Gilmore v. Schenectady County Sheriffs et al
DECISION AND ORDER: ORDERED that 1. Plaintiff's IFP Application (Dkt. No. 10 ) is GRANTED; 2. The Clerk of the Court shall provide the superintendent of the facility designated by plaintiff as his current location with a copy of plaintiff& #039;s Inmate Authorization (Dkt. No. 11), 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 in installments, over time, pursuant to 28 U.S.C. § 1915; 3. The Clerk shall provide a copy of plaintiff's Inmate Authorization (Dkt. No. 11) to the Financial Deputy of the Clerk's Office; 4. Plaintiff's denial of access to the courts claims SURVIVE initial revi ew and require a response from the individual defendants; 5. Plaintiff's remaining claims are DISMISSED without prejudice for failure to state a claim in accordance with 28 U.S.C. § 1915(e)(2)(B)(ii) and 28 U.S.C. § 1915A(b)(1); 6. The Clerk shall terminate "Schenectady County Sheriff's" as a defendant in this action; 7. The Clerk is directed to add "Officer "Doe'" to the docket as a defendant; 8. The Clerk shall issue summonses and forwa rd them to the U.S. Marshal for service of process upon Officer Smith, Sgt. Guido, Sgt. Gangurem, Sgt. Cellino, and Capt. Dean; the Clerk shall forward a copy of the summons and complaint by mail to the Office of the Schenectady County Attorney, together with a copy of this Decision and Order; 9. A response to the complaint shall be filed by defendants or their counsel as provided for in the Federal Rules of Civil Procedure; 10. Plaintiff must take reasonable steps through discovery to ascertain the identity of Officer "Doe"; 11. Plaintiff's motion for appointment of counsel (Dkt. No. 5 ) is DENIED without prejudice to renew at a later stage of this proceeding; 12. Plaintiff's motion seeking preliminary injunctive relief (Dkt. No. 6 ) is DENIED. Signed by Judge David N. Hurd on 2/8/18. (served on plaintiff by regular mail) (alh, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
SHERIFFS, SMITH, Badge
#287, SERGEANT GUIDO,
SERGEANT CELLINO, and
Plaintiff, pro se
Schenectady County Jail
320 Veeder Avenue
Schenectady, New York 12307
DAVID N. HURD
United States District Judge
DECISION and ORDER
Pro se plaintiff Dale Gilmore ("Gilmore" or "plaintiff") filed this complaint asserting
claims arising out of his confinement in the custody of Schenectady County. Dkt. No. 1
("Compl.").1 Although plaintiff initially commenced this action in the United States District
Court for the Eastern District of New York, it was transferred to this District by Order of
On January 4, 2018, plaintiff commenced a second civil rights action in this District. Gilmore v. State
of New York, No. 9:18-CV-0013 (GLS/ATB) (N.D.N.Y. Jan. 4, 2018).
Eastern District Judge Pamela K. Chen. Dkt. No. 7. Plaintiff has not paid the filing fee for
this action and seeks leave to proceed in forma pauperis. Dkt. No. 10 ("IFP Application"). In
addition, plaintiff has filed motions seeking appointment of counsel and preliminary injunctive
relief. Dkt. Nos. 5, 6.
II. IFP APPLICATION
"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). 2 "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)).
Upon review of Gilmore's IFP Application, he has demonstrated sufficient economic
need. Plaintiff has also filed the inmate authorization required in the Northern District of New
York. See Dkt. No. 11. Accordingly, plaintiff's IFP Application is granted.
III. SUFFICIENCY OF THE COMPLAINT
A. Governing Standard
Having found that Gilmore meets the financial criteria for commencing this action in
forma pauperis, and because he seeks relief from a governmental entity and from
Section 1915(g) prohibits a prisoner from proceeding in forma pauperis where, absent a showing of
"imminent danger of serious physical injury," a prisoner has filed three or more actions or appeals that were
subsequently dismissed as frivolous, malicious, or failing to state a claim upon which relief may be granted. See
28 U.S.C. § 1915(g). Based upon a review of plaintiff's litigation history on the Federal Judiciary's Public Access
to Court Electronic Records ("PACER") Service, it does not appear that plaintiff has accumulated three strikes
for purposes of 28 U.S.C. § 1915(g).
governmental officials and employees, the sufficiency of the allegations set forth in his
complaint must be considered in light of 28 U.S.C. § 1915(e) and 28 U.S.C. § 1915A.
