Pinkard v. Crowley et al

Filing 40

DECISION AND ORDER granting 32 Motion for Leave to Proceed in forma pauperis; denying 37 Motion for Service by US Marshal; denying 39 Motion to Appoint Counsel - all consistent with this Decision and Order. (Copy of Decision and Order sent by first class mail to Plaintiff.) Signed by Hon. Michael A. Telesca on 12/26/18. (JMC)

PS
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________
ALVIN R. PINKARD,
Plaintiff,
-v-

6:18-cv-06122-MAT
DECISION AND ORDER

OFFICER TOMAS CROWLEY, OFFICER
DERREK MERRITT, OFFICER PETER
McCADDEN,
N.Y.S.
POLICE
DEPARTMENT,
Defendants.
___________________________________

INTRODUCTION
Pro se plaintiff Alvin R. Pinkard (“Plaintiff”) is
an

inmate

incarcerated

Facility (“Attica C.F.”).

at

the

Attica

Correctional

He filed an initial Complaint

under 42 U.S.C. § 1983 (“Section 1983”) asserting various
constitutional violations. Docket Item 1. The Complaint
was dismissed on initial screening under 28 U.S.C. §
1915(e)(2)(B) and 1915A, but Plaintiff was granted leave
to file an amended complaint as to his false arrest and
due process claims.

Plaintiff paid the filing fee in

full. On October 3, 2018, the Court received an undated
Amended Complaint. Docket Item 31. On the same date, the

Court

received

Plaintiff’s

requested

permission

to

proceed in forma pauperis (“IFP”). Docket Item 32. On
October

5,

2018,

the

Court

received

a

letter

from

Plaintiff enclosing a newspaper article and an excerpt
from the transcript of a grand jury proceeding, which
Plaintiff requested be added to the Amended Complaint.
Docket Item 34. In November, Plaintiff filed motions
requesting that the Marshals Service effectuate service
of the Summons and Amended Complaint and that the Court
appoint pro bono counsel. Docket Items 37 & 39.
DISCUSSION
I.

The IFP Motion
Because Plaintiff has met the statutory requirements

of

28

U.S.C.

§

1915(a)

and

filed

the

required

authorization, he is granted permission to proceed IFP.
II. Screening of the Amended Complaint
A. Section 1915
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)

-2-

(citing Shakur v. Selsky, 391 F.3d 106, 112 (2d Cir.
2004)). 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

possibility,

“unless
however

the

court

unlikely

it

can

rule

might

be,

out

any

that

an

amended complaint would succeed in stating a claim.”
Abbas,

480

F.3d

at

639

(internal

quotation

marks

omitted). However, leave to amend pleadings may be denied
when any amendment would be futile. Cuoco v. Moritsugu,
222 F.3d 99, 112 (2d Cir. 2000).
B. Section 1983
“To state a valid claim under 42 U.S.C. § 1983, the
plaintiff must allege that the challenged conduct (1) was

-3-

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) (citing Eagleston v. Guido, 41 F.3d
865, 875-76 (2d Cir. 1994)). “Accordingly, ‘personal
involvement

of

defendants

in

alleged

constitutional

deprivations is a prerequisite to an award of damages
under § 1983.’” Williams v. Smith, 781 F.2d 319, 323 (2d
Cir. 1986) (quoting McKinnon v. Patterson, 568 F.2d 930,
934 (2d Cir. 1977), cert. denied, 434 U.S. 1087 (1978)).

C. Summary of the Amended Complaint’s Allegations
In evaluating the Amended Complaint, the Court must
accept all factual allegations as true and must draw all
inferences in Plaintiff’s favor. Larkin v. Savage, 318
F.3d 138, 139 (2d Cir. 2003) (per curiam). “Specific
facts are not necessary,” and a plaintiff “need only
‘give the defendant fair notice of what the . . . claim
is and the grounds upon which it rests.’” Erickson v.

-4-

Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation
marks and citation omitted)); see also Boykin v. Keycorp,
521 F.3d 202, 213 (2d Cir. 2008) (stating that “even
after

Twombly,

dismissal

of

a

pro

se

claim

as

insufficiently 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,
pleadings

357

F.3d

submitted

197,
pro

200
se

(2d

Cir.

must

meet

2004),
the

even

notice

requirements of Rule 8 of the Federal Rules of Civil
Procedure. Wynder v. McMahon, 360 F.3d 73 (2d Cir. 2004).
The allegations of the Amended Complaint, presumed
true at this stage of the proceedings, tell the following
story. On August 6, 2017, named defendants, Investigators
Tomas Crowley (“Crowley”), Derrek Merritt (“Merritt”),
and

Peter

McCadden

(“McCadden”)

(collectively,

“the

Investigators”) arrested Plaintiff for the murder of his
ex-girlfriend. The arrest, according to Plaintiff, was

-5-

“without probable cause” and “without any conclusive
evidence” that he committed the crime.

