Animashaun v. Toohill et al

Filing 20

DECISION AND ORDER: ORDERED that plaintiff's Motion for Reconsideration (Dkt. No. 18 ) is DENIED. ORDERED that plaintiff's motion to amend (Dkt. No. 17 at 1) is GRANTED IN PART and DENIED IN PART. ORDERED that the Clerk shall do the following: (1) attach the first page of plaintiff's proposed amended pleading (Dkt. No. 17 at 2) after what is currently page four of the amended complaint; (2) attach the second page of plaintiff's proposed amended pleading (Dkt. No . 17 at 3) after what is currently page eight of the amended complaint; (3) attach page five of the proposed amended pleading after the signature page of the amended complaint; (4) docket the combined pleading as the second amended complaint; and (5) add Corrections Officer B. Chevier, Corrections Officer Z. Holmes, and Corrections Officer W. Hoffnagle to the docket as defendants. ORDERED that plaintiff's official capacity claims against defendants Chevier, Holmes, and Hoffnagle are DIS MISSED with prejudice pursuant to 28 U.S.C. § 1915A(b) as barred by the Eleventh Amendment. ORDERED that plaintiff's Eighth Amendment failure-to-intervene claims against defendants Chevier, Holmes, and Hoffnagle, along with plaintiff 9;s Eighth Amendment claimsagainst defendants Toohill, Patrick, Davey, and Tourville, SURVIVE sua sponte review. ORDERED that plaintiff's motion for class certification (Dkt. No. 19 ) is DENIED. ORDERED that plaintiff's Servic e Request (Dkt. No. 15 ) is GRANTED to the extent that plaintiff requests blank USM-285 forms for his completion. ORDERED that the Clerk shall issue a summons for the seven defendants, which reflects plaintiff's current address, and send him a copy of that summons, along with a copy of the second amended complaint and seven blank USM-285 forms for his completion. The Clerk shall also forward a copy of the summons and second amended complaint by mail to the Office of the New York Stat e Attorney General, together with a copy of this Decision and Order. ORDERED that plaintiff shall have thirty (30) days from the date of this Decision andOrder to return to the Court a completed USM-285 form for each defendant, along with seven c opies of the summons and second amended complaint, and the outstanding amount of the applicable service fee, which is $24.00. ORDERED that upon receipt of plaintiff's payment of the outstanding service fee amount and the documents requir ed for service, the U.S. Marshals Service shall be directed to attempt service of the summons and second amended complaint upon defendants Toohill, Patrick, Davey, Tourville, Chevier, Holmes, and Hoffnagle in accordance with Rule 4 of the Federal Ru les of Civil Procedure. ORDERED that, if plaintiff requests service by the U.S. Marshal, he must comply withany additional requests from the U.S. Marshal for documents that are necessary to effectuate service, and must provide payment in advance to the U.S. Marshal for any subsequent service attempt if the original attempt to serve any defendant is unsuccessful. Signed by U.S. District Judge Mae A. D'Agostino on November 18, 2021.( Notice of Compliance Deadline 12/20/2021) {order served via regular mail on plaintiff}(nas)

Case 9:21-cv-00372-MAD-TWD Document 20 Filed 11/18/21 Page 1 of 14

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
DAMILOLA ANIMASHAUN,
Plaintiff,
v.

9:21-CV-0372
(MAD/TWD)

J.J. TOOHILL, et al.,
Defendants.
APPEARANCES:
DAMILOLA ANIMASHAUN
14-A-0061
Plaintiff, pro se
Mid-State Correctional Facility
P.O. Box 2500
Marcy, NY 13403
MAE A. D'AGOSTINO
United States District Judge
DECISION AND ORDER
I.

