Santos v. Keenan et al

Filing 8

ORDER granting 2 Motion for Leave to Proceed in forma pauperis; granting leave to file an amended complaint on or before March 11, 2019; denying 3 Motion to Appoint Counsel. Some of Santos's claims are dismissed with prejudice, others are dismissed without prejudice, and others may proceed. The Clerk of Court shall send to the plaintiff with this order a copy of the complaint, a blank § 1983 complaint form, and the instructions for preparing an amended complaint. If the plaint iff does not file an amended complaint as directed above by March 11, 2019, his § 1985(3) claim and his SHU-related due process claim will be dismissed with prejudice without further order of the Court. Regardless of whether Santos amends his c omplaint, on or after March 12, 2019, the Clerk of the Court shall cause the United States Marshal to serve copies of the summons, complaint or amended complaint, and this order upon the defendants without the plaintiffs payment therefor, unpaid fees to be recoverable if this action terminates by monetary award in the plaintiffs favor. The Clerk of the Court shall forward a copy of this order by email to Michael Russo, Assistant Attorney General in Charge, Buffalo Regional Office [e-mail]. SO ORDERED. Signed by Hon. Lawrence J. Vilardo on 1/23/2019. (LCH)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

FRANCISCO SANTOS,
Plaintiff,
v.

17-CV-984
DECISION AND ORDER

J. KEENAN, C.O., et al.,
Defendants.

The pro se plaintiff, Francisco Santos, is an inmate confined at the Elmira
Correctional Facility. 1 He brings this action under 42 U.S.C. § 1983, alleging numerous
civil rights violations and seeking injunctive relief, declaratory relief, and money
damages. Docket Item 1. Santos also has moved for leave to proceed in forma
pauperis, Docket Item 2, and for the appointment of counsel, Docket Item 3.
Because Santos meets the statutory requirements to proceed in forma pauperis
and has submitted the required authorization, that request is granted. For that reason,
the Court screens the complaint under 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b) and
concludes that some of Santos’s claims survive screening but others must be
dismissed.

1

Santos was confined at the Attica Correctional Facility when he filed his
complaint in October 2017. Docket Item 1. Since that time, he has been transferred to
Elmira. See Docket Item 7.

DISCUSSION
Section 1915 "provide[s] an efficient means by which a court can screen for and
dismiss legally insufficient claims." Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007).
The court shall dismiss a complaint in a civil action in which a prisoner seeks redress
from a governmental entity, or an officer or employee of a governmental entity, if the
court determines that the action (1) fails to state a claim upon which relief may be
granted or (2) seeks monetary relief against a defendant who is immune from such
relief. See 28 U.S.C. § 1915A(b)(1)-(2). Generally, the court will afford a pro se plaintiff
an opportunity to amend or to be heard prior to dismissal "unless the court can rule out
any possibility, however unlikely it might be, that an amended complaint would succeed
in stating a claim." Abbas, 480 F.3d at 639 (internal quotation marks omitted). But
leave to amend pleadings may be denied when any amendment would be futile. See
Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000).
I.

STANDARD OF REVIEW
In evaluating the complaint, the court must accept all factual allegations as true

and must draw all inferences in the plaintiff's favor. See Larkin v. Savage, 318 F.3d
138, 139 (2d Cir. 2003) (per curiam); King v. Simpson, 189 F.3d 284, 287 (2d Cir.
1999). "Specific facts are not necessary," and the plaintiff "need only 'give the
defendant fair notice of what the . . . claim is and the grounds upon which it rests.'"
Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555 (2007)) (internal quotation marks and citation omitted); see also Boykin v.
Keycorp, 521 F.3d 202, 216 (2d Cir 2008) (discussing pleading standard in pro se cases
after Twombly: "even after Twombly, dismissal of a pro se claim as insufficiently
2

pleaded is appropriate only in the most unsustainable of cases."). Although "a court is
obliged to construe [pro se] pleadings liberally, particularly when they allege civil rights
violations," McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004), even pleadings
submitted pro se must meet the notice requirements of Rule 8 of the Federal Rules of
Civil Procedure. Wynder v. McMahon, 360 F.3d 73, 79 n.11 (2d Cir. 2004).
"To state a valid claim under 42 U.S.C. § 1983, the plaintiff must allege that the
challenged conduct (1) was attributable to a person acting under color of state law, and
(2) deprived the plaintiff of a right, privilege, or immunity secured by the Constitution or
laws of the United States." Whalen v. Cty. of Fulton, 126 F.3d 400, 405 (2d Cir. 1997)
(citing Eagleston v. Guido, 41 F.3d 865, 875-76 (2d Cir.1994)). "Section 1983 itself
creates no substantive rights; it provides only a procedure for redress for the deprivation
of rights established elsewhere." Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993)
(citing City of Okla. City v. Tuttle, 471 U.S. 808, 816 (1985)).
II.

