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-

Download PDF
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

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?