INTRODUCTION
Plaintiff Damilola Animashaun commenced this action pursuant to 42 U.S.C. § 1983

("Section 1983") by filing a pro se civil rights complaint together with an application for leave
to proceed in forma pauperis ("IFP"). Dkt. No. 1 ("Compl."); Dkt. No. 2 ("First IFP
Application"). By Order entered on April 2, 2021, the case was administratively closed based
on plaintiff's failure to comply with the Court's filing fee requirement. Dkt. No. 3. Thereafter,
plaintiff filed a second application to proceed IFP, along with the inmate authorization form
required in this District, and the Clerk was directed to reopen this action and restore it to the

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Court's active docket. Dkt. Nos. 4, 5, 6.
By Decision and Order entered on June 8, 2021, the Court denied plaintiff's request to
proceed IFP pursuant to 28 U.S.C. § 1915(g) based on a determination that plaintiff
accumulated three "strikes" prior to filing his complaint, and was not entitled to the "imminent
danger" exception. See generally, Dkt. No. 7 ("June 2021 Order"). In addition, plaintiff was
advised that if he wished to proceed with this action, he had to pay the Court's filing fee of
four hundred and two dollars ($402.00) in full. Id. at 7. Thereafter, plaintiff paid the filing fee
in full, and submitted an amended complaint, together with a motion to stay the action. See
Dkt. No. 11 ("Am. Compl."); Dkt. No. 12 ("Motion to Stay").
By Decision and Order entered on October 4, 2021, the Court reviewed the amended
complaint in accordance with 28 U.S.C. § 1915A(b), dismissed some of plaintiff's claims and
some of the named defendants, and found that plaintiff's claims against defendants Toohill,
Patrick, Davey, and Tourville survived sua sponte review. Dkt. No. 13 ("October 2021
Order"). Because plaintiff's application to proceed IFP was denied, the Court directed plaintiff
to pay the service fee and submit a motion requesting service of process if he wished for the
U.S. Marshals Service to attempt service on these defendants. Id. at 14-15. The Court also
denied the Motion to Stay. Id. at 14.
Following the October 2021 Order, plaintiff paid the $32.00 fee necessary for the U.S.
Marshal to attempt service on defendants Toohill, Patrick, Davey, and Tourville. Presently
before the Court are the following: (1) plaintiff's letter request that the Clerk send him four
blank U.S. Marshals forms (USM-285 Forms) for his completion, and the Court, upon receipt
of these completed forms, direct the U.S. Marshals Service to attempt service on the named
defendants, Dkt. No. 15 ("Service Request"); (2) plaintiff's letter request that the Court amend
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the amended complaint to include three additional officials as defendants, Dkt. No. 17;1 (3)
plaintiff's letter request for reconsideration of the October 2021 Order insofar as it dismissed
his medical indifference claims, Dkt. No. 18 ("Motion for Reconsideration"); and (4) plaintiff's
motion for class certification, Dkt. No. 19 ("Motion for Class Certification").
II.

MOTION FOR RECONSIDERATION
A court may justifiably reconsider its previous ruling if: (1) there is an intervening

change in the controlling law; (2) new evidence not previously available comes to light; or (3)
it becomes necessary to remedy a clear error of law or to prevent manifest injustice.
Delaney v. Selsky, 899 F. Supp. 923, 925 (N.D.N.Y. 1995) (McAvoy, C.J.) (citing Doe v. New
York City Dep't of Soc. Servs., 709 F.2d 782, 789 (2d Cir. 1983)). The standard for granting
a motion for reconsideration is strict. Shrader v. CSX Transportation, Inc., 70 F.3d 255, 257
(2d Cir. 1995). A motion for reconsideration "should not be granted where the moving party
seeks solely to relitigate an issue already decided." Id.2 Thus, a motion for reconsideration is
not to be used for "presenting the case under new theories, securing a rehearing on the
merits, or otherwise taking a 'second bite at the apple.'" Sequa Corp. v. GBJ Corp., 156 F.3d
136, 144 (2d Cir. 1998).
Plaintiff seeks reconsideration with respect to the Court's dismissal of his medical
indifference claims. Plaintiff does not suggest that there has been an intervening change in