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).
Similarly, Section 1915A directs that 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 (1) is frivolous, malicious, or fails to state a claim
upon which relief may be granted; or (2) seeks monetary relief from a defendant who is
immune from such relief." 28 U.S.C. § 1915A(b); see also 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).
Thus, although the court has the 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 om itted),
the court also has a responsibility to determine whether plaintiff may properly proceed with
A court should not dismiss a complaint if the plaintiff has alleged "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) (citation omitted). 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). Thus, "where 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)).
B. Summary of the Complaint
The following facts are set forth as alleged in the complaint. During his confinement at
Schenectady County Jail, Gilmore has been denied timely access to requested legal
materials and supplies, and his legal mail has been interfered with and denied. See Compl.
at 4, 6-8. These legal resources and materials were requested in connection with plaintiff's
preparation of his criminal defense. Id. As plaintiff explains, he proceeded with his defense
pro se. Id.
During the period May through July 2017, C.O. Smith "continually denied [Gilmore]
access to notary." Compl. at 7. Officer "Doe" denied plaintiff "free legal mail" and refused to
send mail directed to the "Attorney General." Id.3 Sgt. Guido (identified as the "law clerk
Sgt."), denied plaintiff access to requested legal materials. Id. "I was told no to access to the
courts law library, law books." Id. Plaintiff's requests for free paper and envelopes for legal
mailings were denied by Sgt. Gangurem, notwithstanding plaintiff's indigency. Id. Plaintiff's
request to Capt. Dean that he be housed closer to the law library was ignored. Id. The
"Schenectady County Sheriff's" collaborated with the district attorneys to hinder plaintiff's
criminal defense by denying him access to the courts. Id. at 4.
Gilmore was convicted on September 6, 2017. Compl. at 6. On November 20, 2017,
plaintiff told Sgt. Guido, Sgt. Gangurem, and Sgt. Cellino that he needed "paper, notary,
copies and time with the law library" in order to prepare for his sentencing. Id. Plaintiff's
requests were denied; he was told to file a grievance, which he did. Id. at 6, 8.
Liberally construed, Gilmore claims that he was (1) denied access to the courts and
(2) maliciously prosecuted in violation of his constitutional rights. Plaintiff seeks an award of
money damages as well as declaratory and injunctive relief. Id. at 3, 5. For a complete
statement of plaintiff's claims and the facts he relies on in support of those claims, reference
is made to the complaint.
Section 1983 of Title 42 of the United States Code ("Section 1983") establishes a
cause of action for "'the deprivation of any rights, privileges, or immunities secured by the
Constitution and laws' of the United States." Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498,
Although Officer "Doe" is not listed in the caption of the complaint, he is included in the listing of
defendants provided on page 8. See Compl. at 8. The Clerk is directed to add "Officer "Doe'" to the docket as a
508 (1990) (quoting Section 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).
1. Access to the Courts
"Prisoners, including pretrial detainees, 'have a constitutional right of access to the
courts.'" Bourdon v. Loughren, 386 F.3d 88, 92 (2d Cir. 2004) (quoting Bounds v. Smith, 430
U.S. 817, 821 (1977)). This fundamental right requires prison authorities to "assist inmates
in the preparation and filing of meaningful legal papers by providing prisoners with adequate
law libraries or adequate assistance from persons trained in the law." Bounds, 430 U.S. at
"The right of access to the courts requires that prisoners defending against criminal
charges or convictions (either directly or collaterally) or challenging the conditions of their
confinement . . . not be impeded from presenting those defenses and claims for formal
adjudication by a court." Bourdon, 386 F.3d at 96. Inmate access to the court must be
"adequate, effective, and meaningful." Bounds, 430 U.S. at 822.