Docket Item 31,

pp. 5, 8.
The

following

day,

after

a

grand

jury

hearing,

Plaintiff was indicted on the charge of second-degree
murder. Id., pp. 8, 18. In order to secure the indictment,
the Investigators gave false or inconsistent testimony
at

the

grand

jury

hearing.

Id.,

pp.

5,

8-11.

Specifically, Crowley testified that he had recovered a
knife from Plaintiff, but Plaintiff states that the knife
“had nothing to do with the crime and it was found in
another town.” Id., pp. 8, 21-22. Crowley also mistakenly
stated that a DNA swab taken from the murder victim’s dog
had not yet been tested to determine whether the dog
could have inflicted some of the victim’s wounds, when
the

DNA

earlier.

test
Id.,

results
pp.

actually
8,

20-21,

had

come

23.

back

McCadden

months
gave

inconsistent testimony as to what days he was present at
the crime scene, as well as where Plaintiff was in
relation to his vehicle when the Investigators came to

-6-

question him the day after the murder. Id., pp. 8-10, 2428.
Plaintiff was detained at the Wayne County Jail
(“Jail”) pending trial. Id., p. 9. During his stay there,
he was brought to the emergency room “several” times
because

he

suffered

“serious

and

life-threatening

issue[s]” due to being denied medicine and meals suitable
for a diabetic prone to blood clots.

Docket Item 31, p.

6.
D. Plaintiff Has Not Alleged a Viable False Arrest
Claim
“A plaintiff claiming false arrest must show, inter
alia,

that

the

defendant

intentionally

confined

without his consent and without justification.”

him

Weyant

v. Okst, 101 F.3d 845, 852 (2d Cir. 1996). “The existence
of probable cause to arrest constitutes justification and
is a complete defense to an action for false arrest,
whether that action is brought under state law or under
§ 1983.” Id. (quotation marks and citations omitted). “A
prosecution

and

conviction,

if

not

overturned,

is

conclusive evidence that an arrest was supported by the
-7-

requisite probable cause.”

Duamutef v. Morris, 956 F.

Supp. 1112, 1117 (S.D.N.Y. 1997).
While Plaintiff was a pretrial detainee at the County
Jail when he filed his initial Complaint, he is now a
sentenced prisoner following his conviction of seconddegree murder. See Docket 26. Plaintiff does not allege
any

facts

suggesting

that

his

conviction

has

been

overturned. Accordingly, Plaintiff’s false arrest claim
is dismissed without prejudice to refile at a later date,
should Plaintiff’s conviction be overturned on appeal.
E. Plaintiff Will Be Allowed to Replead His Claims
Pertaining to Conditions of Confinement and
Inadequate Medical Care
Plaintiff asserts that while he was detained at the
Jail, he was denied proper medical treatment in violation
of his constitutional rights. Docket Item 31, pp. 5-6.
Because Plaintiff was a pretrial detainee, the Court
therefore

reviews

his

claims

under

the

Fourteenth

Amendment due process standard, rather than under the
Eighth

Amendment

standard

-8-

applicable

to

sentenced

prisoners.

Darnell v. Pineiro, 849 F.3d 17, 30, 35 (2d

Cir. 2017).
“To state a claim for deliberate indifference to
serious medical needs, a pretrial detainee must satisfy
a two-pronged test: First, ‘the alleged deprivation of
adequate medical care must be “sufficiently serious.”’”
Davis v. McCready, 283 F. Supp.3d 108, 116 (S.D.N.Y.
2017) (quoting Lloyd v. City of New York, 246 F. Supp.3d
704, 717 (S.D.N.Y. 2017) (quoting Spavone v. N.Y. State
Dep’t of Corr. Servs., 719 F.3d 127, 139 (2d Cir. 2013)).
“Second, the defendant must act with a ‘sufficiently
culpable

state

of

mind.’”

Id.

(quoting

Hathaway

v.

Coughlin, 99 F.3d 550, 553 (2d Cir. 1996)).
With regard to the “state of mind” prong, the Second
Circuit clarified that, following the Supreme Court’s
decision Kingsley v. Hendrickson, 135 S. Ct. 2466 (2015),
it is “defined objectively.” Darnell, 849 F.3d at 35.
Thus,
the pretrial detainee must prove that the
defendant-official acted intentionally to impose
the alleged condition, or recklessly failed to
act with reasonable care to mitigate the risk
-9-

that the condition posed to the pretrial
detainee even though the defendant-official
knew, or should have known, that the condition
posed an excessive risk to health or safety. In
other words, the “subjective prong” (or “mens
rea prong”) of a deliberate indifference claim
is defined objectively.
Darnell, 849 F.3d at 35.
Plaintiff

alleges

that

he

suffers

from

type

II

diabetes and the autoimmune disease, lupus. He is on a
blood-thinning medication because his lupus makes him
prone to blood clots.