1
The letter request is accompanied by a proposed pleading that includes allegations of wrongdoing by
the three proposed new defendants, along with an exhibit. See Dkt. No. 17 at 2-4. Although plaintiff's proposed
amended pleading is not a complete pleading as required by the Local Rules of Practice for this District, see
N.D.N.Y.L.R. 15.1(a), out of an abundance of solicitude, and for the sake of efficiency, the Court will construe the
submission as a motion to amend and join parties to the amended complaint pursuant to Rules 15 and 21 of the
Federal Rules of Civil Procedure.
2

Generally, motions for reconsideration are not granted unless "the moving party can point to controlling
decisions or data that the court overlooked - matters, in other words, that might reasonably be expected to alter
the conclusion reached by the court." Shrader, 70 F.3d at 257.

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the controlling law since the October 2021 Order was issued. Instead, plaintiff appears to
seek reconsideration based on new evidence, and to remedy a clear error of law.
More specifically, plaintiff argues that the allegations in the amended complaint make
clear that he sought and was denied physical therapy in 2019, despite complaining of pain in
his left arm, and such allegations are sufficient to state an Eighth Amendment violation. See
Motion for Reconsideration at 1. Plaintiff also appears to argue that "new" facts, detailed in
his motion papers and medical records from 2018 attached thereto, support a finding that he
(1) suffered a serious injury in April, 2018, and (2) discussed his need for physical therapy
with a nurse in 2019, who instead ordered an "x-ray and MRI" for plaintiff, then refused his
request because the scans were "negative[.]" Id. at 1, 4-11.
After thoroughly reviewing plaintiff's motion and affording it due consideration in light of
his status as a pro se litigant, the Court finds that plaintiff presents no basis for
reconsideration of the October 2021 Order.
With respect to plaintiff's argument that the Court incorrectly concluded that the
allegations in the amended complaint were insufficient to state a medical indifference claim
against one or more state officials, the Court concludes that its previous decision was legally
correct and did not work a manifest injustice. Moreover, with respect to plaintiff's argument
regarding "new" evidence, his alleged conversations with a nurse and receipt of an "x-ray and
MRI" in 2019 are facts that were known to him at the time he filed his amended complaint,
and, in any event, do not cure the deficiencies identified in the October 2021 Order with
respect to the medical indifference claims. Similarly, plaintiff's medical records from 2018 do
not appear to satisfy the "new" evidence requirement, and, in any event, do not include facts
from which this Court might plausibly infer that plaintiff (1) was suffering from a serious
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medical condition in 2019 that necessitated physical therapy (such denying plaintiff access to
a few weeks of physical therapy roughly one year after his injuries constituted a sufficiently
serious deprivation in objective terms), and (2) was denied physical therapy out of deliberate
indifference to a known risk to his health or safety.
In light of the foregoing, plaintiff's Motion for Reconsideration is denied.
III.

MOTION TO AMEND
A.

Relevant Legal Standard

The filing of amended pleadings is governed by Rule 15 of the Federal Rules of Civil
Procedure. Fed. R. Civ. P. 15. Rule 15(a) states that leave to amend shall be freely given
"when justice so requires." Foman v. Davis, 371 U.S. 178, 182 (1962); Manson v. Stacescu,
11 F.3d 1127, 1133 (2d Cir. 1993). The Supreme Court has stated:
In the absence of any apparent or declared reason – such as
undue delay, bad faith or dilatory motive on the part of the
movant, repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing party by
virtue of allowance of the amendment, futility of amendment, etc.
– the leave sought should . . . be "freely given."
Foman, 371 U.S. at 182.3 An amended complaint has been described as a "perfection of an
original pleading rather than the establishment of a new cause of action." Klos v. Haskell,
835 F. Supp. 710, 715 n.3 (W.D.N.Y. 1993) (internal quotation marks and citation omitted),
aff'd, 48 F.3d 81 (2d Cir. 1995). The decision to grant or deny a motion to amend is
committed to the sound discretion of the trial court, and the court's decision is not subject to
review on appeal except for abuse of discretion. See Fielding v. Tollaksen, 510 F.3d 175,

