Purcelle v. Thomas et al
Filing
87
DECISION AND ORDER that plaintiff's motion to supplement the complaint (Dkt. No. 81 ) is DENIED; and it is further ORDERED that plaintiff's motion for a preliminary injunction (Dkt. No. 74 ) is DENIED; and it is further ORDERED that plain tiff's request to hold the motion for preliminary injunction in abeyance (Dkt. No. 82 ) is DENIED; and it is further ORDERED that plaintiff has thirty (30) days of the date of this Decision and Order to file an amended complaint identifying def endants Does 1-3 and Nurse Doe by name; and it is further ORDERED that, upon receipt of any amended complaint as directed above, the Clerk shall return the file to the Court for further review; and it is further ORDERED that, if plaintiff fails to fi le an amended complaint as directed above, all claims asserted against defendants Does 1-3 and Nurse Doe shall be dismissed without prejudice without further Order of the Court for failure to serve under Rule 4 (m) of the Federal Rules of Civil Pro cedure and the Clerk shall terminate those defendants from the docket. Signed by Senior District Judge Gary L. Sharpe on 4/22/2019. (Notice of Compliance Deadline 5/22/2019, Case Review Deadline 6/21/2019). (Copy served upon plaintiff via regular mail). (sal )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
BRITTAIN J. PURCELLE,
Plaintiff,
v.
9:18-CV-0077
(GLS/TWD)
JOHN THOMAS et al.,
Defendants.
APPEARANCES:
BRITTAIN J. PURCELLE
Plaintiff, Pro Se
14-B-0600
Clinton Correctional Facility
P.O. Box 2001
Dannemora, NY 12929
FOR THE DEFENDANTS:
HON. LETITIA JAMES
New York State Attorney General
300 South State Street, Suite 300
Syracuse, NY 13202
WILLIAM E. ARNOLD, IV
Assistant Attorney General
GARY L. SHARPE
Senior United States District Judge
DECISION AND ORDER
I.
INTRODUCTION
Pro se plaintiff Brittain J. Purcelle, a prison inmate in the custody of the New York
State Department of Corrections and Community Supervision (DOCCS), commenced this
action on or about January 18, 2018. Following its review of plaintiff's application for in forma
pauperis (IFP) status and complaint pursuant to 28 U.S.C. § 1915 and 28 U.S.C. § 1915A,
the Court issued a Decision and Order on April 9, 2018, granting plaintiff IFP status and
accepting the complaint for filing only to the extent that it asserts the following causes of
action: (1) Eighth Amendment excssive force and failure to intervene against defendants
John Thomas and John Does 1-3; (2) Eighth Amendment deliberate medical indifference
claims against defendants Nurse A. Hoppins, 1 Kooi, and Nurse Doe; (3) Fourteenth
Amendment claims against defendants Brian Bauersfeld and Donald Venettozzi; and (4)
New York State common law claims against defendants Thomas, Does 1-3, Hoppins, Nurse
Doe, and Kooi. Dkt. No. 11 ("April Order"). All of the claims asserted in the original
complaint arise from a use of force incident that occurred at Auburn Correctional Facility
("Auburn C.F.") in or about January 2015. See generally Compl.
In the April Order, pursuant to Valentin v. Dinkins, 121 F.3d 72, 75 (2d Cir. 1997),
defendants were requested to assist plaintiff in identifying the Doe defendants. April Order at
18; see Dkt. No. 73. On March 19, 2019, defendants informed the Court that only defendant
Thomas was involved in the use of force incident in January 2015 at Auburn C.F., but that
Lieutenant Michael Ouimette responded to the scene "after the alleged incident had
concluded" and assisted in escorting plaintiff to the Special Housing Unit (SHU). Dkt. No. 77
at 1. Defendants further informed the Court that they did not have any further information
concerning the identities of the Doe defendants. Id. Plaintiff was directed to file an amended
complaint "to add the identified individual[, Michael Ouimette,] as a defendant, if appropriate,
. . . by [April 12,] 2019." Dkt. No. 78. On March 27, 2019, the Court received plaintiff's
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Defendant Hoppins was originally identified by plaintiff as defendant "Timmins." See Dkt. No. 1
("Compl.") at 1, 2. Plaintiff later learned that the correct surname for that individual is "Hoppins," and then
requested the Court deem his complaint as amended insofar as it names Hoppins as a defendant rather than
Timmins. Dkt. No. 30. That request was granted. Dkt. No. 34.
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motion for leave to supplement the complaint to add four defendants to the action arising out
of incidents that occurred beginning in February 2018 at Clinton Correctional Facility ("Clinton
C.F."). See generally Dkt. No. 81-1 ("Proposed Suppl. Compl."). Defendants have
responded in opposition to plaintiff's motion. Dkt. No. 85.
