Griggs v. Schmauss et al

Filing 6

DECISION AND ORDER dismissing the amended complaint with prejudice and denying leave to appeal to the Court of Appeals as a poor person. (Clerk to close case.) (Copy of Decision and Order sent by first class mail to Plaintiff.). Signed by Hon. Michael A. Telesca on 4/12/18. (JMC)-CLERK TO FOLLOW UP-

PS

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________
PERRY GRIGGS,
Plaintiff,
-v-

17-CV-6456-MAT
DECISION AND ORDER

STEWART ECKERT, Superintendent,
R. SCHMAUSS, RDH, R. TENBRINK,
DDS, MAUREEN KELLER, RDH,
Defendants.
___________________________________
FACTUAL AND PROCEDRUAL BACKGROUND
Plaintiff

Perry

Griggs

(“Plaintiff”),

a

prisoner

who

was

incarcerated at the Wende Correctional Facility at the time of the
events alleged in the Complaint, filed this pro se action seeking
relief under 42 U.S.C. § 1983.

Plaintiff alleged he was denied

adequate dental care in violation of his rights under the Eighth
Amendment

to

the

United

States

Constitution.

Specifically,

he

alleged that Defendant Schmauss conducted a dental exam on December
4, 2014 and determined that Plaintiff needed four dental fillings,
but that only one filling was performed by Schmauss at that time.
year

later,

hygienist,
problems

on

December

allegedly

with

the

2,

conducted

same

four

2015,
an

Defendant

exam

teeth.

at
She

which
also

notation of “possible decay” of the same teeth.
Defendant

Dr.

Tenbrink

conducted
1

another

Keller,
time
noted

A

a

dental

she

noted

a

previous

On January 29, 2016,

exam

and

scheduled

an

appointment for March 24th to fill two teeth.

The appointment was

allegedly rescheduled several times until one tooth was extracted on
June 9, 2017.
Plaintiff filed a grievance on June 8, 2017, complaining that
that two of his scheduled dental appointments to fill his cavities
had to be rescheduled because correctional officers failed to escort
him to the appointments.

He also noted that he was “in a lot of pain
Docket No. 1 at 5, 8;1

and discomfort and ha[d] been for some time.”
Docket No. 4 at 4-5.

In a prior Decision and Order dated January 17, 2018, the Court
granted Plaintiff permission to proceed in forma pauperis and, upon
screening the Complaint pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and
1915A

(“Section

1915”

and

“Section

1915A”),

found

that

Plaintiff

sufficiently alleged that he had suffered from a serious medical
need, see Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir. 1998), but
failed to allege that Defendants were deliberately indifferent to his
dental

needs,

see

Farmer

Docket No. 4 at 5-6.

v.

Brennan,

511

U.S.

825,

837

(1994).

The Court granted Plaintiff leave to amend the

Complaint to allege that Defendants were deliberately indifferent to
his dental needs.
Plaintiff has now filed an Amended Complaint.

Docket No. 5.

For the reasons set forth below, the Amended Complaint is dismissed

1

Page references are to those
Electronic Case Filing System.

generated

2

by

the

Court’s

Case

Management

and

because it fails to state a claim upon which relief may be granted.
See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A.
DISCUSSION
Sections 1915 and 1915A “provide 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) (citing Shakur v. Selsky,
391 F.3d 106, 112 (2d Cir. 2004)).

Section 1915A(b) provides that

the Court shall dismiss a complaint in a civil action in which a
prisoner

seeks

redress

employee

of

governmental

a

from

a

governmental

entity

if,

at

entity
any

or

officer

time,

the

or

Court

determines that the action (1) fails to state a claim upon which
relief

may

defendant

be
who

granted
is

or

immune

(2)
from

seeks
such

monetary
relief.

relief
See

against

28

a

U.S.C.

§

1915A(b)(1)-(2).
In evaluating a complaint, the court must accept as true all of
the plaintiffs factual allegations, and must draw all inferences in
the plaintiffs favor.
(2d Cir. 2003).
pleadings

See, e.g., Larkin v. Savage, 318 F.3d 138, 139

Although “a court is obliged to construe [pro se]

liberally,

particularly

when

they

allege

civil

rights

violations,” McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004),
even pro se pleadings 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) (“[T]he basic requirements of Rule 8 apply
to self-represented and counseled plaintiffs alike.”).
3

In order to

state a claim, “a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on
its face. ’ ”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

“A claim has

facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged.”
recognized

that

this

plausibility

even by pro se litigants.”

