Fox v. Department of Correctional and Community Supervision Board of Parole Counsels Office et al

Filing 11

DECISION AND ORDER: Plaintiff's Motion for Leave to Proceed in forma pauperis 9 is GRANTED; Plaintiff's Motion to Appoint Counsel 10 is DENIED WITHOUT PREJUDICE. Plaintiff is granted leave to file an amended complaint by 10/28/16, and if no amended complaint is filed by 10/28/16, the Complaint is dismissed with prejudice and without further order of the Court. If no amended complaint is filed by 10/28/16, the Court certifies that any appeal from this Order would not be taken in good faith, and leave to appeal as a poor person is denied. SO ORDERED. Signed by Hon. Frank P. Geraci, Jr. on 9/28/16.-CLERK TO FOLLOW UP- (SCE)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________
JAMES E. FOX,
Plaintiff,
-v-

Case # 15-CV-6619-FPG

DEPARTMENT OF CORRECTIONAL AND
COMMUNITY SUPERVISION BOARD OF
PAROLE - COUNSELS OFFICE,
EASTERN NY CORRECTIONAL FACILITY
SUPERINTENDENT THOMAS GRIFFIN,
ADIRONDACK CORRECTIONAL
FACILITY SUPERINTENDENT JEFFREY
TEDFORD,
PROBATION OFFICER PETE SIGLER,
WYOMING CORRECTIONAL FACILITY,
and
CORRECTIONAL OFFICER M. MINGLE,

DECISION AND ORDER

Defendants.
__________________________________
INTRODUCTION
Pro se Plaintiff James E. Fox is an inmate at Adirondack Correctional Facility, and has
filed this action pursuant to 42 U.S.C. § 1983. ECF No. 1. Plaintiff has requested permission to
proceed in forma pauperis and filed a signed authorization, and has also requested the
appointment of counsel. ECF Nos. 9, 10. For the following reasons, Plaintiff’s Complaint will
be dismissed under 28 U.S.C. § 1915(e)(2)(B) unless he files an amended complaint that cures
the deficiencies identified below.

DISCUSSION
Because plaintiff has met the statutory requirements of 28 U.S.C. § 1915(a) and filed an
Authorization with respect to this action, Plaintiff’s application to proceed in forma pauperis
(ECF No. 9) is GRANTED.
28 U.S.C. §§ 1915(e)(2)(B) and 1915A(a) require the Court to conduct an initial
screening of this Complaint. In evaluating the Complaint, the Court must accept as true all of the
factual allegations and must draw all reasonable inferences in Plaintiff’s favor. See Larkin v.
Savage, 318 F.3d 138, 139 (2d Cir. 2003). While “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 (2d Cir. 2004). “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). 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 v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007).
Plaintiff brings this action pursuant to 42 U.S.C. § 1983. “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. County of Fulton,
126 F.3d 400, 405 (2d. Cir. 1997).

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Plaintiff’s allegations are far from clear. As an initial matter, Plaintiff has named six
Defendants in the caption of his case, but only alleges facts against one named Defendant
(Officer Mingle) in the body of his Complaint. Without any allegations against the other five
Defendants, they cannot be sued in this action. Unless Plaintiff files an amended complaint that
alleges a plausible cause of action against the other named Defendants, they will be dismissed
with prejudice.
The Court additionally notes that several of the five named Defendants appear to be
supervisory officials, since they are identified as Superintendents of correctional facilities.
Supervisory officials cannot be sued under § 1983 under the theory of respondeat superior. In
other words, supervisors are generally only liable for their own actions. In Colon v. Coughlin, 58
F.3d 865, 873 (2d Cir. 1995), the Second Circuit found that a supervisory defendant could only
be held liable for a constitutional violation committed by a subordinate if: (1) the supervisor
participated directly in the alleged constitutional violation; (2) the supervisor, after being
informed of the violation through a report or appeal, failed to remedy the wrong; (3) the
supervisor created a policy or custom under which the unconstitutional practices occurred, or
allowed the continuance of such a policy or custom; (4) the supervisor was grossly negligent in
supervising subordinates who committed the wrongful acts; or (5) the supervisor exhibited
deliberate indifference to the rights of inmates by failing to act on information indicating that
unconstitutional acts were occurring.

Unless Plaintiff alleges facts to demonstrate the

supervisors’ personal involvement in the alleged wrongs, or alleges a basis to hold them liable
under Colon, those supervisors will also be dismissed with prejudice.
Finally, Plaintiff has also named what appear to be state agencies as Defendants.
However, the Eleventh Amendment bars federal claims against states, including state agencies,

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absent their consent to such suit or an express statutory waiver of immunity. See Will v. Mich.
Dep’t of State Police, 491 U.S. 58, 66 (1989); Kentucky v. Graham, 473 U.S. 159, 166 (1985).
Unless Plaintiff provides a legal basis to name these state agencies as Defendants in this action,
they too will be dismissed with prejudice.
As to Defendant Mingle, Plaintiff appears to allege that he was convicted of a prison
disciplinary infraction after a prison hearing due to the false statement that Plaintiff lost his razor.
Plaintiff does not allege that Defendant Mingle was involved in the disciplinary hearing, and
only states that Mingle “said you lost your razor go find the razor.” ECF No. 1, at 2. These
allegations fail to state a claim.
In general, “the prison inmate has no constitutionally guaranteed immunity from being
falsely or wrongly accused of conduct which may result in the deprivation of a protected liberty
interest.” Freeman v. Rideout, 808 F.2d 949, 951 (2d Cir. 1986). In interpreting Plaintiff’s
Complaint liberally, Plaintiff could be attempting to state a due process claim. But to do so,
Plaintiff must show that the conduct of the hearing itself violated due process, which Plaintiff has
not done. Unless Plaintiff amends his Complaint to allege sufficient facts to state a plausible
claim, Defendant Mingle will also be dismissed with prejudice.
Finally, although not named as Defendants in the caption of this case, Plaintiff makes
reference to the “Nurse and Doctor Rosner here at Adirondack Correctional Facility” in his
Complaint. ECF No. 1, at 3. Interpreting Plaintiff’s Complaint liberally and assuming Plaintiff
meant to name these individuals as Defendants, the Complaint also fails to state a claim against
these individuals.
First, the basis for any claims against the unnamed Nurse and Doctor Rosner is unclear.
Plaintiff alleges that they “told me that I can work” (presumably in prison), which is apparently a

