Canale v. Doe

• Court: District Court, N.D. New York
• Decided: October 3, 2025
• Docket: 1:25-cv-00920
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK _______________________________________________

MATTHEW CANALE, Plaintiff,

v. 1:25-cv-00920 (BKS/TWD) KERRI DOE, Defendant. _______________________________________________

APPEARANCES:

MATTHEW CANALE Plaintiff, pro se Warren County Correctional Facility 1400 State Route 9 Lake George, NY 12845

THÉRÈSE WILEY DANCKS, United States Magistrate Judge

REPORT-RECOMMENDATION AND ORDER I. INTRODUCTION The Clerk has sent to the Court for review a complaint submitted by pro se plaintiff Matthew Canale (“Plaintiff”). Dkt. No. 1. Plaintiff, who is presently confined at the Warren County Correctional Facility, has not paid the filing fee for this action and seeks leave to proceed in forma pauperis (“IFP”). Dkt. No. 2. II. IFP APPLICATION “28 U.S.C. § 1915 permits an indigent litigant to commence an action in a federal court without prepayment of the filing fee that would ordinarily be charged.” Cash v. Bernstein, No. 1:09-CV-1922, 2010 WL 5185047, at *1 (S.D.N.Y. Oct. 26, 2010). “Although an indigent, incarcerated individual need not prepay the filing fee at the time of filing, he must subsequently pay the fee, to the extent he is able to do so, through periodic withdrawals from his inmate accounts.” Id. (citing 28 U.S.C. § 1915(b); Harris v. City of New York, 607 F.3d 18, 21 (2d Cir. 2010)).1 Upon review of Plaintiff’s IFP application, the Court finds Plaintiff has demonstrated

sufficient economic need and filed the inmate authorization form required in the Northern District of New York. Dkt. Nos. 2, 3. Therefore, Plaintiff is granted permission to proceed IFP.2 III. DISCUSSION A. Standard of Review Section 1915 of Title 28 requires a district court to dismiss an IFP complaint if the action is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. See 28 U.S.C. § 1915(e)(2)(B)(i)-(iii); Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998). The Court must also dismiss a complaint, or portion thereof, when the Court lacks subject matter jurisdiction. See Fed. R. Civ. P. 12(h)(3) (“If the court determines at any time that it lacks

subject-matter jurisdiction, the court must dismiss the action.”). While the law mandates dismissal on any of these grounds, the Court is obliged to construe pro se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret them to raise the “strongest arguments that they suggest.” Triestman v. Fed. Bureau of Prisons,

1 Section 1915(g) prohibits a prisoner from proceeding IFP where, absent a showing of “imminent danger of serious physical injury,” “a prisoner has filed three or more actions that were subsequently dismissed as frivolous, malicious, or failing to state a claim upon which relief may be granted.” 28 U.S.C. § 1915(g). The Court has reviewed Plaintiff’s litigation history on the Federal Judiciary’s Public Access to Court Electronic Records (“PACER”) Service. See http://pacer.uspci.uscourts.gov. It does not appear from that review Plaintiff had accumulated three strikes for purposes of 28 U.S.C. § 1915(g) as of the date this action was commenced. 2 Plaintiff should note that, although his IFP application has been granted, he will still be required to pay fees that he may incur in this action, including copying and/or witness fees. 470 F.3d 471, 474-75 (2d Cir. 2006) (internal quotation marks and citation omitted, emphasis in original). A claim is frivolous when it “lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989), abrogated on other grounds Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007); see also Denton v. Hernandez, 504 U.S. 25, 33 (1992) (“[A] finding of

factual frivolousness is appropriate when the facts alleged rise to the level of the irrational or the wholly incredible.”); Livingston, 141 F.3d at 437 (“[A]n action is ‘frivolous’ when either: (1) the factual contentions are clearly baseless . . . or (2) the claim is based on an indisputably meritless legal theory.”). Additionally, when reviewing a complaint, a court may look to the Federal Rules of Civil Procedure. To survive dismissal for failure to state a claim, a complaint must contain a short and plain statement of the claim showing that the pleader is entitled to relief. Fed. R. Civ. P. 8(a)(2).3 This short and plain statement of the claim must be “plausible on its face.” Twombly, 550 U.S. at 570. “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In determining whether a complaint states a claim upon which relief may be granted, “the court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff’s favor.” Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994) (citations omitted). However, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678.

3 See also Fed. R. Civ. P. 10(b) (“A party must state its claims or defenses in numbered paragraphs, each limited as far as practicable to a single set of circumstances. A later pleading may refer by number to a paragraph in an earlier pleading. If doing so would promote clarity, each claim founded on a separate transaction or occurrence--and each defense other than a denial--must be stated in a separate count or defense.”). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. Generally, a court should not dismiss a pro se complaint “without granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid

claim might be stated.” Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999) (citation and internal quotation marks omitted). However, an opportunity to amend is not required where “the problem with [the plaintiff’s] causes of action is substantive” such that “better pleading will not cure it.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000). B. Overview of Plaintiff’s Complaint The following facts are set forth as alleged by Plaintiff in his complaint. Dkt. No. 1.4 Plaintiff “signed into a contract with Prime Storage Group” in Glens Falls, New York in June of 2024. Dkt. No. 1 at 5. The monthly rate started at $110.00. Id. In October of 2024, Plaintiff’s monthly rate was “selectively raised” to $148.00, “while others stayed the same.” Id. “Later that month they informed [Plaintiff] that they had to cut the lock without [his] prior knowledge due

soley to a past due balance.” Id. Plaintiff then “paid off the past due plus one month in advance.” Id. In January of 2025, “they raised [Plaintiff’s] rate again to 192 a month selectively descriminating [against Plaintiff] for being a loyal customer while [he] knew of others personally with the same size unit who paid a fraction of that.” Id.

