Rodriguez v. Blanding et al

Filing 5

ORDER TO AMEND: Plaintiff is granted leave to file an amended complaint that complies with the standards set forth above. Plaintiff must submit the amended complaint to this Court's Pro Se Intake Unit within 60 days of the date of this order, caption the document as an "Amended Complaint," and label the document with docket number 22-CV-7288 (LTS). An Amended Civil Rights Complaint form is attached to this order. No summons will issue at this time. If Plaintiff fails to comply within the time allowed, and he cannot show good cause to excuse such failure, Plaintiff's Section 1983 claims will be dismissed based on Eleventh Amendment immunity and for failure to state a claim upon which relief may be granted, and the Court will decline to exercise supplemental jurisdiction of Plaintiff's state law claims, which will be dismissed without prejudice to his refiling them in state court. The Court certifies under 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. Cf. Coppedge v. United States, 369 U.S. 438, 444-45 (1962) (holding that an appellant demonstrates good faith when he seeks review of a nonfrivolous issue). SO ORDERED. (Signed by Judge Laura Taylor Swain on 9/19/2022) (sac)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
DENNIS RODRIGUEZ,
Plaintiff,
-against-

22-CV-7288 (LTS)

S. BLANDING; DEPARTMENT OF
CORRECTIONS AND COMMUNITY
SUPERVISION,

ORDER TO AMEND

Defendants.
LAURA TAYLOR SWAIN, Chief United States District Judge:
Plaintiff, who is currently incarcerated at Upstate Correctional Facility, brings this pro se
action under 42 U.S.C. § 1983. He alleges that, when he was incarcerated at Sing Sing
Correctional Facility (Sing Sing), another prisoner assaulted him, causing him serious injuries.
By order dated August 29, 2022, the Court granted Plaintiff’s request to proceed in forma
pauperis (IFP), that is, without prepayment of fees. 1 For the reasons set forth below, the Court
grants Plaintiff leave to file an amended complaint within 60 days of the date of this order.
STANDARD OF REVIEW
The Court must dismiss an in forma pauperis complaint, or any portion of the complaint,
that is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks
monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B);
see Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998). The Court must
also dismiss a complaint when the Court lacks subject matter jurisdiction of the claims raised.
See Fed. R. Civ. P. 12(h)(3).

1

Prisoners are not exempt from paying the full filing fee even when they have been
granted permission to proceed in forma pauperis. See 28 U.S.C. § 1915(b)(1).

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While the law mandates dismissal on any of these grounds, the Court is obliged to
construe pro se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret
them to raise the “strongest [claims] that they suggest,” Triestman v. Fed. Bureau of Prisons, 470
F.3d 471, 474 (2d Cir. 2006) (internal quotation marks and citations omitted) (emphasis in
original). But the “special solicitude” in pro se cases, id. at 475 (citation omitted), has its limits –
to state a claim, pro se pleadings still must comply with Rule 8 of the Federal Rules of Civil
Procedure, which requires a complaint to make a short and plain statement showing that the
pleader is entitled to relief.
Rule 8 of the Federal Rules of Civil Procedure requires a complaint to include enough
facts to state a claim for relief “that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007). A claim is facially plausible if the plaintiff pleads enough factual detail to allow
the Court to draw the inference that the defendant is liable for the alleged misconduct. In
reviewing the complaint, the Court must accept all well-pleaded factual allegations as true.
Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). But it does not have to accept as true
“[t]hreadbare recitals of the elements of a cause of action,” which are essentially just legal
conclusions. Twombly, 550 U.S. at 555. After separating legal conclusions from well-pleaded
factual allegations, the Court must determine whether those facts make it plausible – not merely
possible – that the pleader is entitled to relief. Id.
BACKGROUND
Plaintiff Dennis Rodriguez alleges the following facts in his complaint. On June 23,
2022, Plaintiff was in the “A-block yard” at Sing Sing. (ECF 2 at 4.) He was taking out a
cigarette to roll, when another prisoner, S. Blanding, struck him from behind. The blow caused
Plaintiff to fall and hit his head on the toilet and the floor. Blanding then cut Plaintiff’s face with

2

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a “white cutting object.” (Id.) As a result of the assault, Plaintiff now cannot hear well in his right
ear, and he suffers from headaches.
The following day, Plaintiff reported the incident to Sing Sing officials. (Id.) Pictures
were taken of his face. Plaintiff contends that DOCCS has failed to provide “proper treatment.”
(Id.) He sues DOCCS and S. Blanding, for alleged violations of his constitutional rights, seeking
damages.
DISCUSSION
A.