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different conclusion than doctors at Eastern Correctional Facility reached. Id.

Plaintiff’s

Complaint uses the terms “discriminate” and “harassment” regarding these individuals, but there
are no facts alleged to make out such a claim. Regarding any potential discrimination claim,
Plaintiff defines “discriminate” in his Complaint as “to make a difference in treatment or favor
on a basis other than individual merit.” ECF No. 1, at 4. But in order for a discrimination claim
to be actionable in federal court under § 1983, the claim must be for discrimination based upon
the Plaintiff’s membership in a protected class. Plaintiff has not alleged any such membership.
In addition, harassment is generally a state law claim. Assuming that Plaintiff could state a claim
for state law harassment, because Plaintiff’s remaining claims are all subject to dismissal, this
Court would not have jurisdiction over a standalone harassment claim.
Further, Plaintiff’s claims have an additional problem. In his Complaint, Plaintiff states
that he did not complete the prison’s grievance procedure regarding these claims before bringing
suit. The Prisoner Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a), provides that “[n]o
action shall be brought with respect to prison conditions under section 1983 … 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.”

The administrative exhaustion

requirement “applies to all inmate suits about prison life, whether they involve general
circumstances or particular episodes, and whether they allege excessive force or some other
wrong.”

Porter v. Nussle, 534 U.S. 516, 532 (2002).

If an inmate fails to exhaust his

administrative remedies, he is barred from commencing a federal lawsuit. Martin v. Niagara
County Jail, No. 05–CV–00868(JTC), 2012 WL 3230435, at *6 (W.D.N.Y. Aug. 6, 2012).
The exhaustion requirement is mandatory, and unless administrative remedies were
“unavailable” to Plaintiff, See Ross v. Blake, --- U.S. ---, 136 S. Ct. 1850, 1856 (2016), then his

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failure to complete the exhaustion process will preclude him from bringing this lawsuit
altogether.
Finally, because Plaintiff’s Complaint is not proceeding unless an amended complaint
that cures the above noted deficiencies is filed, his request for the appointment of counsel (ECF
No. 10) is premature, and is therefore DENIED WITHOUT PREJUDICE.
CONCLUSION
Because plaintiff has met the statutory requirements of 28 U.S.C. § 1915(a) and filed an
Authorization, his request to proceed in forma pauperis (ECF No. 9) is GRANTED. For the
reasons set forth above, Plaintiff’s claims will be dismissed pursuant to 28 U.S.C. §
1915(e)(2)(B) unless he files an amended complaint by October 28, 2016 in which he includes
the necessary allegations as directed above and in a manner that complies with Rules 8 and 10 of
the Federal Rules of Civil Procedure.
Plaintiff is advised that an amended complaint is intended to completely replace the prior
complaint in the action, and thus it “renders [any prior complaint] of no legal effect.” Shields v.
Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir. 1994). Therefore, Plaintiff’s amended
complaint must include all of the allegations against each of the Defendants against whom the
case is going forward so that the amended complaint may stand alone as the sole complaint in
this action which the Defendants could then answer.
If Plaintiff fails to file an amended complaint as directed, his Complaint will be dismissed
with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B).
ORDER
IT HEREBY IS ORDERED, that Plaintiff’s Motion to Proceed in forma pauperis (ECF
No. 9) is GRANTED;

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FURTHER, that Plaintiff’s Motion to Appoint Counsel (ECF No. 10) is DENIED
WITHOUT PREJUDICE;
FURTHER, that Plaintiff is granted leave to file an amended complaint only as directed
above by October 28, 2016;
FURTHER, that the Clerk of Court is directed to send to Plaintiff: (1) a copy of this
Order; (2) a copy of the original Complaint; (3) a blank § 1983 complaint form, and (4) the
instructions for preparing an amended complaint;
FURTHER, that in the event Plaintiff fails to file an amended complaint as directed
above by October 28, 2016, the Complaint is dismissed with prejudice without further order of
the Court and the Clerk of Court shall close this case;
FURTHER, that in the event Plaintiff fails to file an amended complaint by October 28,
2016, the Court certifies, pursuant to 28 U.S.C. § 1915(a), that any appeal from this Order would
not be taken in good faith and leave to appeal to the Court of Appeals as a poor person is denied.
Coppedge v. United States, 369 U.S. 438 (1962). Any request to proceed in forma pauperis on
appeal should be directed by motion to the United States Court of Appeals for the Second Circuit
in accordance with Rule 24 of the Federal Rules of Appellate Procedure.
IT IS SO ORDERED.
Dated:

September 28, 2016
Rochester, New York
______________________________________
HON. FRANK P. GERACI, JR.
Chief Judge
United States District Court

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