4 Citations to Plaintiff’s complaint will refer to the pagination generated by CM/ECF, the Court’s electronic filing system. Unless otherwise indicated, excerpts from the record are reproduced exactly as they appear in the original and errors in spelling, punctuation, and grammar have not been corrected. On March 25, 2025, Plaintiff spoke with “Kerri” at “Prime Storage” and told her he was incarcerated and provided the address. Id. On May 2, 2025, Plaintiff called Kerri to tell her that he “would be trying to get payment made.” Id. Plaintiff was informed the balance was over $700.00. Id. On June 8, 2025, Plaintiff told Kerri a “check for $250.00 was on its way” and

asked if she would contact Plaintiff’s family to see if they would pay the remaining balance. Id. at 6. Kerri said, “Ok.” Id. On June 24, 2025, Plaintiff “received back the check in the amount of $250.00 made out to Prime Storage.” Id. Included with the check was a “very unprofessional” and “unsigned” letter, dated June 18, 2025.5 Id. at 6-7, 9. The letter states, in part: This letter is to advise you that the contents of your storage unit [#417] at Prime Storage, 128 Dix Ave, Glen Falls, NY 12801 (the “Premises”) have been auctioned.

You are no longer welcome on the Premises. Please refrain from any further contact with any of the staff on the Premises.

Any attempt by you to enter onto the Premises or contact any staff on the Premises will be reported to the appropriate authorities.

Id. at 9. Plaintiff claims his property was “auctioned off without any notice to me at my updated address.” Id. at 7. Plaintiff called Kerri at Prime Storage and she told Plaintiff she “didn’t know that [Plaintiff’s] stuff was auctioned off on May 22, 2025.” Id. at 7. Plaintiff claims Kerri knew he was incarcerated at the Warren County Jail and did not receive email. Id. Plaintiff had a “tremendous amount of valuables and property in storage unit 417 at 128 Dix Ave. Glens Falls, NY 12801.” Id. Specifically, Plaintiff states:

5 A copy of the letter is attached to the complaint. Dkt. No. 1 at 9. The letter is addressed to Plaintiff at the Warren County Correctional Facility and appears to have been sent from “Prime Group Holdings” with an address of “85 Railroad Place in Saratoga Springs, NY 12866”. See id. In the unit was approximately $1,000 or more in antiques. As well as a wash machine, a dryer and two nice dressers. In addition was all of my ski racing equipment, three pairs of race skis and equipment totaling $2000. Also there was a mattress, box spring, and bed frame at $50. All of my clothes valued around $250.00. Most importantly, all of my ski racing medals and every memory of my deceased.

Id. “Kerri Doe, Prime Storage Manager” is the sole defendant listed in Plaintiff’s complaint.6 See id. at 2 (hereafter “Defendant Kerri Doe”). Plaintiff lists three claims: (1) “14 Amendment right to property”; (2) “Deliberate indifference”; and (3) “Equal Rights & Right Against Descrimination”. Id. at 17; see also id. at 7-8 (“I am commencing action for declaratory relief in compensation for monetary damages for violation of my constitutional right to property under the 14th Amendment. As well as an equal rights violation, as I’ve been required to pay more than others for the same size unit. In addition, I am claiming a violation of New York General Business Law § 349. Prime Group is in violation of New York Lien Law § 185 for improper sale of personal property. Additionally, I am seeking punitive damages.”). C. Analysis The subject matter jurisdiction of the federal district courts is limited and is set forth in 28 U.S.C. §§ 1331 and 1332. Under these statutes, a federal district court has jurisdiction only when a “federal question” is presented, 28 U.S.C. § 1331, or when plaintiff and defendant are

6 Rule 10(a) of the Federal Rules of Civil Procedure provides that “the title of the complaint must name all the parties.” Fed. R. Civ. P. 10(a). A party not named in the caption of the complaint is not a party to the action. See Abbas v. United States, No. 10-CV-0141, 2014 WL 3858398, at *2 (W.D.N.Y. Aug. 1, 2014) (holding that the failure to name a party in the caption makes it “infeasible for the Court to determine which of the individual officers mentioned in the body of the complaint should be deemed to be defendants to which claims”). “If [ ] people are not [ ] named in the caption of the [ ] complaint, they will not be defendants in the case.” See Whitley v. Krinser, No. 06-CV-0575, 2007 WL 2375814, at *1 (W.D.N.Y. Aug. 15, 2007). citizens of different states and the amount in controversy exceeds $75,000, 28 U.S.C. § 1332. “[A]ny party or the court sua sponte, at any stage of the proceedings, may raise the question of whether the court has subject matter jurisdiction.” Manway Constr. Co. v. Hous. Auth. of Hartford, 711 F.2d 501, 503 (2d Cir. 1983); see Fed. R. Civ. P. 12(h)(3) (“If the court determines

at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.”); Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999) (“[S]ubject-matter delineations must be policed by the courts on their own initiative[.]”). 1. Federal Question Jurisdiction To invoke federal question jurisdiction, a plaintiff must assert claims that arise “under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. A case arises under federal law if the complaint “establishes either that federal law creates the cause of action or that the plaintiff’s right to relief necessarily depends on resolution of a substantial question of federal law.” Bay Shore Union Free Sch. Dist. v. Kain, 485 F.3d 730, 734-35 (2d Cir. 2007) (quoting Empire Healthchoice Assurance, Inc. v. McVeigh, 547 U.S. 677, 690 (2006)).