3

An amendment of a pleading is considered a "futile" act when the proposed claim would not withstand
a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure. See Lucente v. Int'l Bus.
Machines Corp., 310 F.3d 243, 258 (2d Cir. 2002) (citing Dougherty v. North Hempstead Bd. of Zoning Appeals,
282 F.3d 83, 88 (2d Cir. 2002)).

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179 (2d Cir. 2007).
When a plaintiff seeks to add a new defendant, his motion also implicates Rule 21 of
the Federal Rules of Civil Procedure. Rule 21 authorizes a court, "on motion of any party or
of its own initiative at any stage of the action and on such terms as are just," to order the
addition of parties to an action. Fed. R. Civ. P. 21; City of Syracuse v. Onondaga Cnty., 464
F.3d 297, 308 (2d Cir. 2006). That rule permits joinder "'of a person, who through
inadvertence, mistake or for some other reason, had not been made a party and whose
presence as a party is later found necessary or desirable.'" Oneida Indian Nation of New
York State v. Cnty. of Oneida, 199 F.R.D. 61, 72 (N.D.N.Y. 2000) (McCurn, S.J.) (quoting,
inter alia, United States v. Hansel, 999 F. Supp. 694, 697 (N.D.N.Y. 1998) (McAvoy, J.)).
However, "[a] decision as to whether to permit joinder under Rule 21 is informed by the same
general principles as those governing motions for leave to amend under Rule 15(a)." Castro
v. Heath, No. 9:12-CV-01250 (MAD), 2013 WL 5354241, at *13 (N.D.N.Y. Sept. 23, 2013)
(citing Oneida Indian Nation of New York State, 199 F.R.D. at 72-73).
The decision to grant or deny a motion to amend is committed to the sound discretion
of the trial court and the court's decision is not subject to review on appeal except for abuse
of discretion. Nettis v. Levitt, 241 F.3d 186, 192 (2d Cir. 2001).
B.

The Amended Complaint and October 2021 Order

Plaintiff's amended complaint asserts claims arising while he was in the custody of the
New York State Department of Corrections and Community Supervision ("DOCCS") at
Upstate Correctional Facility ("Upstate C.F.") and Mid-State Correctional Facility ("Mid-State
C.F."). See generally Am. Compl.
In the October 2021 Order, the Court construed the amended complaint to assert the
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following claims: (1) Eighth Amendment excessive force and failure-to-intervene claims
against defendants Toohill, Patrick, Davey, Tourville, and their "Supervisors"; and (2) Eighth
Amendment medical indifference claims against unidentified Upstate C.F. and Mid-State C.F.
officials who denied him access to physical therapy. See October 2021 Order at 5.
Following review of the amended complaint pursuant to 28 U.S.C. § 1915A(b),
plaintiff's Eighth Amendment excessive force and failure-to-intervene claims against
defendants Toohill, Patrick, Davey, and Tourville were found to survive sua sponte review
and require a response. See October 2021 Order at 6-9, 14. All remaining claims were
dismissed for failure to state a claim upon which relief may be granted. Id. at 14.
C.

Overview of the Proposed Amended Pleading

Plaintiff's proposed amended pleading seeks to assert Eighth Amendment failure-tointervene claims against the following officials, in their individual and official capacities, based
on allegations (and a supporting document showing) that they were present during the useof-force incident involving defendants Toohill, Patrick, Davey, and Tourville: (1) Corrections
Officer B. Chevier; (2) Corrections Officer Z. Holmes; and (3) Corrections Officer W.
Hoffnagle. See Dkt. No. 17 at 2-4.
D.

