Toliver v. Department of Corrections et al

Filing 66

ORDER ADOPTING REPORT AND RECOMMENDATIONS: for 22 Motion to Dismiss filed by Commissioner of the Department, Chief of the Department, Warden of G.R.V.C., Department of Corrections, D.H.S. Coropartion- Prison Health Services, 51 Report and Recomme ndations. Defendants' motion to dismiss [Dkt. No. 22] is GRANTED, and Plaintiff's motion to amend is GRANTED IN PART. Plaintiff is directed to file an amended complaint with the Clerk of the Court within 45 days of the date of this order. The amended complaint must (1) comply with the substance of this order, (2) be captioned as an "Amended Complaint," and (3) bear the same docket number as this order. An Amended Civil Rights Complaint form, which Plaintiff should complete a s specified above, is attached to this order. If Plaintiff fails to comply with the Court's directive and cannot show good cause to excuse such failure, the Court will dismiss the case with prejudice for failure to state a claim upon which relie f may be granted. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).(Signed by Judge Loretta A. Preska on 9/29/2012) Copies Mailed By Chambers to Litigant. (djc)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
______

--

-

-------

-

------X

10 Civ. 6298 (LAP) (JCF)

MICHEL TOLIVER,

ORDER ADOPTING REPORT
AND RECOMMENDATION

Plaintiff,
v.

USDCSDNY

DEPARTMENT OF CORRECTIONS
ET AL. ,

DOCtThffiNT

I

ELECfRONICAlLY FILED·
DOC#:

Defendants.

DATE FI·~iE::"'·'D--:---:'1rZ-;l-o-Z-I;J,.-

------x

LORETTA A. PRESKA, Chief United States District Judge:
iver ("Plaintiff"), proceeding pro se,

Michel

brings this action pursuant to 42 U.S.C.

§

1983 against the New

York City Department of Corrections ("DOC"), various DOC
employees, and Prison Health Services, Inc.
(collectively,

("PHS")

1

"Defendants") alleging that constitutional

violations occurred from May 5, 2010, to June I, 2010, while
Plaintiff was housed as an inmate at the George R. Vierno Center
( "GRVC") on

kers Island.

On June 7, 2011, pursuant to Federal

Rules of Civil Procedure 12(b) (1) and (6), Defendants moved to
dismiss

complaint primarily on the grounds that the

complaint fails to state a claim against PHS and fails to

lege

the personal involvement of any of the individually named
Defendants.
PHS is "a private corporation that contracts with the City of
New York to provide medical and mental
th care to the city's
inmate population.
White v. Rosenberg, No. 07 Civ. 1807, 2010
WL 423055, at *1 (S.D.N.Y. Feb. 3, 2010).
1

II

Plaintiff l in turn l wrote the Court on June 141 2011 1
seeking leave to file an amended complaint, a proposed copy of
which he included with his letter.

The amended complaint adds

as additional Defendants the City of New York (the "City")
PHS employee

I

and additional DOC employees.

I

a

On August 51 2011 1

Defendants filed a reply memorandum of law in which they
primarily argue the amended complaint should be dismissed
because it too fails to state a complaint against PHS or any of
the individually named Defendants.
however

I

Defendants do not oppose

I

Plaintiff's motion to amend to the extent it seeks to

state a claim for damages against the City arising out of the
alleged loss of Plaintiff's property upon his entry into a
punitive segregated housing unit within GRVC.
In a letter to the Court dated September 28, 2011 (but
stamped as received on September 16

1

2011), Plaintiff offered a

"supplementary amended complaint" in which he supplements his
claim for lost property against the City and adds a section
entitled "Explanation as to Why Each Defendant is Being Sued.

II

Defendants responded to the supplementary amended complaint on
December 2, 2011, maintaining that Plaintiffls latest attempt
still fails to state a claim against PHS and many of the
individually named Defendants and that certain allegations
pertaining to other individually named Defendants are
duplicative of claims asserted against them by Plaintiff in
2

other actions.

Defendants

so reiterated they remained

unopposed to Plaintiffls adding the City as a Defendant.
On April

41

2012, this case was reassigned to the

undersigned l and the pending motions were referred to Magistrate
Judge Francis.