PLAINTIFF’S ALLEGATIONS
Santos asserts three claims. First, Santos claims retaliation—including verbal

harassment; the denial of recreation, telephone privileges, and family visits; false
misbehavior reports filed against him; inspection of his mail; a search of his cell; and his
removal from prison programs and cell assignments—for exercising his First
Amendment right to file grievances against various defendants. Docket Item 1 at 6-10.
Second, Santos raises an Eighth Amendment claim for deliberate indifference to his
medical needs. Id. at 11. Finally, he claims that various defendants denied him his
right to due process in connection with two different proceedings that occurred during
his incarceration at Attica. Id. at 11-14.
3

A liberal reading of the complaint tells the following story.
A.

Allegations Relating to Retaliation and Due Process Claims

On May 13-15, 2016, Santos participated in the “Family Reunion Program”
(“Family Program”) at Attica. 2 Docket Item 1 at 44. On May 23, 2016, he received a
“disbursement receipt” notifying him that he had been charged six dollars for cleaning
the oven and floor in unit four, the unit he used while participating in the Family
Program. Id. Santos contested the charge. He claimed that on May 15, an officer
searched and checked the unit for any missing items, damage, or uncleanliness; after
the officer found nothing at issue, Santos “signed both papers and he stated that
nothing was missing or broken.” Id. “At no point or time during the unit search nor on
our way back to the facility [did the officer complain or say] anything negative of the
[cleanliness] of the unit.” Id. Santos filed a complaint with defendant Mrs. D. Bourgeois,
a Family Program coordinator, requesting an investigation into the matter. Id.; see also
Docket Item 1 at 6.
On June 6, 2016, Bourgeois responded to Santos’s complaint. Docket Item 1 at
45. She told Santos that the officer who checked him out on Sunday May 15 “was not
the [Family Program] officer and may not have noticed the issues in the unit at the time.”
Id. “However, when the [Family Program] Officer opened the unit on Monday morning

2

“The Family Reunion Program . . . is designed to provide approved inmates and
their families the opportunity to meet for an extended period of time in privacy. The goal
of the program is to preserve, enhance, and strengthen family ties that have been
disrupted as a result of incarceration.” New York State Department of Corrections and
Community Supervision Directive No. 4500,
http://www.doccs.ny.gov/Directives/4500.pdf.
4

. . . he noticed the issues with the cleanliness.” Id. Bourgeois told Santos to address
his concerns to the Family Program officer, “as it is well within his area of operation.” Id.
Santos alleges that after he complained, various defendants retaliated against
him and that the retaliation sometimes “snowballed.”
Denial of Outside Recreation
On June 19, 2016, Defendant Keenan “verbally harassed [Santos] and directed
[him] to NOT sign-up for recreation for the next day because [Sanots] like[s] to
complain[].” Docket Item 1, at 6. On July 20, 2016, Keenan denied “outside
recreation . . . as promised the day before.” Id.; see also Docket Item 1 at 24.
Telephone Access
On July 3, 2016, Keenan denied Santos the use of a telephone in retaliation for
the grievance that Santos filed against Keenan for denying him outside recreation.
Docket Item 1 at 7, 29. At the time, Keenan “r[an] the telephones in the E-block
recreation yard [at Attica] on a rotating basis.” Id. at 34. It was his practice to “place[]
the inmates’ I.D. card[s] in a milk crate and pull[] them at random to determine who uses
the phone next, and that the only time an I.D. is returned to the milk crate is when an
inmate does not successfully complete a call.” Id.
On Sunday, July 3, 2016, between 7:00 and 7:30 pm, Keenan and a second
officer “started calling inmates for the phone.” Id. at 29. Santos watched the second
officer pick an I.D. card and start to call the corresponding inmate to use the phone. Id.
Before that officer could call out the inmate’s name, however, Keenan told him
“something in a low voice.” Id. The officers were within earshot of another inmate who
told Santos that the second officer had picked Santos’s I.D. but that Keenan told the
officer to put Santos’s I.D. back and leave it for last. Id. As a result, Santos was unable
5