Analysis

Because plaintiff is proceeding in forma pauperis and is an inmate suing government
employees, his proposed amended pleading must be reviewed in accordance with 28 U.S.C.
§ 1915A(b). The legal standard governing the dismissal of a pleading for failure to state a
claim pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b) was discussed at
length in the October 2021 Order and it will not be restated in this Decision and Order. See
October 2021 Order at 2-3.
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Insofar as plaintiff's proposed amended pleading seeks to assert official capacity
claims against Corrections Officer B. Chevier, Corrections Officer Z. Holmes, and Corrections
Officer W. Hoffnagle, his motion to amend is denied because the Eleventh Amendment bars
suits for damages against state officials acting in their official capacities. See Kentucky v.
Graham, 473 U.S. 159, 169 (1985) (a claim for damages against state officials in their official
capacity is considered to be a claim against the State and is therefore barred by the Eleventh
Amendment); Ying Jing Gan v. City of New York, 996 F.2d 522, 529 (2d Cir. 1993) ("To the
extent that a state official is sued for damages in his official capacity, such a suit is deemed to
be a suit against the state, and the official is entitled to invoke the Eleventh Amendment
immunity belonging to the state."); Severino v. Negron, 996 F.2d 1439, 1441 (2d Cir. 1993)
("[I]t is clear that the Eleventh Amendment does not permit suit [under Section 1983] for
money damages against state officials in their official capacities.").4
Insofar as plaintiff's proposed amended pleading seeks to assert Eighth Amendment
claims against Corrections Officer B. Chevier, Corrections Officer Z. Holmes, and Corrections
Officer W. Hoffnagle in their individual capacities, the Court finds that at this stage of the
proceeding, the allegations in the proposed amended pleading are sufficient to warrant a

4

In Ex Parte Young, 209 U.S. 123 (1908), the Supreme Court established an exception to state
sovereign immunity in federal actions where an individual brings an action seeking injunctive relief against a
state official for an ongoing violation of law or the Constitution. Under the doctrine, a suit may proceed against a
state official in his or her official capacity, notwithstanding the Eleventh Amendment, when a plaintiff, "(a) alleges
an ongoing violation of federal law, and (b) seeks relief properly characterized as prospective." See In re Deposit
Ins. Agency, 482 F.3d 612, 618 (2d Cir. 2007) (quotations and citations omitted); see also Santiago v. New York
State Dep't of Corr. Serv., 945 F.2d 25, 32 (2d Cir. 1991) (holding that such claims, however, cannot be brought
directly against the state, or a state agency, but only against state officials in their official capacities). In this
case, plaintiff's proposed amended pleading does not allege facts which plausibly suggest the existence of an
ongoing violation of law or the Constitution. See generally, Dkt. No. 17.

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response.5 Accordingly, plaintiff's motion to amend is granted to the extent plaintiff seeks to
add the aforementioned officials as defendants and assert Eighth Amendment failure-tointervene claims against them based on alleged events that occurred on April 9, 2018. In so
ruling, the Court expresses no opinion as to whether these claims can withstand a properly
filed dispositive motion.6
In light of the foregoing, the Clerk is directed to do the following: (1) attach the first
page of plaintiff's proposed amended pleading (Dkt. No. 17 at 2) after what is currently page
four of the amended complaint; (2) attach the second page of plaintiff's proposed amended
pleading (Dkt. No. 17 at 3) after what is currently page eight of the amended complaint; (3)
attach page five of the proposed amended pleading after the signature page of the amended
complaint; (4) docket the combined pleading as the second amended complaint; and (5) add
Corrections Officer B. Chevier, Corrections Officer Z. Holmes, and Corrections Officer W.
Hoffnagle to the docket as defendants.
IV.