Liberally construed Plaintiff seeks money damages under 42 U.S.C. § 1983 for violations of his constitutional rights. Dkt. No. 1. Dkt. No. 1 at 7-8, 17. “The purpose of § 1983 is to deter state actors from using the badge of their authority to deprive individuals of their federally guaranteed rights and to provide relief to victims if such deterrence fails.” Kisembo v. NYS Office of Children & Family Servs., 285 F. Supp. 3d 509, 518 (N.D.N.Y. 2018) (quoting Wyatt v. Cole, 504 U.S. 158, 161 (1992)). However, “Section 1983 itself creates no substantive rights; it provides only a procedure for redress for the deprivation of rights established elsewhere.” Kisembo, 285 F. Supp. 3d at 518 (quoting Sykes v. James, 13 F.3d 515, 519 (2d Cir.1993)). Thus, a Section 1983 claim requires a plaintiff to show (1) the deprivation of a right, privilege, or immunity secured by the Constitution and its laws by (2) a person acting under the color of state law. See 42 U.S.C. § 1983; see also Flagg v. Yonkers Sav. & Loan Ass’n, FA, 396 F.3d 178, 186 (2d Cir. 2005) (“Because the United States Constitution regulates only the Government, not private parties, a litigant claiming that his constitutional rights have been violated must first

establish that the challenged conduct constitutes ‘state action.’”) (quoting United States v. Int’l. Bhd. of Teamsters, 941 F.2d 1292, 1295 (2d Cir. 1991)). “State action requires both the exercise of some right or privilege created by the State and the involvement of a person who may fairly be said to be a state actor.” Meadows v. United Servs., Inc., 963 F.3d 240, 243 (2d Cir. 2020) (quoting Flagg, 396 F.3d at 186) (emphasis in original, internal quotation marks and alterations omitted). Plaintiff makes no allegation that Defendant Kerri Doe is a state actor. On the contrary, she appears to be a private citizen employed by a private company. Dkt. No. 1 at 2. “It is axiomatic that private citizens and entities are not generally subject to Section 1983 liability.” Anilao v. Spota, 774 F. Supp. 2d 457, 497 (E.D.N.Y. 2011) (citing cases). However, “a private

citizen may be deemed to be a state actor when he is ‘a willful participant in joint action with the State or its agents.’” Bang v. Utopia Rest., 923 F. Supp. 46, 49 (S.D.N.Y. 1996) (quoting Dennis v. Sparks, 449 U.S. 24, 27-28 (1980)). Here, however, the complaint is similarly devoid of any allegations to that effect. Accordingly, the Court recommends that Plaintiff’s Section 1983 claims against Defendant Kerri Doe be dismissed for failure to state a claim upon which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii). 2. Diversity Jurisdiction A federal court may adjudicate state law claims pursuant to its diversity of citizenship jurisdiction. “Diversity jurisdiction exists where the parties are citizens of different states and the amount in controversy exceeds $75,000.” Ceglia v. Zuckerberg, 772 F. Supp. 2d 453, 455

(W.D.N.Y. 2011). “A case falls within the federal district court’s original diversity jurisdiction only if diversity of citizenship among the parties is complete, i.e., only if there is no plaintiff and no defendant who are citizens of the same State.” Wisconsin Dep’t of Corr. v. Schacht, 524 U.S. 381, 388 (1998) (internal quotations omitted). Complete diversity is required – meaning if any defendant is a resident of the same state as the plaintiff, diversity jurisdiction does not exist. Seemann v. Maxwell, 178 F.R.D. 23, 24 (N.D.N.Y. 1998). For diversity purposes, an individual is a citizen of the state where he is domiciled, which is defined as the place where a person “has his true fixed home . . . and to which, whenever he is absent, he has the intention of returning.” Palazzo ex rel. Delmage v. Corio, 232 F.3d 38, 42 (2d Cir. 2000). A corporation is a citizen of both the state where it is incorporated and the state

where it has its principal place of business, usually its headquarters. Hertz Corp. v. Friend, 559 U.S. 77, 92-93 (2010). When a plaintiff is incarcerated, there is a rebuttable presumption that he retains his pre- incarceration domicile, rather than establishing a new domicile based on the location of his current incarceration. See Blumatte v. Quinn, 521 F. Supp. 2d 308, 312 n.3 (S.D.N.Y. 2007) (citation omitted). The relevant inquiry here is what a plaintiff’s domicile was at the time of filing. See Freeport-McMoRan, Inc. v. K N Energy, Inc., 498 U.S. 426, 428 (1991) (per curiam) (“[D]iversity of citizenship is assessed at the time the action is filed.”). Plaintiff alleges Defendant Kerri Doe is a citizen of New York, but he does not identify the state of his pre-incarceration domicile. Dkt. No. 1 at 2. The Court is therefore unable to determine that Plaintiff and Defendant Kerri Doe are citizens of different states. Assuming Plaintiff is also a citizen of New York, complete diversity would be lacking. Moreover, it does