Section 1983 Claims Against Prisoner Blanding
A claim for relief under Section 1983 must allege facts showing that each defendant acted

under the color of a state “statute, ordinance, regulation, custom or usage.” 42 U.S.C. § 1983.
Private parties therefore generally are not liable under the statute. Sykes v. Bank of America, 723
F.3d 399, 406 (2d Cir. 2013) (citing Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531
U.S. 288, 295 (2001)); see also Ciambriello v. Cnty. of Nassau, 292 F.3d 307, 323 (2d Cir. 2002)
(“[T]he United States Constitution regulates only the Government, not private parties.”).
Plaintiff alleges that the individual who assaulted him was another prisoner, Defendant S.
Blanding. Because Defendant Blanding is a private party, who was not acting as a state or other
government employee, Plaintiff cannot bring a claim against him under Section 1983. Plaintiff’s
federal claims against Defendant Blanding under Section 1983 are therefore dismissed without
leave to replead. 2

2

Nothing in this order prevents Plaintiff from including a supplemental state law claim
against a private party, such as Blanding, that arises from the same incident as his federal claim.
3

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B.

New York State DOCCS
Plaintiff contends that he received inadequate medical care for injuries that he suffered in

DOCCS custody. (ECF 2 at 4.) In addition, the allegations might be construed as a claim for
failure to protect him from assault. Plaintiff brings these Section 1983 claims against DOCCS,
which is a New York State agency. “[A]s a general rule, state governments may not be sued in
federal court unless they have waived their Eleventh Amendment immunity, or unless Congress
has abrogated the states’ Eleventh Amendment immunity . . . .” Gollomp v. Spitzer, 568 F.3d 355,
366 (2d Cir. 2009). “The immunity recognized by the Eleventh Amendment extends beyond the
states themselves to state agents and state instrumentalities that are, effectively, arms of a state.”
Id.
New York has not waived its Eleventh Amendment immunity to suit in federal court, and
Congress did not abrogate the states’ immunity in enacting Section 1983. See Trotman v.
Palisades Interstate Park Comm’n, 557 F.2d 35, 40 (2d Cir. 1977). The Eleventh Amendment
therefore bars Plaintiff from bringing his Section 1983 claims against DOCCS in federal court,
and these claims against DOCCS are dismissed. 3