to use the telephone until two days later. Id. Santos also was denied the use of a
phone on March 31, 2017, by defendant John Doe #5. Id. at 8.
Santos filed grievance #A-66894-16 against Keenan because Keenan had
denied Santos use of the telephone in retaliation for an earlier grievance Santos had
filed against Keenan. Docket Item 1 at 11, 29. While that grievance was being
investigated, on July 15, 2016, defendant John Doe #1 Sgt., who is Keenan’s
supervisor, “lied, made false statements, and tampered with the evidence/process” to
cover-up Keenan’s actions. Id. at 11. In addition, defendant Sandra Prusak, an Inmate
Records Coordinator, refused to properly preserve and make available to Santos video
and audio footage that he had requested. Id. at 12. And defendant A. Romesser, an
Inmate Grievance Program Supervisor, then refused to allow Santos’s appeal request
“for specific grievances to be properly transmitted,” preventing Santos from obtaining a
“fair and impartial grievance procedure/process.” Id. at 12.
Family Visits
On July 7, 2016, Family Program Coordinator Bourgeois would not let Santos
participate in the Family Program, and in August 2016, she “mislead [Santos] by
informing [him] that [his] wife won’t be able to participate nor be place[d] within an
application until[] a decision is render[ed] on the grievance [that Santos] filed against”
Bourgeois. Docket Item 1 at 7; see also Docket Item 1 at 38-39. On December 26,
2016, John Does #2 and #3 “refused to comply with a schedule[d] special visit which
allowe[d] [six] family members to visit [Santos] at the same time.” Id. On December 27,
2016, the same John Doe officers denied entry to three of Santos’s family members
who were attempting to visit him at the prison.

6

Program and Cell Assignment
Defendants Conners and John Does #4 and #7 conspired to remove Santos
“from [his] assigned program and cell-location (Block E-54-28)” for retaliatory reasons.
Docket Item 1 at 9.
False Misbehavior Reports
Defendants Keenan, Stanton, Barton, and John Doe #6 filed false disciplinary
charges against Santos or conspired with “co-workers with . . . malice” to do so. Docket
Item 1 at 7, 8. For example, on April 4, 2017, 3 prison officials provided Santos with a
misbehavior report charging him with violating the following rules:
113.11: An inmate shall not possess any authorized item that has been
altered in any manner so as to change its original intent and/or purpose.
116.10: An inmate shall not lose, destroy, steal, misuse, damage or waste
any type of State property.
107.20: An inmate shall not lie or provide an incomplete, misleading and/or
false statement or information.
8 N.Y.C.R.R. § 270.2; see Docket Item 1 at 88. A “tier 2 disciplinary hearing” 4 was held
between April 7 and April 20, 2017. Defendant John Doe #7 administered the hearing
and engaged in conduct that denied Santos his due process rights. Docket Item 1 at

3

On one page of Santos’s submissions he contends that he received the report
on April 4, 2017, Docket Item 1 at 87; elsewhere, however, he contends that he
received this report on April 3, Docket Item 1 at 86.
4

New York State Department of Corrections and Community Supervision
“conducts three types of disciplinary hearings for its inmates.” Hynes v. Squillace, 143
F.3d 653, 655 n.1 (2d Cir. 1998). “Tier I hearings address the least serious infractions
and have as their maximum punishment loss of privileges such as recreation.” Id. “Tier
II hearings address more serious infractions and may result in 30 days of confinement in
a Special Housing Unit (‘SHU’).” Id. “Tier III hearings concern the most serious
violations and may result in unlimited SHU confinement (up to the length of the
sentence) and recommended loss of ‘good time’ credits.” Id.
7

12. Santos was held in “[p]re hearing confinement” 5 more seventeen days and “given a
[p]enalty of an additional 30 days lost of privileges.” Id. at 87.
Cell Search and Mail Inspection
Defendants Stanton and Barton read Santos’s mail and conspired to harass him
and illegally search his cell. Docket Item 1 at 8. Those defendants and defendant John
Doe #6 also conspired to confine him and file false charges against him. Id.
B.