On or about March 28, 2019, plaintiff filed a motion for a preliminary injunction
directing defendants Hoppins and Kooi, as well as Acting DOCCS Commissioner Anthony
Annucci and DOCCS Chief Medical Officer Carl Koenigsmann, to prescribe him a specific
pain medication. Dkt. No. 74 ("PI Mtn."). Defendants responded in opposition to plaintif f's
motion on March 22, 2019. Dkt. No. 79. Plaintif f then filed a letter request that the Court
hold his preliminary injunction motion in abeyance until he receives certain discovery from
defendants. Dkt. No. 82.
The Clerk has forwarded plaintiff's motion to supplement the complaint, motion for
preliminary injunction, and request to hold the preliminary injunction motion in abeyance to
the Court for review.
II.
DISCUSSION
A.
Motion to Supplement the Complaint
Plaintiff's motion seeks to add new claims in the action asserted against four new
defendants who are all employed at Clinton C.F. See Proposed Suppl. Compl. Accordingly,
Rule 15(d) of the Federal Rules of Civil Procedure governing supplemental pleadings applies
to plaintiff's motion. In relevant part, Rule 15(d) provides that, "[o]n motion and reasonable
notice, the court may, on just terms, permit a party to serve a supplemental pleading setting
out any transaction, occurrence, or event that happened after the date of the pleading to be
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supplemented." Fed. R. Civ. P. 15(d). "[L]eave to file a supplemental pleading should be
freely permitted when the supplemental facts connect it to the original pleading." Quaratino
v. Tiffany & Co., 71 F.3d 58, 66 (2d Cir. 1995). Otherwise, the considerations governing
motions to supplement are identical to those considered in connection with a motion to
amend a complaint under Rule 15(a). Quaratino, 71 F.3d at 66. In particular, leave to
supplement or amend should freely be granted absent the finding of undue delay, bad faith,
dilatory tactics, undue prejudice in being served with the supplemental pleading, or futility.
See Foman v. Davis, 371 U.S. 178, 182 (1962); accord Quaratino, 71 F.3d at 66.
As noted above, plaintiff's Proposed Supplemental Complaint seeks to assert Eighth
Amendment deliberate medical indifference, verbal threats, and Fourteenth Amendment due
process claims against four individuals stationed at Clinton C.F., where plaintiff has been
confined since February 6, 2018. Proposed Suppl. Compl. Generally, the proposed
pleading alleges that Nurse Practitioner (NP) Devlin-Varin has denied plaintiff adequate
medical treatment for the injuries he suffered during the January 2015 use of force incident
at Auburn C.F., and that Clinton C.F. Medical Director Jane Doe is com plicit, in her capacity
as NP Devlin-Varin's supervisor, in the inadequate medical treatment provided by NP DevlinVarin. Id. at 2-5, 9. Plaintiff also alleges that he sent three letters to Clinton C.F. Inmate
Grievance Program Supervisor Gregory beginning on approximately March 7, 2019,
complaining of, among other things, NP Devlin-Varin's inadequate medical treatment, but
that he has not received a response to any of the letters. Id. at 7. Finally, on an unidentified
date, Clinton C.F. Nurse Khan verbally threatened to issue plaintiff a misbehavior report in
retaliation "for [plaintiff] filing so many sick call requests" and, since that interaction, plaintiff
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has "mailed three unanswered sick call requests." Id.
Plaintiff's motion for leave to file a supplemental complaint arising from the foregoing
allegations is denied for two reasons. First, the Proposed Supplemental Complaint only
tangentially relates to the incidents originally giving rise to this action. While the original
complaint alleges that plaintiff was subjected to an excessive use of force by a corrections
officer stationed at Auburn C.F. in January 2015, the Proposed Supplemental Complaint
stems from allegations of inadequate medical treatment three years later by a nurse
stationed at a separate correctional facility. Although plaintiff alleges that the injuries for
which he is being treated at Clinton C.F. were caused by the use of force incident at Auburn
C.F., the factual circumstances and legal theories of the claims set forth in the Proposed
Supplemental Complaint are too far afield from the facts and claims set forth in the original
complaint to permit inclusion in this action. See, e.g., Stiller v. Colangelo, 221 F.R.D. 316,
317 (D. Conn. 2004) (denying the plaintiff's motion to amend to add new claims and new
legal theories that did not arise out of the underlying breach-of-contract cause of action but
instead arose "'out of Defendants' handling of [the] litigation since the filing of the
Complaint'"); 6 Wright, Miller & Kane, Fed. Prac. & Proc., § 1487 ("[I]f the court determines
that the . . . issues raised by the amendment are remote from the other issues in the case
and might confuse or mislead the jury, leave to amend may be denied." (footnotes omitted)).