3

A plaintiff can sue a state official in his or her official capacity, notwithstanding the
Eleventh Amendment, if the plaintiff “(a) alleges an ongoing violation of federal law and
(b) seeks relief properly characterized as prospective.” In re Deposit Ins. Agency, 482 F.3d 612,
618 (2d Cir. 2007) (citing Ex parte Young, 209 U.S. 123 (1908)); Berman Enterprises, Inc. v.
Jorling, 3 F.3d 602, 606 (2d Cir. 1993) (“[A]cts of state officials that violate federal
constitutional rights are deemed not to be acts of the state and may be the subject of injunctive or
declaratory relief in federal court.” (citing Kentucky v. Graham, 473 U.S. 159, 167 n. 14 (1985)).
Because Plaintiff is no longer incarcerated at Sing Sing, if he amends his complaint to assert
official-capacity claim(s) against Sing Sing officials, a claim for injunctive relief may be moot.
See Prins v. Coughlin, 76 F.3d 504, 506 (2d Cir. 1996) (“A case is deemed moot where the
problem sought to be remedied has ceased, and where there is no reasonable expectation that the
wrong will be repeated.”) (citations and quotations omitted).
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District courts generally should grant a self-represented plaintiff an opportunity to amend
a complaint to cure its defects, unless amendment would be futile. See Hill v. Curcione, 657 F.3d
116, 123-24 (2d Cir. 2011); Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988). Here, granting
leave to amend would not necessarily be futile because the Eleventh Amendment does not bar
claims against state employees in their personal capacities from proceeding in federal court. See,
e.g., Jorling, 3 F.3d at 606 (“[T]he eleventh amendment does not extend to a suit against a state
official in his individual capacity.”). If Plaintiff asserts in his amended complaint Section 1983
claims against individual DOCCS employees in their personal capacities, Plaintiff must name the
individual(s) in the caption of the complaint and describe in the body of the complaint what any
individual did or failed to do that violated his rights. See Spavone v. N.Y. State Dep’ t of Corr.
Serv., 719 F.3d 127, 135 (2d Cir. 2013) (“It is well settled in this Circuit that personal
involvement of defendants in the alleged constitutional deprivations is a prerequisite to an award
of damages under § 1983.”) (internal quotation marks omitted). To state a Section 1983 claim for
deliberate indifference to a risk of serious harm, Plaintiff must also allege facts under the
standards set forth below.
C.

Deliberate Indifference Claims Against Individuals in their Personal Capacities
The Eighth Amendment to the United States Constitution protects convicted prisoners

against deliberate indifference to conditions that pose a substantial risk of serious harm,
including protecting them against constitutionally inadequate medical care, Harrison v. Barkley,
219 F.3d 132 (2d Cir. 2000), or from harm caused by other prisoners, Fischl v. Armitage, 128
F.3d 50, 55 (2d Cir. 1997).
Deliberate indifference claims include an objective component and a subjective
component. Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011). The objective component requires
that a prisoner “show that the conditions, either alone or in combination, pose[d] an unreasonable
5

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risk of serious damage to his health.” Darnell v. Pineiro, 849 F.3d 17, 30 (2d Cir. 2017) (internal
quotation marks and citation omitted). The deliberate indifference standard “contemplates a
condition of urgency such as one that may produce death, degeneration, or extreme pain.”
Charles v. Orange Cnty., 925 F.3d 73, 86 (2d Cir. 2019); see Harrison, 219 F.3d at 136 (holding
that for a constitutional claim, the medical need must be a “sufficiently serious” condition that
“could result in further significant injury or the unnecessary and wanton infliction of pain”)
(internal quotation marks and citation omitted)).
The subjective component requires a prisoner to show that the defendant officials acted
with a “sufficiently culpable state of mind” in depriving him of adequate medical treatment,
Nielsen v. Rabin, 746 F.3d 58, 63 (2d Cir. 2014) (citing Salahuddin v. Goord, 467 F.3d 263, 280
(2d Cir. 2006)), or failing to protect him from a risk of harm from another prisoner. For an Eighth
Amendment claim, “the official must both be aware of facts from which the inference could be
drawn that a substantial risk of serious harm exists, and he must also draw the inference.”
Farmer, 511 U.S. at 837. Thus, an official is not liable under the Eighth Amendment for “failure
to alleviate a significant risk that he should have perceived but did not.” Id. In addition, the mere
negligence of a correctional official is not a basis for a claim of a federal constitutional violation
under Section 1983. See Daniels v. Williams, 474 U.S. 327, 335-36 (1986); Davidson v. Cannon,
474 U.S. 344, 348 (1986). The Court grants Plaintiff leave to replead his claims for deliberate
indifference to his serious medical needs or to a known risk of serious harm to him from
Defendant Blanding.
LEAVE TO AMEND
Because Plaintiff may be able to allege additional facts to state a valid claim against one
or more individual defendant(s), the Court grants Plaintiff 60 days’ leave to amend his complaint
to detail his claims. First, Plaintiff must name as the defendant(s) in the caption and in the
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statement of claim those individuals who were allegedly personally involved in the deprivation
of his federal rights. If Plaintiff does not know the name of a defendant, he may refer to that
individual as “John Doe” or “Jane Doe” in both the caption and the body of the amended
complaint. 4 The naming of John Doe defendants, however, does not toll the three-year statute of
limitations period governing this action, and Plaintiff is responsible for ascertaining the true
identity of any “John Doe” defendants and amending his complaint to include the identity of any
“John Doe” defendants before the statute of limitations period expires. 5
In the “Statement of Claim” section of the amended complaint form, Plaintiff must
provide a short and plain statement of the relevant facts supporting each claim against each
defendant. If Plaintiff has an address for any named defendant, Plaintiff must provide it. Plaintiff
should include all of the information in the amended complaint that Plaintiff wants the Court to
consider in deciding whether the amended complaint states a claim for relief. That information
should include:
a) the names and titles of all relevant people;
b) a description of all relevant events, including what each defendant did or failed to do,
the approximate date and time of each event, and the general location where each
event occurred;
c) a description of the injuries Plaintiff suffered; and
d) the relief Plaintiff seeks, such as money damages, injunctive relief, or declaratory
relief.

