Dowling v. Annucci et al

Filing 20

DECISION AND ORDER: ORDERED that plaintiff's amended complaint (Dkt. No. 11 ) is accepted for filing, and is considered the operative pleading. ORDERED that plaintiff's First Amendment retaliation claim against defendants Fredrickson , Schleicher, and Barkman SURVIVES sua sponte review and requires a response. ORDERED that a response to the amended complaint be filed by defendants Fredrickson, Schleicher, and Barkman, or their counsel, within thirty (30) days of the filing date of this Decision and Order. Signed by U.S. District Judge Mae A. D'Agostino on 1/2/18. (served on plaintiff by regular mail)(alh, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

JAVON DOWLING,
Plaintiff,
v.

9:17-CV-0647
(MAD/DJS)

D. FREDRICKSON, et al.,
Defendants.

APPEARANCES:
JAVON DOWLING
Plaintiff, pro se
261 Malcolm X Blvd. Apt. 2A
Brooklyn, NY 11233
HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
Attorney for Defendants
615 Erie Boulevard West
Suite 102
Syracuse, NY 13204-2455

DAVID A. ROSENBERG, ESQ.
Ass't Attorney General

MAE A. D'AGOSTINO
United States District Judge
DECISION and ORDER
I.

BACKGROUND
The Clerk has sent to the Court an amended civil rights complaint submitted for filing

by pro se plaintiff Javon Dowling pursuant to 42 U.S.C. Section 1983 ("Section 1983").1 Dkt.

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After plaintiff submitted his complaint, he submitted his amended complaint, which the Court will review
in place of the original complaint. "It is well established that an amended complaint ordinarily supersedes the
original and renders it of no legal effect." Arce v. Walker, 139 F.3d 329, 332 n.4 (2d Cir. 1998) (quoting
International Controls Corp. v. Vesco, 556 F.2d 665, 668 (2d Cir. 1977)).

No. 11 ("Am. Compl."). For the reasons set forth below, the amended complaint is accepted
for filing and is the operative pleading and defendants Schleicher, Fredrickson, and Barkman,
who have already been served with the complaint, are directed to respond to the claims
against them that have survived sua sponte review.
II.

DISCUSSION
A.

Plaintiff's Original Complaint

Plaintiff commenced this action by filing a civil rights complaint pursuant to Section
1983 together with an application to proceed with the action in forma pauperis. Dkt. No. 1
("Compl."); Dkt. No. 2 ("IFP Application). By Decision and Order filed August 22, 2017,
plaintiff's IFP Application was granted. Dkt. No. 6 (the "August 2017 Order").
In his original complaint, plaintiff named as defendants Corrections Lieutenant D.
Fredrickson, Corrections Officer E. Schleicher, Corrections Sergeant Barkman, Hearing
Officer C. Bruccini, Greene Correctional Facility Superintendent Brandon Smith, Corrections
Sergeant "John Doe," Corrections Officer "Jane Doe," and Acting DOCCS Commissioner
Anthony J. Annucci. See generally Compl. Following review of the complaint pursuant to 28
U.S.C. § 1915(e)(2)(B), the complaint was construed to assert the following claims: (1) a First
Amendment retaliation claim against defendants Fredrickson, Barkman, and Schleicher; (2) a
Fourteenth Amendment due process claim against defendants Bruccini, Smith, Annucci,
"John Doe," and "Jane Doe"; and (3) a Fourteenth Amendment equal protection claim against
all of the defendants. See August 2017 Order at 5-6.
In the August 2017 Order, the Court found as follows. First, plaintiff's First
Amendment retaliation claim against defendants Fredrickson, Schleicher, and Barkman
survived sua sponte review and required a response. Id. at 7-9. Second, plaintiff's
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Fourteenth Amendment due process claim against defendants Bruccini, Smith, Annucci,
"John Doe," and "Jane Doe" was dismissed for failure to state a claim upon which relief may
be granted because plaintiff failed to plead the existence of a valid liberty interest with respect
to his 77-day SHU confinement. August 2017 Order at 9-11. Third, plaintiff's Fourteenth
Amendment equal protection claim against all of the defendants was dismissed for failure to
state a claim upon which relief may be granted because the allegation that defendants denied
him equal protection was entirely conclusory. Id. at 11-12.
In light of the special status plaintiff enjoys as a pro se civil rights litigant, the August
2017 Order advised plaintiff that, should he seek to pursue any of the claims that were
dismissed without prejudice, he could file an amended complaint, which would be subject to
review by the Court pursuant to 28 U.S.C. § 1915(e)(2)(B). August 2017 Order at 13 n.8.
B.