The second basis for denying plaintiff's motion to supplement the complaint is that
defendants would be unfairly prejudiced by the addition of new claims and new defendants at
this late stage of the action. This action is already fourteen months old, and discovery in the
action is set to expire on April 30, 2019. The original defendants (Thomas, Hoppins,
Bauersfeld, and Venettozzi), who have no apparent connection to Clinton C.F. or the m edical
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treatment plaintiff is now receiving at that facility, would be forced to wait for discovery
concerning the new claims and new defendants to be completed before filing dispositive
motions and/or proceeding to trial. Such a delay is unfair to defendants who have diligently
defended against the causes of action pending against them arising from the original
complaint. Moreover, plaintiff has offered no justification for waiting until now to seek
permission to add the proposed new claims. The Court also notes that there is no apparent
prejudice to plaintiff in denying his motion at this time in light of the fact that he is free to
commence a new lawsuit against the proposed new defendants stationed at Clinton C.F.
arising from the alleged unconstitutional conditions of confinement plaintiff now suffers at that
facility. See, e.g., Darowski v. Wojewoda, No. 15-CV-0803, 2018 WL 2122822, at *2-3 (D.
Conn. May 8, 2018) (denying the plaintiff's motion for leave to file an amended complaint
based on, inter alia, the plaintiff's undue delay in bringing the motion, the risk of confusion of
issues given the unrelated nature of the original and newly proposed claims, and the fact that
the plaintiff was free to commence a new action based on the new claims).
Accordingly, because the Proposed Supplemental Complaint does not sufficiently
relate to the claims originally giving rise to this action, and because the balance of fairness
weighs in defendants' favor given plaintiff's ability to commence a new lawsuit concerning the
conditions of confinement at Clinton C.F., plaintiff's motion to supplement the complaint is
denied.
B.
Motion for Preliminary Injunction
Plaintiff seeks an injunction directing defendants Hoppins and Kooi, as well as
DOCCS Acting Commissioner Annucci and DOCCS Chief Medical Officer Koenigsmann, to
prescribe him Neurontin, a pain medication, to address pain he experiences as a result of an
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injury to his ulnar nerve that occurred in 2006. PI Mtn. at 1. Plaintif f alleges that, although
he had been taking Neurontin since 2012, defendant Kooi discontinued the prescription in or
about January 2015, shortly after the use of force incident involving defendant Thomas at
Auburn C.F. Id. at 1-2. Plaintiff contends that DOCCS Chief Medical Officer Koenigsmann
"is the only DOCCS employee with the authority to reinstate [his] discontinued prescription,
or to authorize [his] current [medical] provider to do so." Id. at 2.
"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. N.Y.S. Dep't of
Fin. Servs., 769 F.3d 105, 119 (2d Cir. 2014) (quoting Lynch v. N.Y., 589 F.3d 94, 98 (2d Cir.
2009)). When the moving party seeks a "mandatory injunction that alters the status quo by
commanding a positive act," the burden is heightened. Cacchillo v. Insmed, Inc., 638 F.3d
401, 406 (2d Cir. 2011) (internal quotation marks omitted). 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 (internal quotation marks omitted).
"'[T]he single most important prerequisite for the issuance of a preliminary injunction'"
is a showing that the moving party will suffer irreparable harm. Bisnews AFE (Thailand) Ltd.
v. Aspen Research Grp. Ltd., 437 F. App'x 57, 58 (2d Cir. 2011) (quoting Faiveley Transp.
Malmo AB v. Wabtec Corp., 559 F.3d 110, 118 (2d Cir. 2009)). Speculative injury is not the
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province of injunctive relief. See City of L.A. v. Lyons, 461 U.S. 95, 111-12 (1983). Rather, a
plaintiff seeking to satisfy the irreparable harm requirement must demonstrate that, "absent a
preliminary injunction [he or she] will suffer an injury that is neither remote nor speculative,
but actual and imminent, and one that cannot be remedied if a court waits until the end of
trial to resolve the harm.
Plaintiff's motion fails to allege that plaintiff is at risk of irreparable harm if he is not
prescribed Neurontin. Although he alleges that he suffers from mental health issues,
including depression, he admits that he cannot conclude that the pain he suf fers in his ulnar
nerve causes his emotional instability. Dkt. No. 74-1 at 2-3. Also fatal to plaintiff's motion is
that he seeks an injunction against two individuals (Annucci and Koenigsmann) who are not
parties to the action. Except in limited circumstances not relevant here, a court may not
order injunctive relief as to non-parties to an action. See Fed. R. Civ. P. 65(d) ("[e]very order
granting an injunction . . . binds only . . . the parties . . . ."); see also United States v. Regan,
858 F.2d 115, 120 (2d Cir. 1988); Slacks v. Gray, No. 07-CV-0510, 2008 WL 2522075, at *1
n.1 (N.D.N.Y. Jun. 25, 2008). With respect to defendants Kooi and Hoppins, they have no
apparent authority to prescribe plaintiff medication because plaintiff has been transferred out
of Auburn C.F. and they are no longer plaintiff's medical care providers. "In this circuit, an
inmate's transfer from a prison facility generally moots claims for declaratory and injunctive
relief against officials of that facility." Salahuddin v. Goord, 467 F.3d 263, 272 (2d Cir. 2006).