Allegations of Deliberate Indifference

On April 6, 2017, Santos obtained a “Flat permit.” Id. at 104. The permit was
“signed and approved by the medical health [u]nit and the [d]eputy superintendent for
[s]ecurity.” Id. This permit was obtained for “medical reasons”: Santos had advised that
it was uncomfortable and painful for him to reside on the second floor due to the stairs.
Id. Nevertheless, according to Santos,
from April 6 to 28 of 2017, [John Doe #8 and Kolacz] conspired into
consciously prevent me from moving into the first floor (flats) of E-block,
with malice intention and deliberate indifference to my medical
needs/treatment.
[John Doe #8 and Kolacz] were fully-aware of my medical needs in which
requires that I reside within a first floor, yet, in retaliation, defendants kept
stopping such movement and purposely kept in the second floor.
Docket Item 1 at 11.

5

Given the fact that Santos was subject to a Tier II report and hearing, this Court
construes his complaint to mean that he was subject to Special Housing Unit
confinement. See note 4, supra.
8

III.

ANALYSIS
A.

Official Capacity Claims

As an initial matter, Santos’s claims for money damages against the defendants
in their official capacities must be dismissed. The Eleventh Amendment divests the
Court of subject matter jurisdiction over any claims for money damages against a New
York State official acting in his or her official capacity unless the state has consented to
the suit or waived this immunity or Congress has abrogated it. See Kentucky v.
Graham, 473 U.S. 159, 169 (1985); Woods v. Rondout Valley Cent. Sch. Dist. Bd. of
Educ., 466 F.3d 232, 236 (2d Cir. 2006). In this case, because there has been no
waiver of immunity or consent to suit, and because Congress has not abrogated
immunity, Santos’s claims seeking money damages against the defendants in their
official capacities are dismissed under 28 U.S.C. § 1915A(b)(2).
B.

Retaliation, Conspiracy, and Harassment Claims

This Court reads Santos’s first claim as a § 1983 First Amendment retaliation
claim. See Docket Item 1 at 10 (“The constitutional basis for this Claim under 42 U.S.C.
§ 1983 is for FREE SPEECH in conspiracy and retaliation against prisoners for
exercising the right of Free Speech in violation of the First Amendment”). Santos also
peppers the words “conspiracy” and “harassment” throughout his complaint, however,
and so this Court will analyze the claim as a harassment claim and a § 1985(3)
conspiracy claim as well.
1.

Retaliation Claim

To state a First Amendment retaliation claim, “a plaintiff must allege ‘(1) that the
speech or conduct at issue was protected, (2) that the defendant took adverse action
9

against the plaintiff, and (3) that there was a causal connection between the protected
speech and the adverse action.’” Dolan v. Connolly, 794 F.3d 290, 294 (2d Cir. 2015)
(quoting Espinal v. Goord, 558 F.3d 119, 128 (2d Cir. 2009). Santos’s complaint states
a viable retaliation claim for screening purposes.
“[R]etaliation against a prisoner for pursuing a grievance violates the right to
petition government for the redress of grievances guaranteed by the First and
Fourteenth Amendments and is actionable under § 1983.” Graham v. Henderson, 89
F.3d 75, 80 (2d Cir. 1996). Santos alleges that he was disciplined for filing a complaint
against prison staff. That is sufficient to meet the first prong—protected speech.
Santos also alleges that he was harassed, accused falsely, subjected to the
search of his cell and inspection of his mail, removed “from [his] assigned program” and
cell assignment, and denied recreation and some visitation—all “in retaliation” for the
“written complaint[s]” and “grievances [he] filed against the prison staff.” Docket Item 1
at 6-10. Because Santos has alleged both adverse action and a causal connection
between the adverse action and the filing of his complaints and grievances, the
complaint meets the second and third prongs as well. Therefore, these claims are
sufficient for the purposes of screening and may proceed to service against the
defendants.
2.

