ ]he
should therefore be given a chance to reframe.” Cuoco
v. Moritsugu, 222 F.3d 99, 112 (2d Cir.2000) (internal
quotation marks and citation omitted). While Pucci
argues that he “entered into an implied and oral contract”
with the Defendant–Appellee for certain services, the
documents he himself has provided refute this assertion.
The record thus leaves no possibility that Plaintiff could
assert a viable claim against this defendant.
We have considered all of Plaintiff–Appellant's remaining
arguments and find them to be without merit. For the
foregoing reasons, the judgment of the district court is
hereby AFFIRMED.
All Citations
423 Fed.Appx. 77, 2011 WL 2133615
© 2017 Thomson Reuters. No claim to original U.S. Government Works.
© 2017 Thomson Reuters. No claim to original U.S. Government Works.
1
Scanlon v. Vermont, 423 Fed.Appx. 78 (2011)
423 Fed.Appx. 78
This case was not selected for
publication in the Federal Reporter.
United States Court of Appeals,
Second Circuit.
John J. SCANLON, Jr., Plaintiff–Appellant,
v.
State of VERMONT, et al., Defendant–Appellee.
No. 10–4766–cv.
|
May 31, 2011.
UPON DUE CONSIDERATION, IT IS HEREBY
ORDERED, ADJUDGED, AND DECREED that the
judgment of the district court be AFFIRMED.
Attorneys and Law Firms
John J. Scanlon, Jr., Port Charlotte, FL, pro se.
No appearance for Defendant–Appellee.
PRESENT: ROBERT D. SACK, DEBRA ANN
LIVINGSTON and GERARD E. LYNCH, Circuit
Judges.
SUMMARY ORDER
**1 Plaintiff–Appellant John J. Scanlon, Jr. (“Scanlon”),
pro se, appeals from an Opinion and Order of the
End of Document
United States District *79 Court for the District of
Vermont (Sessions, J.), entered November 10, 2010, sua
sponte dismissing his complaint as frivolous pursuant
to 28 U.S.C. § 1915(e)(2)(B)(i). We assume the parties'
familiarity with the underlying facts, the procedural
history of the case, and the issues on appeal.
We review a district court's sua sponte dismissal of a
complaint under § 1915(e) de novo, bearing in mind that,
under § 1915(e)(2), a court must dismiss an action “at
any time” if it determines that the action is frivolous.
Giano v. Goord, 250 F.3d 146, 149–50 (2d Cir.2001). An
action is frivolous if it lacks an arguable basis in law or
fact—i.e., where it is “based on an indisputably meritless
legal theory” or presents “factual contentions [which] are
clearly baseless.” Neitzke v. Williams, 490 U.S. 319, 327,
109 S.Ct. 1827, 104 L.Ed.2d 338 (1989).
Having conducted an independent and de novo review of
the record in light of these principles, we affirm the district
court's judgment for substantially the same reasons stated
by the district court in its thorough and well-reasoned
decision. Indeed, Scanlon's brief, constituting several
pages of the complaint filed in the district court below,
effectively fails to respond to the district court's decision,
as it contains no reference to that decision or identifiable
argument. Accordingly, the judgment of the district court
is hereby AFFIRMED.
All Citations
423 Fed.Appx. 78, 2011 WL 2133622
© 2017 Thomson Reuters. No claim to original U.S. Government Works.
© 2017 Thomson Reuters. No claim to original U.S. Government Works.
1
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?