Shaw v. Annucci et al

Filing 21

DECISION AND ORDER: It is ORDERED that Plaintiff's amended complaint (Dkt. No. 19 ) is DISMISSED with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and 28 U.S.C. § 1915A(b)(1) for failure to state a claim upon which relief may be granted; and the Clerk of the Court is directed to serve a copy of this Decision and Order on plaintiff. Signed by Judge David N. Hurd on September 8, 2021. (Copy served via regular mail on plaintiff)(rep)

Case 9:21-cv-00471-DNH-ATB Document 21 Filed 09/08/21 Page 1 of 5

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

ALLEN SHAW,
Plaintiff,

9:21-CV-0471
(DNH/ATB)

v.
ANTHONY J. ANNUCCI, Acting
Commissioner, D. VENETTOZZI,
Director, Special Housing, and
JAMES O'GORMAN, Deputy
Commissioner,
Defendants.

APPEARANCES:
ALLEN SHAW
15-A-4202
Plaintiff, pro se
Great Meadow Correctional Facility
Box 51
Comstock, NY 12821
DAVID N. HURD
United States District Judge
DECISION AND ORDER
I. INTRODUCTION
On April 26, 2021, pro se plaintiff Allen Shaw ("Shaw" or "plaintiff") commenced this
civil rights action by filing a complaint. Dkt. No. 1. On July 20, 2021, the Court issued a
Decision and Order granting plaintiff's applications to proceed in the action in forma pauperis
("IFP"). Dkt. No. 16 ("July Order") at 10. However, the July Order conditionally dismissed
plaintiff's complaint without prejudice pursuant to 28 U.S.C. § 1915 (" Section 1915") and 28
U.S.C. § 1915A ("Section 1915A") for failure to state a claim upon which relief may be

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granted unless he submitted an amended complaint correcting the pleading defects identified
with his complaint. Id. The Court has since received from plaintiff an amended complaint,
Dkt. No. 19 ("Am. Compl."), which has been accepted for filing and forwarded for review.
II. REVIEW OF PLAINTIFF'S AMENDED COMPLAINT1
Like the original pleading, Shaw's amended complaint is not a model of clarity. Based
on the allegations in the amended complaint, it appears that plaintiff was incarcerated in
Great Meadow Correctional Facility ("Great Meadow C.F.") at all times relevant to this
action. See Am. Compl. at 7 (describing that plaintiff was issued an inmate misbehavior
report by defendant A. Griffin, who is identified as a Great Meadow C.F. Correctional Officer).
The amended complaint names the following individuals as defendants: (1) New York
State Department of Corrections and Community Supervision ("DOCCS") Acting
Commissioner Anthony J. Annucci; (2) DOCCS Direct of Special Housing D. Venettozzi;
(3) DOCCS Deputy Commissioner James O'Gorman; (4) Great Meadow C.F. Correctional
Officer A. Griffin; and (5) Great Meadow C.F. Correctional Officer Supervisor C.
Thompson. See id. at 2-3, 6. The following facts are as alleged in the complaint.
During a superintendent's hearing at Great Meadow C.F., Shaw submitted some
affidavits. Am. Compl. at 6. He similarly submitted an affidavit in connection with an
appeal. Id. According to plaintiff, "[t]here was given 3 opportunitys for the Acting
Commissioner, Deputy Commissioner, Director, Special Housing and/or who it may concern
to give a answer and they fail to do so." Id. (errors in original).
During the hearing, Shaw alleges he "was force[d] into a contract," despite telling the

1
The legal standard governing the review of a pro se inmate-plaintiff's complaint pursuant to Sections
1915 and 1915A was discussed at length in the July Order. See July Order at 3-4.

2

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hearing officer that he did not "wish to do business nor enter into a contract with him or/and
his place of business." Id. (internal quotation marks omitted). Plaintiff was "place[d] in
confinement for 60 days" as punishment "for not entering into a contract." Id. at 7. Plaintiff's
complaint asserts due process and malicious prosecution claims against the defendants.
See id. at 6.
A. Analysis
Even liberally construed, Shaw's amended complaint fails to assert a cognizable
cause of action.
1. Procedural Due Process
To the extent that plaintiff attempts to assert a procedural due process claim related to
his allegations that he was "place[d] in confinement for 60 days," Am. Compl. at 7, that claim
must be dismissed for the same reasons as those stated in the July Order with respect to the
procedural due process claim asserted in the original complaint. See July Order at 6-9.
Plaintiff's amended complaint alleges no new facts that would correct the pleading
deficiencies already identified in the July Order.
2. Malicious Prosecution
To state a plausible malicious prosecution claim under 42 U.S.C. § 1983 ("Section
1983")2 or New York law, a complaint must plausibly allege "(1) the initiation or continuation
of a criminal proceeding against [the] plaintiff; (2) termination of the proceeding in [the]
plaintiff's favor; (3) lack of probable cause for commencing the proceeding; and (4) actual
malice as a motivation for defendant's actions." Manganiello v. City of N.Y., 612 F.3d 149,

2

The Court has assumed for purposes of this Decision and Order that the malicious prosecution claims
are brought under both state and federal law.

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161 (2d Cir. 2010) (internal quotation marks omitted); accord Kee v. City of N.Y., 2021 WL
3852241, at *7 (2d Cir. Aug. 30, 2021). To establish a Section 1983 malicious prosecution
claim, a plaintiff must also allege that the defendant was a state actor and identify a violation
of his Fourth Amendment rights. Manganiello, 612 F.3d at 161; Spak v. Phillips, 857 F.3d
458, 461 n.1 (2d Cir. 2017).
Upon review, Shaw's amended complaint fails to plausibly allege any of the required
elements of a malicious prosecution claim. The amended complaint alleges only that plaintiff
became an unwilling party to an unspecified contract in connection with a "superintendent's
hearing" and an "appeal." See Am. Compl. at 6-7. These allegations do not plausibly
suggest that plaintiff was charged with a crime without probable cause or that a criminal
proceeding terminated in his favor. Moreover, there are no allegations that any of the
defendants acted with malice. Accordingly, plaintiff's malicious prosecution claims asserted
against the defendants are dismissed pursuant to Sections 1915(e)(2)(B)(ii) and 1915A(b)(1)
for failure to state a claim upon which relief may be granted.
III. CONCLUSION
Therefore, it is
ORDERED that
1. Plaintiff's amended complaint (Dkt. No. 19) is DISMISSED with prejudice
pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and 28 U.S.C. § 1915A(b)(1) f or failure to state a
claim upon which relief may be granted; and
2. The Clerk of the Court is directed to serve a copy of this Decision and Order on
plaintiff.

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IT IS SO ORDERED.

Dated: September 8, 2021
Utica, New York.

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