Acevedo v. Fischer et al
Filing
133
OPINION AND ORDER re: 93 MOTION to Dismiss Second Amended Complaint filed by Tim Ward, 98 MOTION to Dismiss filed by El Hadji Gueye, McDonahue, Ely, Russo, Buntz, DeDazizo, Glass, Long, C. Karson, William A. Lee, La Frese, Pushpa Patil, Jordon, Brian Fischer, Batiell, Lyons, Gardiner, Warrington, Patrick J. Griffin, Henschel. As set forth within, Defendants' motions to dismiss are granted in part and denied in part. Specifically, all of P laintiff's claims against all Defendants - with the exception of his First Amendment interference with mail claims against Defendants Geiss, Lee, and Warrington - are dismissed. The Court also declines to dismiss the First Amendment mail monitor ing claim against Serrano, at least at this stage. Consistent with the accompanying Order, Acevedo shall submit the appropriate forms in order to effect service upon Serrano. Additionally, by way of separate Order, the Court is referring the case to Magistrate Judge Dolinger for General Pretrial. The Clerk of Court is respectfully requested to close the motions pending at docket numbers 93 and 98, and to terminate all Defendants from the case with the exception of Defendants Lee, Geiss, Serrano, and Warrington. SO ORDERED. (See Order.) (Signed by Judge Ronnie Abrams on 9/29/2014) (ajs)
"It is well settled that, in order to establish a defendant's individual liability in a suit
brought underĀ§ 1983, a plaintiff must show, inter alia, the defendant's personal involvement in
the alleged constitutional deprivation." Grullon v. City of New Haven, 720 F.3d 133, 138 (2d
Cir. 2013 ). "Both the Court of Appeals and numerous district courts in this Circuit have
repeatedly held that receipt of letters or grievances is insufficient to impute personal
involvement. Were it otherwise, virtually every prison inmate who sues for constitutional torts
by prison officials could name the supervisor as a defendant since the plaintiff must pursue his
prison remedies, and invariably the plaintiffs grievance will have been passed upon by the
supervisor." Harris v. Fischer, 11 CIV. 6260 CM JLC, 2014 WL 3859242, at *3 (S.D.N.Y. Aug.
1, 2014).
Here, Acevedo alleges only that the Defendants failed to act on or investigate his
grievances and other appeals. Moreover, although he suggests that several of the Defendants
were "participant[s]" or had "joined"-he does not specify precisely what they had joined-he
does not allege any facts supporting these conclusory and speculative allegations. Even
assuming Acevedo is alleging that these individuals "joined" in harassment or verbal abuse, such
claims are not actionable underĀ§ 1983. See Toliver v. New York City Dep't of Corr., 10 CIV.
822 RJS JCF, 2013 WL 3779125, at *14 (S.D.N.Y. July 8, 2013). The claims against these
Defendants are thus dismissed.
8.
Leave to Amend
Having concluded that all of Acevedo's claims should be dismissed-with the exception
of his interference with mail claims against Lee, Geiss, Serrano, and Warrington-the Court
finally must consider whether it should grant him leave to amend.
"Generally, leave to amend should be freely given, and a pro se litigant in particular
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should be afforded every reasonable opportunity to demonstrate that he has a valid claim."
Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014). A prose complaint in particular "should not
be dismissed without the Court granting leave to amend at least once when a liberal reading of
the complaint gives any indication that a valid claim might be stated." Id. Whether to grant or
deny leave to amend is committed to the "sound discretion of the district court," and leave may
be denied "for good reason, including futility, bad faith, undue delay, or undue prejudice to the
opposing party." McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir. 2007).
Here, the Court has already given Acevedo two opportunities to amend his complaint.
(ECF Nos. 7, 38.) Considered together, the SAC and Acevedo's opposition total more than eight
hundred pages. Moreover, in its Order granting Plaintiff leave to file the SAC, the Court warned
that "[n]o further opportunities to amend shall be granted absent a showing of good cause."
(ECF No. 38.) Accordingly, the Court declines to grant Acevedo leave to file a Third Amended
Complaint. See Best v. City ofNew York, 12 CIV. 7874 RJS SN, 2014 WL 163899, at *3
(S.D.N.Y. Jan. 15, 2014) (declining to grant leave to amend, where plaintiff had already been
given two opportunities to do so, and noting that "the Court can only afford [Plaintiff] so many
bites at the apple"); Parker v. DeBuono, 98 CIV. 5765 (NRB), 2000 WL 223841 (S.D.N.Y. Feb.
25, 2000), aff'd sub nom. Parker v. Com'r DeBuono, 242 F.3d 366 (2d Cir. 2000) ("Leave to
amend is appropriately denied where, as here, plaintiff has already had two opportunities to
replead and the benefit of specific warnings as to his complaints' deficiencies.").
CONCLUSION
Defendants' motions to dismiss are granted in part and denied in part. Specifically, all of
Plaintiff's claims against all Defendants-with the exception of his First Amendment
interference with mail claims against Defendants Geiss, Lee, and Warrington-are dismissed.
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The Court also declines to dismiss the First Amendment mail monitoring claim against Serrano,
at least at this stage. Consistent with the accompanying Order, Acevedo shall submit the
appropriate forms in order to effect service upon Serrano.
Additionally, by way of separate Order, the Court is referring the case to Magistrate
Judge Dolinger for General Pretrial.
The Clerk of Court is respectfully requested to close the motions pending at docket
numbers 93 and 98, and to terminate all Defendants from the case with the exception of
Defendants Lee, Geiss, Serrano, and Warrington.
SO ORDERED.
Dated:
September 29, 2014
New York, New York
Ro nie Abrams
United States District Judge
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