For all these reasons, plaintiff's motion for a preliminary injunction is denied.
Because, as set forth above, there is no basis on which the Court can grant plaintiff's
motion for preliminary injunction because of its fatal deficiencies, holding the motion in
abeyance, as requested by plaintiff, is futile and unnecessarily prolongs this action further.
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Accordingly, plaintiff's request to hold the motion in abeyance is also denied.
C.
Status of Defendants Doe 1-3 and Nurse Doe
Plaintiff's complaint asserts claims against defendants Does 1-3 and Nurse Doe. See
Compl. at 4-5, 7; April Order at 9-10. To date, plaintiff has not identified those individuals by
name, sought to amend the complaint to add their names (if known) to the action, or served
them with process. Rule 4(m) of the Federal Rules of Civil Procedure authorize "the court –
on motion or on its own after notice to plaintiff" – to dismiss a plaintiff's claims asserted
against a defendant where a summons and complaint have not been served upon that party
within 90 days after filing the complaint, absent a showing of good cause. Fed R. Civ. P.
4(m); see Romand v. Zimmerman, 881 F. Supp. 806, 809 (N.D.N.Y. 1995) ("[T]he [90]-day
filing requirement applies to pro se plfs as well as those represented by counsel."). This is
because when "Doe" defendants have been served or otherwise appeared in the action
within this time period, the Court does not acquire jurisdiction over them. See, e.g.,
Michelson v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 709 F. Supp. 1279, 1282 (S.D.N.Y.
1989) (citing Miss. Publ'g Corp. v. Murphree, 326 U.S. 438, 444-45 (1946)).
Upon a showing of good cause, the time for service must be extended. Panaras v.
Liquid Carbonic Indus. Corp., 94 F.3d 338, 340 (7th Cir. 1996). "If, however, good cause
does not exist, the court may, in its discretion, either dismiss the action without prejudice or
direct that service be effected within a specified time." Panaras, 94 F.3d at 340 (citing Fed.
R. Civ. P. 4(m)); see Zapata v. City of New York, 502 F.3d 192, 196 (2d Cir. 2007) ("We hold
that district courts have discretion to grant extensions even in the absence of good cause.");
Romandette v. Weetabix Co., Inc., 807 F.2d 309, 311 (2d Cir. 1986). W hen examining
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whether to extend the prescribed period for service, a district court is afforded ample
discretion to weigh the "overlapping equitable considerations" involved in determining
whether good cause exists and whether an extension may be granted in the absence of good
cause. See Zapata, 502 F.3d at 197.
Discovery is scheduled to conclude in this action on April 30, 2019. Dkt. No. 66.
Defendants have demonstrated that, to the best of their abilities, they have assisted plaintiff
in identifying the Doe defendants. Dkt. No. 77. Despite these circumstances, plaintiff has
not yet identified or served the Doe defendants with process. Accordingly, unless plaintiff
files an amended complaint within 30 days of the date of this Decision and Order identifying
defendants Does 1-3 and Nurse Doe by name, the claims asserted against those individuals
will be dismissed without prejudice without further Order of the Court for failure to timely
effectuate service and the Clerk of the Court shall terminate those defendants from the
docket.
III.
CONCLUSION
WHEREFORE, for the foregoing reasons, it is
ORDERED that plaintiff's motion to supplement the complaint (Dkt. No. 81) is
DENIED; and it is further
ORDERED that plaintiff's motion for a preliminary injunction (Dkt. No. 74) is DENIED;
and it is further
ORDERED that plaintiff's request to hold the motion for preliminary injunction in
abeyance (Dkt. No. 82) is DENIED; and it is further
ORDERED that plaintiff has THIRTY (30) days of the date of this Decision and Order
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to file an amended complaint identifying defendants Does 1-3 and Nurse Doe by name; and
it is further
ORDERED that, upon receipt of any amended complaint as directed above, the Clerk
shall return the file to the Court for further review; and it is further
ORDERED that, if plaintiff fails to file an amended complaint as directed above, all
claims asserted against defendants Does 1-3 and Nurse Doe shall be dismissed without
prejudice without further Order of the Court for failure to serve under Rule 4(m) of the
Federal Rules of Civil Procedure and the Clerk shall terminate those defendants from the
docket; and it is further
ORDERED that the Clerk of the Court serve a copy of this Decision and Order on the
parties in accordance with the Local Rules of Practice.
IT IS SO ORDERED.
April 22, 2019
Albany, New York
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