not appear to a “reasonable probability” that the claims exceeds $75,000. See id. at 7. The complaint thus lacks the allegations required to invoke diversity jurisdiction under 28 U.S.C. § 1332. 3. Supplemental Jurisdiction A district court may decline to exercise supplemental jurisdiction over state law claims when it “has dismissed all claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3). Generally, “when the federal-law claims have dropped out of the lawsuit in its early stages and only state-law claims remain, the federal court should decline the exercise of jurisdiction.” Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988). Having recommended dismissal of the Section 1983 claims over which the Court has original

jurisdiction, the Court also recommends that the District Court decline to exercise its supplemental jurisdiction over any state law claims Plaintiff may be asserting. D. Dismissal with Leave to Amend Based on the foregoing the Court recommends dismissal of the complaint for failure to state a claim upon which relief may be granted. “Generally leave to amend should be freely given, and a pro se litigant in particular should be afforded every reasonable opportunity to demonstrate that he has a valid claim.” Matima v. Celli, 228 F.3d 68, 81 (2d Cir. 2000) (cleaned up). Accordingly, the Court recommends that the complaint be dismissed, but that Plaintiff be afforded an opportunity to amend. The Court advises Plaintiff that should he be permitted to amend his complaint, any amended pleading he submits must comply with Rules 8 and 10 of the Federal Rules of Civil Procedure. Any such amended complaint, which shall supersede and replace in its entirety the previous complaint filed by Plaintiff, must contain sequentially numbered paragraphs containing

only one act of misconduct per paragraph. Plaintiff is further cautioned that no portion of his prior complaint shall be incorporated into his amended complaint by reference. Any amended complaint submitted by Plaintiff must set forth all of the claims he intends to assert against the defendants and must demonstrate that a case or controversy exists between the Plaintiff and the defendants which Plaintiff has a legal right to pursue and over which this Court has jurisdiction. If Plaintiff is alleging that the named defendant violated a law, he should specifically refer to such law. Of course, Plaintiff may also pursue his claims in state court if appropriate. IV. CONCLUSION WHEREFORE, it is hereby ORDERED that Plaintiff’s motion to proceed IFP (Dkt. No. 2) is GRANTED; and it is

further ORDERED that the Clerk shall provide the Superintendent of the facility, designated by Plaintiff as his current location, with a copy of Plaintiff’s inmate authorization (Dkt. No. 3) and notify the official that this action has been filed and that Plaintiff is required to pay the Northern District of New York the statutory filing fee of $350.00 in installments, over time, pursuant to 28 U.S.C. § 1915; and it is further ORDERED that the Clerk shall provide a copy of Plaintiff’s inmate authorization (Dkt. No. 3) to the Financial Deputy of the Clerk’s Office; and it is further RECOMMENDED that Plaintiff's complaint (Dkt. No. 1) be DISMISSED WITH LEAVE TO AMEND; and it is further ORDERED that the Clerk provide to Plaintiff a copy of this Report-Recommendation and Order, along with copies of the unpublished decisions cited herein in accordance with the Second Circuit decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam). Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen (14) days within which to file written objections to the foregoing report.’ Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN (14) DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec’y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72. IT IS SO ORDERED. Dated: October 3, 2025 Syracuse, New York Theérése Wiley Dancks United States Magistrate Judge

you are proceeding pro se and are served with this Report-Recommendation and Order by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the Report-Recommendation and Order was mailed to you to serve and file objections. Fed. R. Civ. P. 6(d). Ifthe last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. P. 6(a)(1)(C).