Section 1985(3) Conspiracy Claim

Santos claims that defendants acted as a result of a conspiracy (read liberally, in
violation of 42 U.S.C. § 1985(3)). To state a claim under § 1985(3), a plaintiff must
allege
(1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly,
any person or class of persons of equal protection of the laws, or of equal
10

privileges and immunities under the laws; (3) an act in furtherance of
the conspiracy; (4) whereby a person is either injured in his person or
property or deprived of any right of a citizen of the United States.
Mian v. Donaldson, Lufkin & Jenrette Secs. Corp., 7 F.3d 1085, 1087 (2d Cir. 1993).
The conspiracy Santos alleges involves the defendants’ depriving him of his First
Amendment rights to pursue a grievance. Because a conspiracy to infringe First
Amendment rights may violate § 1985(3) if the plaintiff can show state involvement, 6
United Bhd. of Carpenters and Joiners of Am., Local 610, AFL-CIO v. Scott, 463 U.S.
825, 830 (1983), Santos has sufficiently alleged three of the four elements of a
§ 1985(3) conspiracy claim: a conspiracy, acts in furtherance of the conspiracy, and an
injury. But the complaint does not include any facts supporting the second element—
“that there must be some racial, or perhaps otherwise class-based, invidiously
discriminatory animus behind the conspirators’ action.” Id. at 835 (quoting Griffin v.
Breckenridge, 403 U.S. 88, 102 (1971)). Santos does not allege that the defendants’
conspiracy to suppress his right to file grievances was based on race-based animus or
any other discriminatory classification. 7 Nevertheless, because Santos is proceeding
pro se, he will be given an opportunity to amend his complaint. If Santos has reason to

6

A conspiracy to infringe First Amendment rights in violation of § 1985(3) does
not necessarily require state action but requires a plaintiff to prove “that the state is
involved in the conspiracy or that the aim of the conspiracy is to influence the activity of
the state.” United Bhd. of Carpenters and Joiners of Am., Local 610, AFL-CIO v. Scott,
463 U.S. 825, 830 (1983).
7

Although 42 U.S.C. § 1985(3) certainly extends to conspiracies involving
“animus to deprive [individuals] of the equal enjoyment of legal rights because of their
race,” Griffin v. Breckenridge, 403 U.S. 88, 103 (1971), and may extend as far as
reaching “conspiracies aimed at any class or organization on account of its political
views or activities,” Scott, 463 U.S. at 837, § 1985(3) does not “reach conspiracies
motivated by bias towards others on account of their economic views, status, or
activities,” id. (emphasis in original).
11

believe that the alleged conspiracy was “motivated by ‘some racial or perhaps otherwise
class-based, invidious discriminatory animus behind the conspirators’ action,” Mian, 7
F.3d at 1088 (quoting Scott, 463 U.S. at 829), he may file an amended complaint
including facts in support of that allegation. If, on or before March 11, 2019, Santos
does not file an amended complaint adequately stating a § 1985(3) conspiracy, that
claim will be dismissed.
3.

Harassment

Harassment is not a cognizable claim under § 1983. See Purcell v. Coughlin,
790 F.2d 263, 265 (2d Cir. 1986). Nor do the threats that Santos alleges implicate
constitutional protections. See Malsh v. Austin, 901 F. Supp. 757, 763 (S.D.N.Y. 1995).
Accordingly, to the extent it raises harassment, Santos’s § 1983 claim is dismissed with
prejudice.
C.

Deliberate Indifference to Medical Needs

Santos alleges that defendants Correction Officer John Doe #8 and Correction
Officer D. Kolacz were deliberately indifferent to his medical needs based on their
refusal to move him to the first floor despite a “medical permit” requiring him to reside on
the first floor so that he could avoid stairs. The standard for proving deliberate
indifference to an inmate’s serious medical needs “includes both subjective and
objective components.” Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998). “First,
the alleged deprivation must be, in objective terms, sufficiently serious.” Id. (quoting
Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994)). “Second, the defendant ‘must act
with a sufficiently culpable state of mind.’” Id. (quoting Hathaway, 37 F.3d at 66). “An
official acts with the requisite deliberate indifference when that official ‘knows of and
12