On April 10, 2012, Judge Francis issued a Report

and Recommendation (the "R&R") granting in part Plaintiffls
motion to amend and granting the defendants' motion to dismiss
[see Dkt. No. 51].

Plaintiff timely filed objections [Dkt. No.

55], to which the defendants timely responded [Dkt. No. 59].
Instead of objecting to the conclusions in the R&R
that were based on the facts as alleged in the three different
complaints Plaintiff submitted in this case
uses his objections to allege new facts.
court "may

l

Plaintiff primarily

Although a district

. receive further evidence" in reviewing

objections to a report and recommendation, see 28 U.S.C.
§

636(b) (1), doing so "is disfavored absent a 'most compelling

reason' for the failure to present such evidence or arguments in
the first instance."

Black v. Herbert, No. 02 Civ. 6252, 2009

U.S. Dist. LEXIS 35047, at *7 (S.D.N.Y. Apr. 23, 2009)

(quoting

Housing Works, Inc. v. Turner, 362 F. Supp. 2d 434, 438
(S.D.N.Y. 2005».
Here, Plaintiff provides no reason, let alone a
compelling one, as to why his newest allegations submitted in
connection with his objections to the R&R should be considered.
3

Although

se pI

~-----

iffs generally should be provided an

opportunity to amend
failure to state a

r complaints prior to dismissal for
aim, see Chavis v. Chappius, 618 F.3d 162,

170 (2d Cir. 2010),

this case Plaintiff has had no fewer than

three bites at the

e.

Not only that, but Defendants put

Plaintiff on notice as to

ir various theories of dismissal of

Plaintiff's claims,

Plaintiff fails to plead the

individually named Defendants' personal involvement in the
claimed constitutional violat

, before the instant motions

were referred to Judge Francis.

And

complaint evidences at least

supplementary amended

s theory was not lost on

Plaintiff given it contains the "Explanation as to Why Each
Defendant

1S

Being Sued" section and

s pertaining to certain

individuals' participation in alleged wrongdoings.
Nevertheless, Plaintiff's latest compl

still fails to allege

properly the named Defendants' personal involvement in the
claims at issue in this case.

Accordingly, with respect to

those claims the R&R recommends should be di

ssed, Plaintiff

will not be granted leave to amend.
Having reviewed the R&R, Plaintiff's object
Defendants' response and finding Judge Francis's analysis to
correct and appropriate upon de novo review, see Fed. R. Civ. P.
72(b), the R&R is hereby adopted to the following extent:

4

(1)

Defendants' motion to dismiss Plaintiff's claims

against DOC is GRANTED.
(2)

Defendants' motion to dismiss Plaintiff's claims

against Commissioner Schriro and Chief Davis is GRANTED.
(3)

Defendants' motion to dismiss Plaintiff's claims

against Warden Mulvey is GRANTED.
(4)

Defendants' motion to dismiss Plaintiff's claims

against PHS is GRANTED.
(5)

Defendants' motion to dismiss Plaintiff's claims

that he was denied access to a working typewriter in the law
library, telephone privileges upon entering punitive
segregation, and access to a chaplain is GRANTED.
(6)

Plaintiff's motion to amend his complaint to add

Captain Garcia, Captain Dunbar, and Assistant Deputy Warden
Lobmardi is DENIED.
(7)

Plaintiff's motion to amend his complaint to add

Phillip Keeplings is DENIED.
(8)

Plaintiff's motion to amend his complaint to

assert a claim for money damages against the City of New York
for its alleged policy of failing to voucher inmates' property
upon their entry into segregated housing is GRANTED. 2

On September 24, 2012, Defendants wrote the Court seeking leave
to supplement their motion to dismiss to add failure to exhaust
as an additional ground for dismissal.
"Exhaustion of
(cont'd on next page)

2

5

CONCLUSION
Defendants' motion to dismiss [Dkt. No. 22] is
GRANTED, and Plaintiff's motion to amend is GRANTED IN PART.
Plaintiff is directed to file an amended complaint with the
Clerk of the Court within 45 days of the date of this order.
The amended complaint must (1) comply with the substance
order,

(2) be captioned as an "Amended Complaint

the same docket number as this order.
Complaint form

l

which PI

I

II

this

and (3) bear

An Amended Civil Rights

iff should complete as specified

above, is attached to this order.