An inmate alleging a denial of access to courts must show "actual injury" as a result of
the deficient access to the courts; that is, that he was "hindered [in] his efforts to pursue a
legal claim." Lewis v. Casey, 518 U.S. 343, 351 (1995). The Lewis Court explained that an
inmate cannot demonstrate an actual injury "simply by establishing that his prison's law
library or legal assistance program is sub-par in some theoretical sense." Id. at 351.4
Additionally, a law library is only one way for inmates to be provided with access to the courts. See
Bounds, 430 U.S. at 830-31. Thus, if an inmate is afforded counsel there is no constitutional requirement that he
also be afforded access to law books. Id.; Bourdon v. Loughren, 386 F.3d 88, 93 (2d Cir. 2004) ("we confirm
that the appointment of counsel can be a valid means of satisfying a prisoner’s right of access to the courts.").
As noted, plaintiff states that he proceeded with his criminal defense pro se.
"Prison officials may only be held liable for such injury if they frustrated or impeded a
prisoner's efforts to pursue a non-frivolous legal claim." Konigsberg v. Lefevre, 267 F. Supp.
2d 255, 261 (N.D.N.Y. 2003).
At this early stage of the proceedings and 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), Gilmore's First Amendment access to the courts
claims against Officer Smith, Officer "Doe," Sgt. Guido, Sgt. Gangurem, Sgt. Cellino, and
Capt. Dean survive sua sponte review and require a response.5
2. Malicious Prosecution
However, Gilmore's malicious prosecution claims are insufficient to survive initial
review. To make out a federal claim of malicious prosecution cognizable under Section
1983, "a plaintiff must show a violation of his rights under the Fourth Amendment and must
establish the elements of a malicious prosecution claim under state law." Willey v.
Kirkpatrick, 801 F.3d 51, 70 (2d Cir. 2015) (quoting Manganiello v. City of New York, 612
F.3d 149, 160-61 (2d Cir. 2010)).
"To establish a malicious prosecution claim under New York law, a plaintiff must prove
'(1) the initiation or continuation of a criminal proceeding against plaintiff; (2) termination of
the proceeding in plaintiff's favor; (3) lack of probable cause for commencing the proceeding;
and (4) actual malice as a motivation for defendant's actions.'" Manganiello, 612 F.3d at 161
(quoting Murphy v. Lynn, 118 F.3d 938, 947 (2d Cir. 1997)).
Plaintiff is advised that the U.S. Marshals Service can not effect service of a summons and complaint
on an individual who has not been identified by name. Plaintiff is therefore directed to take reasonable steps
through discovery to ascertain the name of Officer "Doe." If plaintiff fails to ascertain this defendant's name so
as to permit the timely amendment of the complaint and service of process on this individual, this action will be
dismissed as against Officer "Doe."
Here, because Gilmore states that he was convicted of criminal charges against him
there is no basis in the record upon which to conclude, inter alia, that the proceeding
terminated in his favor. As a result, this claim is dismissed without prejudice for failure to
state a claim. See 28 U.S.C. § 1915(e)(2)(B)(ii) and 28 U.S.C. § 1915A(b)(1).
3. Other Matters
Finally, it is noted that "Schenectady County Sheriff's" is listed as a defendant in the
caption of the complaint. Compl. at 1. While it is not entirely clear whether Gilmore intended
this as a collective reference to the individual defendants or whether he seeks to assert
claims against the Sheriff's Department, the Schenectady Sheriff's Department is not a
It is well-settled that municipal departments and offices which have no separate legal
identity and cannot sue or be sued are not "persons" under Section 1983. See Jenkins v.
City of New York, 478 F.3d 76, 93 n.19 (2d Cir. 2007) (affirming the district court's dismissal
of claims against the NYPD as a non-suable entity); Sanchez-Martin v. Allegany Cnty. Jail,
No. 11-CV-0568, 2012 WL 360014, at *2 (W.D.N.Y. Feb. 1, 2012) (county correctional
facilities do not have legal identities separate and apart from the counties and are not subject
to suit under Section 1983); Ceparano v. Suffolk County, No. 10-CV-2030, 2010 WL
5437212, at *6 (E.D.N.Y. Dec. 15, 2010) (dismissing claims against Suffolk County Police
Dep't, Suffolk County District Attorney's Office, Suffolk County Sheriff's Dep't and Suffolk
County Probation Dep't because these entities are not am enable to suit).