MOTION FOR CLASS CERTIFICATION
Plaintiff requests that the Court "certify this lawsuit as a class action lawsuit[,]" with the

class members comprised of "all incarcerated individuals whom [sic] has [sic] been physically
injured because of the force deriving from the correction officers[.]" See Motion for Class
5

The legal standard governing Eighth Amendment excessive force and failure-to-intervene claims was
discussed at length in the October 2021 Order, and will not be restated herein. See October 2021 Order at 6-9.
6
Plaintiff expressly alleges in the amended complaint that he exhausted his administrative remedies
with respect to his claims arising out of the use-of-force incident that occurred on April 9, 2018. See Am. Compl.
at 8. Moreover, the law is well-settled that the three-year statute of limitations period applicable to Section 1983
claims is tolled while an inmate-plaintiff is exhausting his administrative remedies. See Gonzalez v. Hasty, 651
F.3d 318, 323 (2d Cir. 2011). As a result, the Court has assumed, for purposes of this Decision and Order only,
that plaintiff's proposed new claims were timely when plaintiff filed his motion to amend. In the event plaintiff had
fully exhausted his claims arising out of the use-of-force incident that occurred on April 9, 2018, more than three
years before the date that he filed his proposed amended pleading, defendants may file a motion to dismiss on
statute of limitations grounds, at which time the Court will consider the applicability of the relation back doctrine.

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Certification at 1.
It is well settled that a class action cannot be maintained by a pro se litigant because
non-attorneys may not represent anyone other than themselves. See, e.g., Miller v. Zerillo,
No. 07-CV-1719, 2007 WL 4898361, at *1 (E.D.N.Y. Nov. 2, 2007) (citing cases and
recommending denial of class certification without prejudice until an attorney makes an
appearance); see also Iannaccone v. Law, 142 F.3d 553, 558 (2d Cir. 1998); 28 U.S.C. §
1654. Moreover, plaintiff's request for class certification does not satisfy the requirements of
Rule 23 of the Federal Rules of Civil Procedure. Accordingly, plaintiff's request for class
certification is denied.
Until such time as a motion seeking certification of the proposed class is properly filed,
and demonstrates that the requirements of Rule 23 of the Federal Rules of Civil Procedure
have been satisfied, this action shall be considered only as an action brought by plaintiff in his
individual capacity.
V.

SERVICE REQUEST
Plaintiff has filed a letter motion requesting an order that (1) the Clerk send him four

blank U.S. Marshals forms (USM-285 Forms) for his completion, and (2) the Court, upon
receipt of these completed forms, direct to the U.S. Marshals Service to attempt service on
defendants Toohill, Patrick, Davey, and Tourville. See Service Request.7 Plaintiff's letter
motion is granted to the extent that he requests blank USM-285 forms. Because three new
defendants have been added to this proceeding in accordance with this Decision and Order,

7

As noted in the October 2021 Order, plaintiff is responsible for serving the summons and operative
pleading on the surviving defendants because his request to proceed in forma pauperis has been denied. See
October 2021 Order at 13.

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the Clerk is directed to send plaintiff seven blank USM-285 forms for his completion. The
Clerk is further directed to issue a summons for the seven defendants, which reflects
plaintiff's current address.
In addition to returning a completed USM-285 form for each of the remaining seven
defendants, and seven copies of the summons and second amended complaint, plaintiff must
also send the Clerk the service fee for the three newly added defendants.8 Upon receipt of
plaintiff's payment of the outstanding service fee amount and the documents required for
service, the U.S. Marshals Service shall be directed to attempt to serve the summons and
second amended complaint upon defendants Toohill, Patrick, Davey, Tourville, Chevier,
Holmes, and Hoffnagle in accordance with Rule 4 of the Federal Rules of Civil Procedure.

VI.