If Plaintiff

Is to comply

with the Court/s directive and cannot show good cause to excuse
such failure, the Court will dismiss the case with prejudice for
failure to state a claim upon which relief may be granted.
The Court certifies
§

1915(a) (3)

I

l

pursuant to 28 U.S.C.

that any appeal from this order would not be taken

(cont/d from previous page)
administrat
remedies is an affirmative
that
defendants bear the burden to raise and prove.
Land v.
Kaufman, No. 07 Civ. 8070, 2009 WL 1106780 at *5 (S.D.N.Y. Apr.
23, 2009).
to exhaust may be excused when a defendant
waives the
Ruggiero v. County of Orange, 467 F.3d 170,
175 (2d Cir. 2006)
Here, given that Defendants seek to invoke
the affirmative defense of failure to exhaust after an R&R was
issued on Defendants' motion to dismiss, the Court finds that
Defendants have waived the defense. To hold otherwise would be
especially unwarranted in light of Defendants' express
concession that Plaintiff should be granted leave to add a claim
against
City; Defendants' request to "supplement" their
motion to dismiss when Judge Francis
already recommended it
be granted in its entirety suggests Defendants are having second
thoughts on this issue.
II

1

6

in good faith, and therefore
the purpose of an appeal.
369 U.S. 438,

444-45

status is denied
See Coppedge v. United States,

(1962).

SO ORDERED.
Dated: New York, New York
September 29, 2012

7

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

(in the space above enter lheJlI.1l name($) oJthe plainliff(s).}

AMENDED
COMPLAINT
under the Civil Rights Act,
42 U.S.C. § 1983

-agalnst­

Jury Trial:

0

Yes

o No

(check onc)

Civ. _ _ _ _ (

)

(in the spaCfJ above enter theJull name(s) ojthe deJendalll(s}. iJyou
cannot fit the names ojall ojthe deJendants in the space pro'llided.
please write "SIIe attached" in the space above and attach an
additional sheet oj paper with the Jull list oj names. The n-ames
listed in the above captioll must be identical to thQtle con rained in
Part I. A.ddresses should nat be included here.}

I.

Parties io this complaint:

A.

List your name, identification number, and the name and address of your current place of
confinement. Do the same for any additional plain tiffs named. Attach additional sheets of paper
as necessary.

Plaintifrs
ID#____________________

~~_

Current Institution____________________________
Address__________________________________________________

B.

List all defendants' names, positions, places of employment, and the address where each defendant
may be served. Make sure that the defendant(s) listed below are identical to those contained in the
above caption. Attach additional sheets of paper as necessary.

Defendant No.1

Name ______________________ Shield #_______
Where Currently Employed ______________________
Address

Rev. 0112010

~_ _ _ _ __

1

Defendant No. 2

Name _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Shield
Where Currently Employed ____._ _ _... ______
Address

Defendant No.3

_ _ _ _ _ _ _ _ _ _ Shield " _ _ __
Name
Where Currently Employed ______________________
Address ______________________________

Defendant No.4

Name _______________________ Shield #_ _ __
Whcre Currently Employed ____________________
Address ____________

Defendant No.5

Name ____________________ ~_____ Shield

Where Currently Employed _____________________

Address ___________________________________

II.

Statement of Claim:

State as briefly as possible the facts of your case. Describe how each of the defendants named in the
caption oftbis complaint is involved in this action, along with the dates and locations of all relevant events.
You may wish to include further details such as the names of other persons involved in the events giving
rise to your claims. Do not cite any cases or statutes. If you intend to aUege a number of related claims.
number and set forth each claim in a separate paragraph. Attach lIodditional sheets of paper as necessary.

A.

In what institution did the events giving rise to your claim(s) oc.cur?

B.

Wh.ere in the institution did the events giving rise to your claim(s) occur?

C.

What date and approximate time did the events giving rise to your claim(s) occur?

D.

Facts: _ _ _ _ _ _ __

Rev. 0112010

2

--------~----------------------------------.------

WU:

,II.

••)"DBI

ID.ol.,dr

III.

Injuries:

If you sus.tained injuries related to the events alleged above. describe them and state what medical
treatment, if any. you required and received.

----------------------------------------------------------

IV.