As a result, "Schenectady County Sheriff's" is dismissed as a defendant in this
action. See 28 U.S.C. § 1915(e)(2)(B)(ii) and 28 U.S.C. § 1915A(b)(1).
IV. APPOINTMENT OF COUNSEL
Courts cannot utilize a bright-line test in determining whether counsel should be
appointed on behalf of an indigent party. Hendricks v. Coughlin, 114 F.3d 390, 392-93 (2d
Cir. 1997). Instead, the Court must carefully consider a number of factors in ruling upon
such a motion.
As the Second Circuit stated in Hodge v. Police Officers, 802 F.2d 58, 61 (2d Cir.
1986), "the district judge should first determine whether the indigent's position seems likely to
be of substance." If the claim satisfies that threshold requirement, the court must then
the indigent's ability to investigate the crucial facts, whether
conflicting evidence implicating the need for cross examination
will be the major proof presented to the fact finder, the indigent's
ability to present the case, the complexity of the legal issues and
any special reason in that case why appointment of counsel would
be more likely to lead to a just determination.
Id. at 61-62. None of these factors are controlling in any particular case. Rather, the court
must decide each case on its own facts. Id. at 61.
At this early stage of the litigation, it is difficult to assess the likely merits of Gilmore's
surviving claims. Moreover, there is nothing in the record which demonstrates that plaintiff is
not able to effectively pursue this action at this time. While it is possible that there will be
conflicting evidence implicating the need for cross-examination if this case proceeds to trial,
"this factor alone is not determinative of a motion for appointment of counsel." Velasquez v.
O'Keefe, 899 F. Supp. 972, 974 (N.D.N.Y. 1995) (McAvoy, C.J.) (citing Hodge, 802 F.2d at
61). Further, if this case survives a dispositive motion filed by defendant, it is highly probable
that trial counsel will be appointed at the final pretrial conference. Finally, there is no special
reason why appointment of counsel at this time would be more likely to lead to a just
determination of this litigation. Accordingly, plaintiff's request for appointment of counsel
(Dkt. No. 5) is denied without prejudice.
V. INJUNCTIVE RELIEF
"In general, district courts may grant a preliminary injunction where a plaintiff
demonstrates 'irreparable harm' and meets one of two related standards: 'either (a) a
likelihood of success on the merits, or (b) sufficiently serious questions going to the merits of
its claims to make them fair ground for litigation, plus a balance of the hardships tipping
decidedly in favor of the moving party.'" Otoe-Missouria Tribe of Indians v. New York State
Dep't of Fin. Servs., 769 F.3d 105, 110 (2d Cir. 2014) (quoting Lynch v. City of N.Y., 589
F.3d 94, 98 (2d Cir. 2009) (internal quotation marks omitted)).
However, when the moving party seeks a "mandatory injunction that alters the status
quo by commanding a positive act," the burden is "even higher." Cacchillo v. Insmed, Inc.,
638 F.3d 401, 406 (2d Cir. 2011) (citing Citigroup Global Mkts., Inc. v. VCG Special
Opportunities Master Fund Ltd., 598 F.3d 30, 35 n.4 (2d Cir. 2010) (internal quotation marks
A mandatory preliminary injunction "should issue only upon a clear showing that the
moving party is entitled to the relief requested, or where extreme or very serious damage will
result from a denial of preliminary relief." Cacchillo, 638 F.3d at 406 (citing Citigroup Global
Mkts., 598 F.3d at 35 n.4) (internal quotation marks omitted)); see also Tom Doherty
Assocs., Inc. v. Saban Entertainment, Inc., 60 F.3d 27, 33-34 (2d Cir. 1995) (a plaintiff
seeking a mandatory injunction must make a "clear" or "substantial" showing of a likelihood
of success on the merits of his claim).