Review of the Amended Complaint

The legal standard governing the dismissal of a pleading pursuant to 28 U.S.C. §
1915(e)(2)(B) was discussed at length in the August 2017 Order and will not be restated in
this Decision and Order. See August 2017 Order at 2-3.
When plaintiff submitted his amended complaint, he amended the defendants by
withdrawing all claims against defendants Bruccini, Smith, Annucci, "John Doe," and "Jane
Doe." Am. Compl. at 1-2. The amended complaint also contains new allegations that relate
to his retaliation claim against defendants Fredrickson, Schleicher, and Barkman, but does
not make any new allegations that could plausibly suggest one or more additional claims
against these defendants. See generally, Am. Compl.
Thus, liberally construed, the amended complaint asserts only a retaliation claim
against defendants Fredrickson, Schleicher, and Barkman. See generally Am. Compl.
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Plaintiff requests an award of money damages. Id. at 9. For a complete statement of
plaintiff's claim, reference is made to the amended complaint.
C.

Sufficiency of the Amended Complaint

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." German v. Fed. Home Loan Mortg. Corp., 885 F. Supp. 537,
573 (S.D.N.Y. 1995) (citing Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (quoting
42 U.S.C. § 1983)) (footnote omitted); see also Myers v. Wollowitz, No. 6:95-CV-0272
(TJM/RWS), 1995 WL 236245, at *2 (N.D.N.Y. Apr. 10, 1995) (stating that "§ 1983 is the
vehicle by which individuals may seek redress for alleged violations of their constitutional
rights.") (citation omitted). "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) (citing City of Oklahoma City v. Tuttle, 471 U.S. 808,
816 (1985)).
Mindful of the Second Circuit's direction that a pro se plaintiff's pleadings must be
liberally construed, see e.g. Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir.
2008), a response from defendants Fredrickson, Schleicher, and Barkman to plaintiff's First
Amendment retaliation claim is required. In so ruling, the Court expresses no opinion as to
whether these claims can withstand a properly filed motion to dismiss or for summary
judgment.
III.

CONCLUSION
WHEREFORE, it is hereby

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ORDERED that plaintiff's amended complaint (Dkt. No. 11) is accepted for filing, and is
considered the operative pleading; and it is further
ORDERED that plaintiff's First Amendment retaliation claim against defendants
Fredrickson, Schleicher, and Barkman SURVIVES sua sponte review and requires a
response; and it is further
ORDERED that a response to the amended complaint be filed by defendants
Fredrickson, Schleicher, and Barkman, or their counsel, within thirty (30) days of the filing
date of this Decision and Order; and it is further
ORDERED that all pleadings, motions and other documents relating to this action must
bear the case number assigned to this action and be filed with the Clerk of the United States
District Court, Northern District of New York, 7th Floor, Federal Building, 100 S. Clinton St.,
Syracuse, New York 13261-7367. Plaintiff must comply with any requests by the Clerk's
Office for any documents that are necessary to maintain this action. All parties must comply
with Local Rule 7.1 of the Northern District of New York in filing motions; motions will be
decided on submitted papers, without oral argument, unless otherwise ordered by this Court.
Plaintiff is also required to promptly notify the Clerk's Office and all parties or their
counsel, in writing, of any change in his address; his failure to do so will result in the
dismissal of this action; and it is further
ORDERED that the Clerk serve a copy of this Decision and Order on the parties.
IT IS SO ORDERED.
Dated: January 2, 2018
Albany, NY

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