Exbaustion of Administrative Remedies:

The Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(a), requires that "[n]o action shall be
brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a
prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are
available are exhausted." Administrative remedies are also known as grievance procedures.
A.

Did your claim(s) arise while you were confined in ajail, prison, or other correctional facility?
Yes

Rev.OJ/20ID

No

3

If YES, name the jail, prison, or other correctional facility where you were confined at tbe time of the
events giving rise to your cJaim(s).

B.

Does the jail, prison or other correctional facility where your claim(s) arose have a grievance
procedure?
Yes

C.

No

Do Not Know

Does the grievance procedure at the jail, prison or other correctional facility where your claim(s)
arose cover some or all of your claim(s)?
Yes

No

Do Nol Know

If YES, which claim(s)?

D.

Did you file a grievance in the jan, prison. or other correctional facility where your claim(s) arose?
Yes

No

If NO, did you file a grievance about Ihe events described in this complaint al any other jail,
prison, or other correctional facility?

Yes
E.

No

If you did file a grievance, about the events described in this complaint, where did you file the
grievance?

1.

Which claim(s) in this complaint did you grieve?

2.

What was the result, if any?

3.
Wflat steps, if any, did you take to appeal that decision? Describe all efforts to appeal to
Ihe highest level of the grievance process.

F.

If you did not file a grievance:

L

Rev. 0112010

If there are any reasons why you did not file a grievance, stale them here:

4

2.

If you did not file a grievance but informed any officials of your claim, state who you
informed, when and how, and their response, if any:

G.

Please set forth any additional information that is relevant to the exhaustion of your administrative
remedies.

Note:

You may attach as exhibits to this complaint any documents related to the exhaustion of your
administrative remedies.

V.

Relief:

State what you want the Court to do for you (including the amount of monetary compensation, if any. that
you are seeking and the basis for such amount).

Rev. 0112010

5

VI.
On

Previous lawsuits:

A.

Have you filed other lawsuits in state or federal court dealing with the same facts involved in this
action?

these
claIms

Yes

B.

No

lfyour answer to A is YES, describe each lawsuit by answering questions I through 7 below. (If
there is more than one lawsuit, describe the additional lawsuits on another sheet of paper, using
the same format.)
1.

Parties to the previous lawsuit:

Plaintiff _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
Defendants
2.Court (if federal court, name the district; if state court, name the county)
_ _3.
_ _ _4.

Docket or Index number
Name of JudGe assigned to your case_ _ _ _ _ _ _ _ _ _,_ _ _ _ _ _ _ _ __

5.

C.

Is the case still pending? Yes

No
If NO, give the approximate date of disposition,_ _ _ _ _ _ _ _ _ _ _ _ _ _ __

7.

On
otbn

Approximate date of filing lawsuit

6.

What was the result of the case? (For example: Was the case dismissed? Was there
judgment in your favor? Was the case appealed?) _______________

Have you filed other lawsuits in state or federal court otherwise relating to your imprisonment?
Yes

(lah"1

D.

No

{fyour answer to C is YES, describe each lawsuit by answering questions I through 7 below. (If
there is more than one lawsuit, describe the additional lawsuits on another piece of paper, using
the same format.)
I.

Parties to the previous lawsuit:

Plaintiff _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
Defendants
2.

_ _ _3.
_ _ _4.
5.
Rev. 0112010

Court (if federal court, name the district; if state court, name tbe county)
Docket or Index number _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
Name of Judge assigned to your case_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
Approximate date of filing lawsuit

6

6.

Is the case still pending? Yes __ No
If NO, give the approximate date of

7.

What was the result of the case? (For example: Was the case dismissed? Was there
judgment in your favor? Was the case appealed?)

I declare under penalty or perjury that the foregoing is true and correct.
Signed this _

day of _ _ _ _ _---', 20_.
Signature of Plaintiff
Inmate Number
Institution Address

Note: All plaintiffs named in the caption of the complaint must dale and sign the complaint and provide
their inmate numbers and addresses.
I declare under penalty of perjury that on this _ _ day of

.20_. I am delivering

this complaint to prison authorities to be mailed to the Pro Se Office of the United States District Court for
the Southern District of New York.

Signature of Plaintiff:

Rev. 0111010

7