2010 WL 5185047 York State Department of Correctional Services, commenced Only the Westlaw citation is currently available. this action on or about January 12, 2009 by submitting his United States District Court, complaint to the Court's Pro Se office. Plaintiff alleges, in S.D. New York. pertinent part, that he has “a non-healing ulcer that is gane green [sic ]” and that defendant Bernstein “did not want David J. CASH, Plaintiff, to treat the ulcer right” (Complaint, dated March 3, 3009 v. (Docket Item 2) (“Compl.”), at 3). BERNSTEIN, MD, Defendant. The action was originally commenced against two defendants No. 09 Civ.1922(BSJ)(HBP). —Dr. Bernstein and Dr. Finkelstein. The action was dismissed | as to Dr. Finkelstein because the complaint contained no Oct. 26, 2010. allegations whatsoever concerning Dr. Finkelstein (Order dated February 18, 2010 (Docket Item 9)). REPORT AND RECOMMENDATION1 On March 4, 2010, the sole remaining defendant—Dr. Bernstein—filed the current motion. Plaintiff failed to submit 1 At the time the action was originally filed, a response. Accordingly, on August 20, 2010, I issued an Order advising plaintiff that if he wished to oppose the the Honorable Leonard B. Sand, United States motion, he must submit his opposition by September 15, 2010 District Judge, granted plaintiff's application for in and that after that date I would consider the motion fully forma pauperis status based on plaintiff's ex parte submitted and ripe for decision (Order dated August 20, 2010 submission (Docket Item 1). Although the present (Docket Item 15)). The only submission plaintiff has made application seeking to revoke plaintiff's in forma in response to my Order is a multi-part form issued by the pauperis status is non-dispositive, I address it by New York State Department of Correctional Services entitled way of a report and recommendation to eliminate “Disbursement or Refund Request.”2 By this form, plaintiff any appearance of a conflict between the decision appears to request that the New York State Department of of a district judge and that of a magistrate judge. Correctional Services pay the filing fee for this action. The form is marked “Denied.” PITMAN, United States Magistrate Judge. *1 TO THE HONORABLE BARBARA S. JONES, United 2 Plaintiff sent this form directly to my chambers, States District Judge, and it has not been docketed by the Clerk of the Court. The form will be docketed at the time this Report and Recommendation is issued. I. Introduction By notice of motion dated March 4, 2010 (Docket Item 11), III. Analysis defendant moves pursuant to 28 U.S.C. § 1915(g) to revoke 28 U.S.C. § 1915 permits an indigent litigant to commence plaintiff's in forma pauperis (“IFP”) status on the ground that an action in a federal court without prepayment of the filing plaintiff has previously had at least three Section 1983 actions fee that would ordinarily be charged. Although an indigent, dismissed as frivolous, malicious or failing to state a claim incarcerated individual need not prepay the filing fee at the upon which relief could be granted, and has not shown that he time at the time of filing, he must subsequently pay the fee, is in imminent danger of serious physical injury. Defendant to the extent he is able to do so, through periodic withdrawals further seeks an order directing that the action be dismissed from his inmate accounts. 28 U.S.C. § 1915(b); Harris v. unless plaintiff pays the full filing fee within thirty (30) days. City of New York, 607 F.3d 18, 21 (2d Cir.2010). To prevent For the reasons set forth below, I respectfully recommend that abuse of the judicial system by inmates, paragraph (g) of defendant's motion be granted. this provision denies incarcerated individuals the right to proceed without prepayment of the filing fee if they have II. Facts repeatedly filed meritless actions, unless such an individual Cir.2004) (“[T]he purpose of the PLRA ... was plainly to 3 It appears that plaintiff uses the names David curtail what Congress perceived to be inmate abuses of the J. Cash and Dennis Nelson interchangeably. In judicial process.”); Nicholas v. Tucker, 114 F.3d 17, 19 (2d his complaint in this matter, plaintiff states that Cir.1997). Specifically, paragraph (g) provides: the Departmental Identification Number, or DIN, assigned to him by the New York State Department of Correctional Services (“DOCS”) is 94–B–0694 *2 In no event shall a prisoner bring (Compl. at 7). DOCS inmate account records a civil action or appeal a judgment submitted by plaintiff in connection with his in a civil action or proceeding under application for IFP status indicate that DIN 94– this section if the prisoner has, on B–0694 is assigned to Dennis Nelson. In addition, 3 or more prior occasions, while the DOCS form described in footnote two bears incarcerated or detained in any facility, the docket number of this action, but is signed in brought an action or appeal in a court the name of Dennis Nelson and was sent in an of the United States that was dismissed envelope identifying the sender as Dennis Nelson. on the grounds that it is frivolous, A subsequent action has been filed in this Court malicious, or fails to state a claim upon in which the plaintiff identifies himself as Dennis which relief may be granted, unless the Nelson but lists his DIN as 94–B–0694, the same prisoner is under imminent danger of DIN used by plaintiff here. Finally, plaintiff has serious physical injury. submitted nothing to controvert the assertion in defendant's papers that David Cash and Dennis Nelson are the same person. In light of all these 28 U.S.C. § 1915(g). facts, I conclude that David Cash and Dennis Nelson are both names used by plaintiff. If an inmate plaintiff seeks to avoid prepayment of the filing fee by alleging imminent danger of serious physical injury, • In Nelson v. Nesmith, No. 9:06–CV–1177 (TJM)(DEP), there must be a nexus between the serious physical injury 2008 WL 3836387 (N.D.N.Y. Aug. 13, 2008), plaintiff asserted and the claims alleged. Pettus v. Morgenthau, 554 again filed an action concerning the medical care F.3d 293, 298 (2d Cir.2009). he was receiving for his left leg. The Honorable Thomas J. McAvoy, United States District Judge, Section 1915(g) clearly prevents plaintiff from proceeding accepted the Report and Recommendation of Magistrate in this action without prepayment of the filing fee. Judge Peebles, and revoked plaintiff's IFP status and The memorandum submitted by defendant establishes that dismissed the action on the ground that plaintiff had plaintiff has had his IFP status revoked on at least four prior previously commenced at least three actions that had occasions as a result of his repeatedly filing meritless actions. been dismissed on the merits. 