Id., pp. 6, 9.

Because unnamed

individuals at the Jail “never gave [him] [his] blood
thinner [Coumadin] for days,” he was taken to Newark
Wayne Hospital for blood clots in his feet and legs. Id.,
p.

9.

The

food

he

was

given

at

the

Jail

was

not

appropriate for his dietary needs as a diabetic. Instead
of providing him a proper diet, employees at the Jail
gave him insulin, which caused his glucose levels to
increase dramatically and caused him to suffer dizzy
spells and weakness “that came and went all through the
day.” Id. Plaintiff attaches an unsworn affidavit from
an inmate at the ail stating that Plaintiff spent more

- 10 -

than a month in the Jail medical unit, that Plaintiff’s
diet at the Jail “is the same as all the other healthy
inmates with the only difference being no cookies,” and
that, on an unspecified date, Plaintiff had to wait until
the next day for medical attention “when a nurse was not
on duty.”

Id., p. 30.

Viewing the Amended Complaint’s allegations in the
light most favorable to Plaintiff, the Court finds that
it plausibly alleges the denial of medical care for two
sufficiently serious medical conditions, his diabetes and
his propensity to develop blood clots due to his lupus.
However, the Amended Complaint lacks any allegations
regarding the personal involvement of any of the named
defendants.

Nor

has

Plaintiff

sought

to

add

any

additional individuals, such as employees at the Jail,
as defendants. In view of his pro se status, Plaintiff
will be given one more opportunity to amend his pleading
to set forth non-conclusory allegations regarding the
specific individual or individuals who were involved in
denying him a nutritionally appropriate diet and proper

- 11 -

care for his diabetes and denying him his blood-thinning
medication

for

his

addition,

Plaintiff

plausibly

suggest

lupus-related
must

that

plead

the

blood

clots.

sufficient

state

of

mind

In

facts

to

prong

is

satisfied, that is, whether an objectively reasonable
person in the personally-involved individual’s position
would have known, or should have known, that his or her
actions or omissions posed an excessive risk of harm to
Plaintiff. Davis, 283 F. Supp.3d at 120 (citing Darnell,
849 F.3d at 35; Lloyd, 246 F.Supp.3d at 719; footnote
omitted).
Thus,

Plaintiff’s

Due

Process

claims

will

dismissed without prejudice, with leave to amend

be
as

instructed above.
F. Claims Relating to the Investigators’ Grand Jury
Testimony
To the extent that Plaintiff alleges any of the
Defendants offered perjured Grand Jury testimony, the
Court

finds

that

Defendants

are

immune

from

suit.

Indeed, witnesses are absolutely immune from damages
liability for making false or defamatory statements in
- 12 -

judicial proceedings. Burns v. Reed, 500 U.S. 478, 489
(1991); see also Briscoe v. Lahue, 460 U.S. 325 (1983)
(noting that witnesses are absolutely immune “even if the
witness knew the statements were false and made them with
malice”).

This immunity applies to “any hearing before

a tribunal which perform[ed] a judicial function.”
(citation omitted).
to

suit,

and

these

Id.

Accordingly, Defendants are immune
claims

must

be

dismissed

with

prejudice.
III. Motions for Service by the Marshals Service and
Appointment of Counsel
These motions are stayed are denied without prejudice
with leave to renew after the screening of Plaintiff’s
second amended complaint, should he elect to file one.
CONCLUSION
IT HEREBY IS ORDERED, that Plaintiff’s request to
proceed in forma pauperis is GRANTED;
FURTHER, that the Amended Complaint is dismissed
without prejudice as to Plaintiff’s Due Process claims,
with leave to replead; it is dismissed without prejudice
as to Plaintiff’s false arrest claim with leave to refile
- 13 -

in the event his conviction is later invalidated or
overturned; and it is dismissed with prejudice as to
Plaintiff’s claim of perjury by grand jury witnesses; and
FURTHER, that Plaintiff’s second amended complaint,
should he elect to file one, must be filed within thirty
(30) days of his receipt of this Decision and Order; and
FURTHER, that Plaintiff’s motions for service and
appointment of counsel are denied without prejudice with
leave to renew after the screening of Plaintiff’s second
amended complaint, should he elect to file one.
ALL OF THE ABOVE IS SO ORDERED.
S/Michael A. Telesca
__________________________
HON. MICHAEL A. TELESCA
United States District Judge

Dated:

December 26, 2018
Rochester, New York

- 14 -