4

For example, a defendant may be identified as: “Correction Officer John Doe #1 on
duty August 31, 2020, at Sullivan Correctional Facility, during the 7-3 p.m. shift.”
5

Should Plaintiff seek to add a new claim or party after the statute of limitations period
has expired, he must meet the requirements of Rule 15(c) of the Federal Rules of Civil
Procedure.
7

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Essentially, Plaintiff’s amended complaint should tell the Court: who violated his
federally protected rights and how; when and where such violations occurred; and why Plaintiff
is entitled to relief.
Because Plaintiff’s amended complaint will completely replace, not supplement, the
original complaint, any facts or claims that Plaintiff wants to include from the original complaint
must be repeated in the amended complaint.
CONCLUSION
Plaintiff is granted leave to file an amended complaint that complies with the standards
set forth above. Plaintiff must submit the amended complaint to this Court’s Pro Se Intake Unit
within 60 days of the date of this order, caption the document as an “Amended Complaint,” and
label the document with docket number 22-CV-7288 (LTS). An Amended Civil Rights
Complaint form is attached to this order. No summons will issue at this time. If Plaintiff fails to
comply within the time allowed, and he cannot show good cause to excuse such failure,
Plaintiff’s Section 1983 claims will be dismissed based on Eleventh Amendment immunity and
for failure to state a claim upon which relief may be granted, and the Court will decline to
exercise supplemental jurisdiction of Plaintiff’s state law claims, which will be dismissed
without prejudice to his refiling them in state court.
The Court certifies under 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

8

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appeal. Cf. Coppedge v. United States, 369 U.S. 438, 444-45 (1962) (holding that an appellant
demonstrates good faith when he seeks review of a nonfrivolous issue).
SO ORDERED.
Dated:

September 19, 2022
New York, New York
/s/ Laura Taylor Swain
LAURA TAYLOR SWAIN
Chief United States District Judge

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U NITED S TATES D ISTRICT C OURT
S OUTHERN D ISTRICT OF N EW Y ORK

_____CV_______________
(Include case number if one has been
assigned)

Write the full name of each plaintiff.

AMENDED

-against-

COMPLAINT
(Prisoner)
Do you want a jury trial?
☐ Yes
☐ No

Write the full name of each defendant. If you cannot fit the
names of all of the defendants in the space provided, please
write “see attached” in the space above and attach an
additional sheet of paper with the full list of names. The
names listed above must be identical to those contained in
Section IV.

NOTICE
The public can access electronic court files. For privacy and security reasons, papers filed
with the court should therefore not contain: an individual’s full social security number or full
birth date; the full name of a person known to be a minor; or a complete financial account
number. A filing may include only: the last four digits of a social security number; the year of
an individual’s birth; a minor’s initials; and the last four digits of a financial account number.
See Federal Rule of Civil Procedure 5.2.

Rev. 5/20/16

Case 1:22-cv-07288-LTS Document 5 Filed 09/19/22 Page 11 of 15

I.