2008 WL 3836387 at *1, *7. • In 2005, plaintiff commenced an action in the United States District Court for the Northern District of New • In Nelson v. Spitzer, No. 9:07–CV–1241 (TJM) York seeking to have his infected leg amputated. (RFT), 2008 WL 268215 (N.D.N.Y. Jan. 29, 2008), Nelson3 v. Lee, No. 9:05–CV–1096 (NAM)(DEP), 2007 Judge McAvoy again revoked plaintiff's IFP status WL 4333776 (N.D.N.Y. Dec. 5, 2007). In that matter, on the ground that plaintiff had commenced three the Honorable Norman A. Mordue, Chief United States or more actions that constituted “strikes” under District Judge, accepted and adopted the Report and Section 1915(g) and had not shown an imminent Recommendation of the Honorable David E. Peebles, threat of serious physical injury. 2008 WL 268215 United States Magistrate Judge, that plaintiff had at *1–*2. brought three or more prior actions that had been • Finally, in Nelson v. Chang, No. 08–CV–1261 dismissed for failure to state a claim and that plaintiff's (KAM)(LB), 2009 WL 367576 (E.D.N.Y. Feb. 10, IFP status should, therefore, be revoked. 2007 WL 2009), the Honorable Kiyo A. Matsumoto, United cases discussed above, that plaintiff had exhausted that this vague statement is insufficient to support a finding the three strikes permitted by Section 1915(g) that plaintiff is in imminent danger of serious physical and could not proceed IFP in the absence of a injury.5 demonstration of an imminent threat of serious physical injury. 2009 WL 367576 at *2–*3. 5 Plaintiff has sent me several letters describing his *3 As defendant candidly admits, there is one case in which wound and its symptoms in detail, and I have plaintiff's leg infection was found to support a finding of an no doubt that the wound is serious. However, in imminent threat of serious physical injury sufficient to come granting summary judgment dismissing an action within the exception to Section 1915(g). Nelson v. Scoggy, last year based on the same allegations, Judge No. 9:06–CV–1146 (NAM)(DRH), 2008 WL 4401874 at *2 Mordue of the Northern District found that there (N.D.N.Y. Sept. 24, 2008). Nevertheless, summary judgment was no genuine issue of fact that plaintiff's own was subsequently granted for defendants in that case, and conduct was responsible for the ineffectiveness of the complaint was dismissed. Judge Mordue concluded that the treatment he was provided: there was no genuine issue of fact that plaintiff had received Furthermore, to the extent that Nelson's medical adequate medical care for his leg wound and that the failure treatment was delayed, much of the delay of the leg to heal was the result of plaintiff's own acts of was due to his own refusal to cooperate with self-mutilation and interference with the treatment provided. medical staff and his self-mutilations. Nelson's Nelson v. Scoggy, No. 9:06–CV–1146 (NAM)(DRH), 2009 actions to thwart the medical treatment of his WL 5216955 at *3–*4 (N.D.N.Y. Dec. 30, 2009).4 wound cannot be construed as interference or indifference by anyone else.... [T]he medical 4 Although the form complaint utilized by plaintiff treatment Nelson received complied with expressly asks about prior actions involving the constitutional guarantees as it was appropriate, same facts, plaintiff disclosed only the Scoggy timely, and delayed only by Nelson's own action and expressly denied the existence of any actions. other actions relating to his imprisonment (Compl. Nelson v. Scoggy, supra, 2009 WL 5216955 at *4. at 6). Given plaintiff's total failure to respond to the pending motion and his failure to even deny that In light of the foregoing, there can be no reasonable dispute he is actively thwarting treatment of his wound, it that plaintiff has exceeded the three “strikes” allowed by would be sheer speculation for me to conclude that Section 1915(g) and that he cannot, therefore, proceed here he is in imminent danger of a serious injury as a without prepaying the filing fee unless he demonstrates result of defendant's conduct. an imminent threat of serious physical injury. Plaintiff has declined to attempt to make this showing in response to defendant's motion, and the only suggestion in the record IV. Conclusion of serious physical injury is the bare statement in the Accordingly, for all the foregoing reasons, I find that plaintiff complaint that plaintiff “need[s] to go back to a wound speci has had three or more prior actions dismissed as being [a]list before the gane green [sic ] kills [him]” (Compl. at frivolous, malicious or failing to state a claim and that 5). “However, unsupported, vague, self-serving, conclusory plaintiff's in forma pauperis status should, therfore, be speculation is not sufficient to show that Plaintiff is, in fact, revoked. If your Honor accepts this recommendation, I further in imminent danger of serious physical harm.” Merriweather recommend that the action be dismissed unless plaintiff pays v. Reynolds, 586 F.Supp.2d 548, 552 (D.S.C.2008), citing the filing fee in full within thirty (30) days of your Honor's Ciarpaglini v. Saini, 352 F.3d 328, 330 (7th Cir.2003) and final resolution of this motion. White v. Colorado, 157 F.3d 1226, 1231–32 (10th Cir.1998); see also Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir.2003) V. OBJECTIONS (imminent danger exception to Section 1915(g) requires Pursuant to 28 U.S.C. § 636(b)(1)(C) and Rule 72(b) of “specific fact allegations of ongoing serious physical