disregards an excessive risk to inmate health or safety; 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.’” Id. (quoting Farmer v. Brennan, 511 U.S.
825, 837 (1994).
Dismissal pursuant to § 1915A is inappropriate when “a liberal reading of the
complaint gives any indication that a valid claim might be stated.” Larkin v. Savage, 318
F.3d 138, 139 (2d Cir. 2003). Santos’s claim against John Doe #8 and Kolacz for a
deliberate indifference to his medical needs meets that standard. Cf. Williams v. Canty,
2008 WL 821863, at *1-*2, *5 (M.D.Ga. Mar. 25, 2008) (inmate’s claim survived
summary judgment where his medical profile required low bunk, low tier, cell feed, and
wheelchair access due to leg condition but prison officials “decided to move him
upstairs”). He claims that his physical condition required him to avoid stairs and that the
defendants ignored that knowingly and with malice. Docket Item 1 at 11. That is
enough at least at the screening stage.
D.

Due Process Claims
1. Telephone Grievance Concerns

Santos’s due process claim related to his grievance, on the other hand, must be
dismissed. Santos’s numerous “claim[s] that defendants violated his due process
rights” throughout the appeals of his telephone grievance “confuses a state-created
procedural entitlement with a constitutional right.” Riddick v. Semple, 731 F. App’x 11,
13 (2d Cir. 2018) (summary order). “Process is not an end in itself. Its constitutional
purpose is to protect a substantive interest to which the individual has a legitimate claim
of entitlement.” Holcomb v. Lykens, 337 F.3d 217, 224 (2d Cir. 2003) (quoting Olim v.
13

Wakinekona, 461 U.S. 238, 250 (1983)). Although an “inmate’s rights to communicate
with family and friends are essentially First Amendment rights subject to [§] 1983
protection,” Morgan v. LaVallee, 526 F.2d 221, 225 (2d Cir. 1975), “prisoners do not
have an absolute right to make phone calls.” Banks v. Argo, 2012 WL 4471585, at *5
(S.D.N.Y. Sept. 25, 2012) (quoting Fair v. Weiburg, 2006 WL 2801999, at *7 (S.D.N.Y.
Sept. 28, 2006)). As Santos’s underlying complaint involves just one or two days when
he was not able to use the telephone, his liberty or property interests at issue are
insufficient to impose any procedural requirements upon investigations regarding their
temporary suspension. His due process claim therefore fails and is dismissed.
E.

April 2017 Disciplinary Hearings

Santos alleges that defendant John Doe #7 violated his due process rights when
he administered the April 2017 hearing on the charges that prison officials brought
against Santos in their misbehavior report of April 4, 2017. Docket Item 1 at 12. “In
raising a due process claim, a plaintiff must first establish that the challenged action
infringed a constitutionally protected property or liberty interest.” Brooks v. Prack, 77
F. Supp.3d 301, 314 (W.D.N.Y. 2014). “A prisoner’s liberty interest is implicated by
prison discipline, such as [Special Housing Unit (“SHU”)] confinement, only if the
discipline ‘imposes an atypical and significant hardship on the inmate in relation to the
ordinary incidents of prison life.’” Palmer v. Richards, 364 F.3d 60, 64 (2d Cir. 2004)
(quoting Sandin v. Conner, 515 U.S. 472, 484 (1995)). Liberally construed, Santos
alleges that he was subject to seventeen days of SHU confinement as discipline for his
conduct. Docket Item 1 at 13, 87.

14

The Second Circuit has “explicitly avoided a bright line rule that a certain period
of SHU confinement automatically fails to implicate due process rights.” Palmer, 364
F.3d at 64. “And although shorter confinements under normal SHU conditions may not
implicate a prisoner’s liberty interest . . . SHU confinements of fewer than 101 days
could constitute atypical and significant hardships if the conditions were more severe
than the normal SHU conditions . . . or a more fully developed record showed that even
relatively brief confinements under normal SHU conditions were, in fact, atypical.” Id.
But “where the period of time spent in SHU was exceedingly short—less than . . . 30
days . . . and there was no indication that the plaintiff endured unusual SHU conditions”
no due process right is implicated. Id. at 65-66. Santos alleges that he spent
seventeen days in SHU confinement and has provided no indication that he endured
unusual SHU conditions or that the SHU conditions at Attica were atypical.
Nevertheless, because of his pro se status, Santos will be given an opportunity to
amend his complaint. If he endured unusual SHU conditions, or if SHU conditions at
Attica were themselves atypical, Santos may file an amended complaint including facts
in support of those allegations. If Santos does not file an amended complaint on or
before March 11, 2019, adequately alleging that he endured unusual or atypical
conditions while in SHU, his disciplinary-hearing claim will be dismissed.
IV.