Id.

standard

“The Second Circuit has
governs

claims

brought

Hughes v. Nemier, No. 12-CV-6024FPG, 2014

WL 1322872 at *2 (W.D.N.Y. Mar. 31, 2014) (citing Robles v. Bleau,
No. 9:07–CV–0464, 2008 WL 4693153, at *5 (N.D.N.Y. Oct. 22, 2008);
Jacobs v. Mostow, 271 F. App'x 85, 87 (2d Cir. 2008); Boykin v.
KeyCorp,

521

F.3d

202,

215–16

(2d

Cir.2008))

(internal

quotation

marks omitted).
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).
Plaintiff’s

Amended

Complaint

in

all

substantive

respects

is

identical to the initial Complaint, except it adds as a Defendant
Superintendent Stewart Eckert and alleges that Eckert failed to “set
4

up”

policies

to

guide

his

subordinates

constitutional rights do not occur.”

“so

that

violations

Docket No. 5 at 5-6.

for

Plaintiff

claims that there were
unwritten policies which made it possible for officers to
refuse to transport [him] to the dental office without
their being any check and balances to prevent the harm
caused . . . or to even determine who the officers were.
Furthermore Stewart Eckert is responsible for the officers
who failed to transport [him] due to there not being any
custom or policy in place which supervises these officers
to make sure they escort inmates who are scheduled for
treatment.
[Eckert] was responsible for the delay of
treatment.
Id. at 6.
First,

since

allegations
regarding
dental

Plaintiff

against
how

Defendants

they

were

the

needs,

does

claims

not

allege

Schmauss,

deliberately
against

Tenbrink,

indifferent

them

any

must

be

additional
and

to

Keller

Plaintiff’s

dismissed

with

prejudice, for the reasons set forth in this Court’s January 17, 2018
Decision and Order (Docket No. 4).

Second, Plaintiff's allegations

against Superintendent Eckert fail to state a claim upon which relief
can be granted and the claims against him are dismissed.
Under

Section

subordinate's

1983,

violation

a

if

supervisor
the

may

supervisor

be

liable

participated

for
in

a
the

wrongful conduct, failed to remedy known violations of constitutional
rights,

created

a

policy

or

custom

under

which

unconstitutional

practices occurred, allowed such a policy or custom to continue, or
was

grossly

negligent

in

managing

5

subordinates.

See

Colon

v.

Coughlin, 58 F.3d 865, 874 (2d Cir. 1995); see also Doe v. Whidden,
557 F. App’x 71, 72-73 (2d Cir. 2014) (finding that plaintiff who was
assaulted by cellmate failed to establish that any assignment error
by the unidentified official responsible for assigning cellmates was
attributable to the warden of facility).

In this case, there is no

plausible allegation that Eckert directly participated in the alleged
denial of dental care, failed to remedy a known violation, created or
permitted a policy or custom under which unconstitutional practices
occurred, or was grossly negligent in managing his subordinates.
Because the Court previously granted Plaintiff an opportunity to
amend the Complaint, see Chavis v. Chappius, 618 F.3d 162, 170 (2d
Cir. 2010) (“A pro se complaint should not [be] dismiss[ed] without
[the Court's] granting leave to amend at least once when a liberal
reading of the complaint gives any indication that a valid claim
might be stated.”) (internal quotation and citation omitted), and
because the Court finds that any further amendment would be futile,
the

Court

Complaint.

denies

Plaintiff

further

leave

to

amend

the

Amended

See Ellis v. Chao, 336 F.3d 114, 127 (2d Cir. 2003).
CONCLUSION

For the reasons discussed above, the Amended Complaint (Docket
No.

5)

is

dismissed

with

prejudice

§§ 1915(e)(2)(B)(ii) and 1915A.

pursuant

to

28 U.S.C.

Plaintiff is forewarned that his

right to pursue further relief in federal court at public expense
will

be

greatly

curtailed

if

he
6

has

three

actions

or

appeals

dismissed
1915A.

under

the

provisions

of

28 U.S.C.

§§ 1915(e)(2)(B)

and

See 28 U.S.C. § 1915(g).

The Court hereby certifies, pursuant to 28 U.S.C. § 1915(a)(3),
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.
See Coppedge v. United States, 369 U.S. 438 (1962).

Further requests

to proceed on appeal as a poor person should be directed, on motion,
to the United States Court of Appeals for the Second Circuit, in
accordance with Rule 24 of the Federal Rules of Appellate Procedure.
ORDER
IT HEREBY IS ORDERED, that the Amended Complaint is dismissed
with prejudice; and
FURTHER, that leave to appeal to the Court of Appeals as a poor
person is denied.
ALL OF THE ABOVE IS SO ORDERED.
s/ Michael A. Telesca
MICHAEL A. TELESCA
United States District Judge

Dated:

April 12, 2018
Rochester, New York

7