injury, the Federal Rules of Civil Procedure, the parties shall have or of a pattern of misconduct evidencing the likelihood fourteen (14) days from receipt of this Report to file written of imminent serious physical injury”). Given the plaintiff's with courtesy copies delivered to the Chambers of the Cir.1997); IUE AFL–CIO Pension Fund v. Herrmann, 9 F.3d Honorable Barbara S. Jones, United States District Judge, 1049, 1054 (2d Cir.1993); Frank v. Johnson, 968 F.2d 298, 500 Pearl Street, Room 1920, and to the Chambers of the 300 (2d Cir.1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 57– undersigned, 500 Pearl Street, Room 750, New York, New 59 (2d Cir.1988); McCarthy v. Manson, 714 F.2d 234, 237– York 10007. Any requests for an extension of time for filing 38 (2d Cir.1983). objections must be directed to Judge Jones. FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT All Citations IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. Thomas v. Arn, 474 U.S. 140, 155 Not Reported in F.Supp.2d, 2010 WL 5185047 End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works. 2014 WL 3858398 make scanning them very difficult, the Court has Only the Westlaw citation is currently available. not required the Clerk's Office to scan them into the United States District Court, court's electronic filing system. They will instead W.D. New York. be maintained in paper form in a separate file in the Clerk's Office. See note to Docket No. 6. Shariff ABBAS, Plaintiff, v. DISCUSSION UNITED STATES of America, Defendant. A. Bivens Claims No. 10–CV–0141S. The August 16 Order directed, inter alia, that plaintiff's | FTCA claims stemming from his detention at the Albany Signed Aug. 1, 2014. County Jail and the PCCC be dismissed; that plaintiff be Attorneys and Law Firms granted leave to file an amended complaint adding Bivens2 or other federal claims against individual deportation officers Shariff Abbas, Flushing, NY, pro se. and other personnel at BFDF who he alleges violated his rights; and that in the even he failed to timely file an amended complaint as directed, the Court would issue an DECISION and ORDER Order directing service of the complaint upon the United States as the sole defendant to his medical malpractice claims WILLIAM M. SKRETNY, Chief Judge. brought under the FTCA. (Docket No. 5). INTRODUCTION 2 Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, *1 Plaintiff Shariff Abbas commenced this pro se action 29 L.Ed.2d 619 (1971). pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671 et seq., and other federal laws, alleging The August 16 Order noted that in addition to his FTCA violation of his rights while detained at the Buffalo Federal claims, plaintiffs original complaint asserted a variety Detention Facility (“BFDF”) in Batavia, the Albany County of violations of his constitutional rights by individual Jail and the Perry County Correctional Center (“PCCC”) in deportation officers and other personnel during his periods Uniontown, Alabama. Currently before the Court for review of detention at BFDF and that these claims would be pursuant to 28 U.S.C. § 1915(e)(2)(B) is plaintiff's amended actionable against individual defendants under the Bivens complaint1, submitted in response to the Court's Order filed doctrine, which allows a plaintiff to pursue constitutional on August 16, 2013 (“August 16 Order”) (Docket No. 6), claims against federal officials in their individual capacities which reviewed plaintiff's original complaint (Docket No. 4), for actions taken under color of federal law. See Lombardi dismissed several of the claims asserted therein, and granted v. Whitman, 485 F.3d 73, 78 (2d Cir.2007) (“[W]here an plaintiff leave to file an amended complaint. For the reasons individual ‘has been deprived of a constitutional right by set forth below, plaintiff's FTCA claims against the United a federal agent acting under color of federal authority,’ the States related to his treatment at the BFDF may proceed and individual may bring a so-called Bivens action for damages his remaining claims will be dismissed. against that federal agent in an individual capacity, provided that Congress has not forbidden such an action and that the 1 Plaintiff's amended complaint is accompanied s th it e u a a t b io se n n p c r e e s o e f n a ts f f ‘ i n rm o a s t p i e v c e i a a l c f t a io c n to b rs y c C ou o n n s g e r l e i s n s g .’ h ” e ) s i ( t i a n ti t o er n n i a n l by two voluminous bound volumes of exhibits citations omitted) (quoting Thomas v. Ashcroft, 470 F.3d 491, captioned “Exhibit's [sic] Part 1”, containing a 496 (2d Cir.2006). The Court determined, however, that the Table of Contents and exhibits 1–18 and “Exhibit Bivens claims could not proceed because of plaintiff's failure Part 2”, containing a Table of Contents and to name the individual custody officers and other officials exhibits 19–40. Given the voluminous nature of who are alleged to have violated his rights as defendants in the exhibits, numbering hundreds of pages, and Federal Rules of Civil Procedure: how those individuals violated his rights. *2 The Court cannot allow such Bivens claims to proceed, however, because of plaintiff's failure to name the individual custody officers and other officials who are (Id. at 21). (emphasis added). alleged to have violated his rights as defendants in the caption of the complaint. Rule 10 of the Federal Rules of While plaintiff's amended complaint contains allegations that Civil Procedure provides that “[t]he title of the complaint would support Bivens claims (see Amended Complaint, ¶¶ must name all the parties” Fed.R.Civ.P. 10(a). Therefore, a party that is not named in the caption of a complaint or 17–42 passim ),3 it does not name in the caption of the amended complaint is not a party to the action. complaint any individuals against whom plaintiff is seeking to assert Bivens clams, nor does the section of the complaint (August 16 Order at 16) (citations omitted). The Court captioned “PARTIES” list any individual defendants. While proceeded to note that plaintiff's failure to name in the