PLAINTIFF’S REQUEST TO APPOINT COUNSEL
Santos has asked this Court to appoint him counsel. Docket Item 3. Under 28

U.S.C. § 1915, “[t]he court may request an attorney to represent any person unable to
afford counsel.” “Broad discretion lies with the district judge in deciding whether to
appoint counsel pursuant to this provision.” Hodge v. Police Officers, 802 F.2d 58, 60
15

(2d Cir. 1986). In deciding whether to appoint counsel, courts should consider “the
merits of the indigent’s claim[,] . . . the nature of the factual issues the claim presents[,
and] . . . the plaintiff’s apparent ability to present the case.” Id. at 60-61. The only facts
this Court now has are those alleged in Santos’s complaint. At least until after the
defendants have had an opportunity to respond, the Court lacks sufficient information to
consider the factors set forth in Hodge. Santos’s request for appointment of counsel is
therefore denied without prejudice as premature.
CONCLUSION
Because Santos has met the statutory requirements of 28 U.S.C. § 1915(a) and
filed the required authorization, his request to proceed in forma pauperis, Docket Item 2,
is granted. His motion to appoint counsel, Docket Item 3, is denied as premature. For
the reasons stated above, (1) Santos’s claims for money damages against the
defendants in their official capacities are dismissed with prejudice; (2) his retaliation
claims against the defendants and his deliberate indifference claim against defendants
John Doe #8 and Kolacz may proceed; and (3) his remaining claims will be dismissed
pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A unless he files an amended
complaint on or before March 11, 2019, in which he includes the necessary
allegations, as addressed above, in a manner that complies with Rules 8 and 10 of the
Federal Rules of Civil Procedure.
Santos is advised that any amended complaint will completely replace his prior
complaint in this action and “render[] it of no legal effect.” Arce v. Walker, 139 F.3d 329,
332 n. 4 (2d Cir. 1998) (quoting Int’l Controls Corp. v. Vesco, 556 F.2d 665, 668 (2d Cir.
1977)). Therefore, an amended complaint must include all allegations against each
16

of the named defendants, so that the amended complaint stands alone as the only
complaint that the defendants must answer.
ORDER
IT HEREBY IS ORDERED that the plaintiff’s motion to proceed in forma pauperis
is granted; and it is further
ORDERED that the plaintiff is granted leave to file an amended complaint as
directed above on or before Monday March 11, 2019; and it is further
ORDERED that the plaintiff’s motion for the appointment of counsel is denied
without prejudice; and it is further
ORDERED that the plaintiff’s claims for money damages against the defendants
in their official capacities are dismissed with prejudice; and it is further
ORDERED that the plaintiff’s § 1983 due process claim in relation to his
telephone-access grievance and his harassment claim are dismissed with prejudice;
and it is further
ORDERED that the Clerk of Court shall send to the plaintiff with this order a copy
of the complaint, a blank § 1983 complaint form, and the instructions for preparing an
amended complaint; and it is further
ORDERED that if the plaintiff does not file an amended complaint as directed
above by March 11, 2019, his § 1985(3) claim and his SHU-related due process claim
will be dismissed with prejudice without further order of the Court; and it is further
ORDERED that regardless of whether Santos amends his complaint, on or after
March 12, 2019, the Clerk of the Court shall cause the United States Marshal to serve
copies of the summons, complaint or amended complaint, and this order upon
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defendants without the plaintiff’s payment therefor, unpaid fees to be recoverable if this
action terminates by monetary award in the plaintiff’s favor; and it is further
ORDERED that the Clerk of the Court shall forward a copy of this order by email
to Michael Russo, Assistant Attorney General in Charge, Buffalo Regional Office
[e-mail]; and it is further
ORDERED that, pursuant to 42 U.S.C. § 1997e(g)(2), the defendants shall
answer the complaint upon service.
SO ORDERED.
Dated:

January 23, 2019
Buffalo, New York

s/ Lawrence J. Vilardo
LAWRENCE J. VILARDO
UNITED STATES DISTRICT JUDGE

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