CONCLUSION
WHEREFORE, it is hereby
ORDERED that plaintiff's Motion for Reconsideration (Dkt. No. 18) is DENIED; and it is

further
ORDERED that plaintiff's motion to amend (Dkt. No. 17 at 1) is GRANTED IN PART
and DENIED IN PART as set forth above; and it is further
ORDERED that the Clerk shall do the following: (1) attach the first page of plaintiff's
proposed amended pleading (Dkt. No. 17 at 2) after what is currently page four of the

8

Payment in cash or by personal check is not acceptable. For service by mail, the fee is $8.00 per
summons and amended complaint. The cost of service by mail on the surviving defendants in this action is
therefore $56.00. Since plaintiff has already paid $32.00, the outstanding service fee amount is $24.00. Plaintiff
is also advised that, if initial service is unsuccessful, he will be required to pay the U.S. Marshal any additional
fee, also in advance, for subsequent service attempts according to the fee schedule set by the U.S. Marshal.

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amended complaint; (2) attach the second page of plaintiff's proposed amended pleading
(Dkt. No. 17 at 3) after what is currently page eight of the amended complaint; (3) attach
page five of the proposed amended pleading after the signature page of the amended
complaint; (4) docket the combined pleading as the second amended complaint; and (5) add
Corrections Officer B. Chevier, Corrections Officer Z. Holmes, and Corrections Officer W.
Hoffnagle to the docket as defendants; and it is further
ORDERED that plaintiff's official capacity claims against defendants Chevier, Holmes,
and Hoffnagle are DISMISSED with prejudice pursuant to 28 U.S.C. § 1915A(b) as barred
by the Eleventh Amendment;9 and it is further
ORDERED that plaintiff's Eighth Amendment failure-to-intervene claims against
defendants Chevier, Holmes, and Hoffnagle, along with plaintiff's Eighth Amendment claims
against defendants Toohill, Patrick, Davey, and Tourville, SURVIVE sua sponte review; and it
is further
ORDERED that plaintiff's motion for class certification (Dkt. No. 19) is DENIED; and it
is further
ORDERED that plaintiff's Service Request (Dkt. No. 15) is GRANTED to the extent
that plaintiff requests blank USM-285 forms for his completion; and it is further
ORDERED that the Clerk shall issue a summons for the seven defendants, which
reflects plaintiff's current address, and send him a copy of that summons, along with a copy

9

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

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of the second amended complaint and seven blank USM-285 forms for his completion. The
Clerk shall also forward a copy of the summons and second amended complaint by mail to
the Office of the New York State Attorney General, together with a copy of this Decision and
Order; and it is further
ORDERED that plaintiff shall have thirty (30) days from the date of this Decision and
Order to return to the Court a completed USM-285 form for each defendant, along with seven
copies of the summons and second amended complaint, and the outstanding amount of the
applicable service fee, which is $24.00;10 and it is further
ORDERED that upon receipt of plaintiff's payment of the outstanding service fee
amount and the documents required for service, the U.S. Marshals Service shall be directed
to attempt service of the summons and second amended complaint upon defendants Toohill,
Patrick, Davey, Tourville, Chevier, Holmes, and Hoffnagle in accordance with Rule 4 of the
Federal Rules of Civil Procedure; and it is further
ORDERED that, if plaintiff requests service by the U.S. Marshal, he must comply with
any additional requests from the U.S. Marshal for documents that are necessary to effectuate
service, and must provide payment in advance to the U.S. Marshal for any subsequent
service attempt if the original attempt to serve any defendant is unsuccessful; and it is further
ORDERED that upon the completion of service, a response to the second amended
complaint be filed by defendants Toohill, Patrick, Davey, Tourville, Chevier, Holmes, and
Hoffnagle, or their counsel, as provided for in the Federal Rules of Civil Procedure; and it is
further

10
Plaintiff may, if he so chooses, make copies of his second amended complaint for service on
double-sided paper.

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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 all 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 may result in the dismissal of
this action; and it is further
ORDERED that the Clerk shall serve a copy of this Decision and Order on plaintiff.
IT IS SO ORDERED.
Dated: November 18, 2021
Albany, NY

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