The same standards used to review a request for a preliminary injunction govern
consideration of an application for a temporary restraining order. Local 1814, Int'l
Longshoremen's Ass'n, AFL-CIO v. New York Shipping Ass'n, Inc., 965 F.2d 1224, 1228 (2d
Cir. 1992); Perri v. Bloomberg, No. 06-CV-0403, 2008 WL 2944642, at * 2 (E.D.N.Y. Jul. 31,
2008). The district court has wide discretion in determining whether to grant preliminary
injunctive relief. Moore v. Consol. Edison Co. of New York, Inc., 409 F.3d 506, 510 (2d Cir.
In this case, Gilmore seeks preliminary injunctive relief and the issuance of a
temporary restraining order prohibiting defendants from "hindering inmates due process of
law" and "denying access to the courts." Dkt. No. 6.
Upon review, Gilmore's request for injunctive relief must be denied. Injunctions
directing a party to refrain from misconduct or other wrongdoing (often referred to as "obey
the law injunctions") are generally disfavored by courts because they are vague, not readily
enforceable, and would not subject defendants to any requirement not already imposed by
law. See Rowe v. New York State Div. of the Budget, No. 1:11-CV-1150 (LEK/DRH), 2012
WL 4092856, at *7 (N.D.N.Y. Sept. 17, 2012) (citing N.L.R.B. v. Express Pub. Co., 312 U.S.
426, 435-36 (1941)).
In addition, Gilmore has failed to demonstrate with evidence, a likelihood of success
on the merits of his underlying claims, or sufficiently serious questions going to the merits
and a balance of hardships tipping decidedly in his favor. See Ivy Mar Co. v. C.R. Seasons
Ltd., 907 F. Supp. 547, 561 (E.D.N.Y. 1995) ("[B]are allegations, without more, are
insufficient for the issuance of a preliminary injunction."); Hancock v. Essential Res., Inc., 792
F. Supp. 924, 928 (S.D.N.Y. 1992) ("Preliminary injunctive relief cannot rest on mere
hypotheticals."). Accordingly, plaintiff's motion for preliminary injunctive relief (Dkt. No. 6) is
Therefore, it is
1. Plaintiff's IFP Application (Dkt. No. 10) is GRANTED;6
2. The Clerk of the Court shall provide the superintendent of the facility designated by
plaintiff as his current location with a copy of plaintiff's Inmate Authorization (Dkt. No. 11),
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 in installments, over time,
pursuant to 28 U.S.C. § 1915;
3. The Clerk shall provide a copy of plaintiff's Inmate Authorization (Dkt. No. 11) to
the Financial Deputy of the Clerk's Office;
4. Plaintiff's denial of access to the courts claims SURVIVE initial review and require a
response from the individual defendants;
5. Plaintiff's remaining claims are DISMISSED without prejudice for failure to state a
claim in accordance with 28 U.S.C. § 1915(e)(2)(B)(ii) and 28 U.S.C. § 1915A(b)(1);
6. The Clerk shall terminate "Schenectady County Sheriff's" as a defendant in this
7. The Clerk is directed to add "Officer "Doe'" to the docket as a defendant;
8. The Clerk shall issue summonses and forward them to the U.S. Marshal for
Plaintiff should note that he will still be required to pay fees that he may incur in this action, including
but not limited to copying and/or witness fees.
service of process upon Officer Smith, Sgt. Guido, Sgt. Gangurem, Sgt. Cellino, and Capt.
Dean; the Clerk shall forward a copy of the summons and complaint by mail to the Office of
the Schenectady County Attorney, together with a copy of this Decision and Order;
9. A response to the complaint shall be filed by defendants or their counsel as
provided for in the Federal Rules of Civil Procedure;
10. Plaintiff must take reasonable steps through discovery to ascertain the identity of
11. Plaintiff's motion for appointment of counsel (Dkt. No. 5) is DENIED without
prejudice to renew at a later stage of this proceeding;
12. Plaintiff's motion seeking preliminary injunctive relief (Dkt. No. 6) is DENIED;
13. 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;
14. Plaintiff must comply with requests by the Clerk's Office for any documents that
are necessary to maintain this action;
15. 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;
16. 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
17. The Clerk shall serve a copy of this Decision and Order on plaintiff.
IT IS SO ORDERED.
Dated: February 8, 2018
Utica, New York.
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