LEGAL BASIS FOR CLAIM

State below the federal legal basis for your claim, if known. This form is designed primarily for
prisoners challenging the constitutionality of their conditions of confinement; those claims are
often brought under 42 U.S.C. § 1983 (against state, county, or municipal defendants) or in a
“Bivens” action (against federal defendants).

☐ Violation of my federal constitutional rights
☐ Other:
II.

PLAINTIFF INFORMATION

Each plaintiff must provide the following information. Attach additional pages if necessary.

First Name

Middle Initial

Last Name

State any other names (or different forms of your name) you have ever used, including any name
you have used in previously filing a lawsuit.
Prisoner ID # (if you have previously been in another agency’s custody, please specify each agency
and the ID number (such as your DIN or NYSID) under which you were held)
Current Place of Detention
Institutional Address

County, City

III.

State

Zip Code

PRISONER STATUS

Indicate below whether you are a prisoner or other confined person:

☐
☐
☐
☐
☐

Pretrial detainee
Civilly committed detainee
Immigration detainee
Convicted and sentenced prisoner
Other:

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Case 1:22-cv-07288-LTS Document 5 Filed 09/19/22 Page 12 of 15

IV.

DEFENDANT INFORMATION

To the best of your ability, provide the following information for each defendant. If the correct
information is not provided, it could delay or prevent service of the complaint on the defendant.
Make sure that the defendants listed below are identical to those listed in the caption. Attach
additional pages as necessary.
Defendant 1:

First Name

Last Name

Shield #

Current Job Title (or other identifying information)
Current Work Address
County, City

State

Zip Code

Defendant 2:

First Name

Last Name

Shield #

Current Job Title (or other identifying information)
Current Work Address
County, City

State

Zip Code

Defendant 3:

First Name

Last Name

Shield #

Current Job Title (or other identifying information)
Current Work Address
County, City

State

Zip Code

Defendant 4:

First Name

Last Name

Shield #

Current Job Title (or other identifying information)
Current Work Address
County, City

State

Zip Code
Page 3

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V.

STATEMENT OF CLAIM

Place(s) of occurrence:

Date(s) of occurrence:
FACTS:

State here briefly the FACTS that support your case. Describe what happened, how you were
harmed, and how each defendant was personally involved in the alleged wrongful actions. Attach
additional pages as necessary.

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INJURIES:

If you were injured as a result of these actions, describe your injuries and what medical treatment,
if any, you required and received.

VI.

RELIEF

State briefly what money damages or other relief you want the court to order.

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VII.

PLAINTIFF’S CERTIFICATION AND WARNINGS

By signing below, I certify to the best of my knowledge, information, and belief that: (1) the
complaint is not being presented for an improper purpose (such as to harass, cause unnecessary
delay, or needlessly increase the cost of litigation); (2) the claims are supported by existing law
or by a nonfrivolous argument to change existing law; (3) the factual contentions have
evidentiary support or, if specifically so identified, will likely have evidentiary support after a
reasonable opportunity for further investigation or discovery; and (4) the complaint otherwise
complies with the requirements of Federal Rule of Civil Procedure 11.
I understand that if I file three or more cases while I am a prisoner that are dismissed as
frivolous, malicious, or for failure to state a claim, I may be denied in forma pauperis status in
future cases.
I also understand that prisoners must exhaust administrative procedures before filing an action
in federal court about prison conditions, 42 U.S.C. § 1997e(a), and that my case may be
dismissed if I have not exhausted administrative remedies as required.
I agree to provide the Clerk's Office with any changes to my address. I understand that my
failure to keep a current address on file with the Clerk's Office may result in the dismissal of my
case.

Each Plaintiff must sign and date the complaint. Attach additional pages if necessary. If seeking to
proceed without prepayment of fees, each plaintiff must also submit an IFP application.

Dated
First Name

Plaintiff’s Signature
Middle Initial

Last Name

Prison Address
County, City

State

Zip Code

Date on which I am delivering this complaint to prison authorities for mailing:

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