caption plaintiff does, in the section of the amended complaint of the complaint the individual defendants against whom captioned “CONCLUSION”, set forth a list of “Federal he wished to assert Bivens claims would make it infeasible Employees from (BFDF) Health Division” (Amended for the Court to determine which of the individual custody Complaint ¶ 57), which includes individuals mentioned officers mentioned in the body of the complaint should be elsewhere in the amended complaint in connection with deemed to be defendants to such claims, given the often plaintiff's allegations that would be relevant to Bivens claims, ambiguous nature of his reference to such individuals. (Id. the individuals named therein are not listed as defendants in at 16–17). The Court therefore concluded that “[t]he way to the caption of the amended complaint or in plaintiff's recital remedy plaintiff's failure to name as defendants in the caption of the parties to this action at the beginning of the amended of his complaint those individuals against whom he may seek complaint; as noted supra, plaintiff lists only one defendant- to assert Bivens claims, as suggested by the allegations set the United States-in the complaint caption and in his recital forth in the body of the complaint, is to afford him leave to file of the parties. Moreover, plaintiff's statement of relief sought an amended complaint which conforms to the requirements at the end of the amended complaint (captioned “PRAYER”) of Rule 10(a).” (Id. at 17) (citations omitted). “Accordingly, demands judgment “against the defendant.” (Id. at p. 16) plaintiff will be afforded the opportunity to file, as directed (emphasis added).4 below, an amended complaint in which he shall name in the caption of the complaint, each of the individuals against 3 Plaintiff divides his claims into two sections whom he intends to assert a Bivens claim or claims, in a of the amended complaint, namely “Medical manner that conforms to the requirements of Rules 8(a) and Malpractice” (Amended Complaint, p. 3–5, ¶¶ 10(a) of the Federal Rules of Civil Procedure.” (Id.). 8–16), which contains allegations supportive of his FTCA claims, and “U.S. D.H.S.-ICE Federal The Court accordingly directed, in the Conclusion of the Agency and Custody Officers Abuses” (Id. at August 16 Order, that plaintiff be given leave to file an p. 5–14, ¶¶ 17–56), which contains allegations amended complaint conforming to the requirements of Rules supportive of his Bivens constitutional claims. 8 and 10 of the Federal Rules of Civil Procedure, and the The Court notes, however, that a number of the Court again explicitly advised plaintiff of his duty to list all allegations set forth in the “Federal Agency and defendants in the caption of the complaint: Custody Officers Abuses” section of the complaint are relevant to his FTCA malpractice claims. See, e.g., Amended Complaint, ¶ 21. Plaintiff is reminded, as explained above, that if he wishes to assert Bivens 4 Plaintiff's failure to include in the caption of the or other claims against defendants amended complaint the names of any defendants other than the United States in the against whom he is asserting Bivens claims is not amended complaint, he must name the only instance of his disregard of the Court's those individuals in the caption of directives regarding the form and content of his that many of the Bivens claims that plaintiff's rules. See, e .g., Caidor v. Onondaga County, 517 F.3d 601, allegations would support against individuals 605 (2d Cir.2008) (noting that pro se litigants are required to identified in the body of the complaint appeared familiarize themselves with procedural rules and comply with to be barred by the statute of limitations. August such rules); McDonald v. Head Criminal Court Supervisor 16 Order at 18. The Court accordingly directed as Officer, 850 F.2d 121, 124 (2d Cir.1988) (“[W]hile pro se follows: litigants may in general deserve more lenient treatment than In the amended complaint that plaintiff those represented by counsel, all litigants, including pro ses, will be given leave to file, as provided have an obligation to comply with court orders. When they below, in which he must demonstrate either flout that obligation they, like all litigants, must suffer the that his Bivens claims stemming from his consequences of their actions.”)). As discussed supra, this incarceration at BFDF are timely or, if any Court's previous order explained to plaintiff the requirement such Bivens claims are untimely, he must of Rule 10(a) that all defendants to an action be named and allege facts demonstrating why equitable identified as such in the caption to the complaint, and the tolling should be applied to the statute of Court afforded him the opportunity to cure the defect in his limitations periods for such claims. initial complaint by filing an amended complaint naming (August 16 Order at 19). As noted supra, the all defendants. Plaintiff has inexplicably failed to comply August 16 Order provided that plaintiff would with the Court's order and the requirement of Rule 10(a). be given leave to file an amended complaint Accordingly, to the extent that plaintiff seeks to bring Bivens with respect to his Bivens claims, and plaintiff claims against individual Custody Officers and other BFDF was further advised, in this regard, “that he officials, see Amended Complaint, ¶ 58 (“Plaintiff want [sic] should address the timeliness of any Bivens this Court to bring Justice against Federal Agency Employees claims that he asserts in the amended complaint who Violate constitutional law against Plaintiff's rights”), and any argument as to why the limitations such claims must be dismissed in light of his failure to period applicable to such claims should be name those individuals as defendants in the caption of the equitably tolled.” (August 16 Order at 21). amended complaint. See, e.g., Ferdik v. Bonzelet, 963 F.2d However, plaintiff's amended complaint does not 1258, 1262–63 (9th Cir.1992) (dismissing action for refusal address the timeliness issue or offer any basis to comply with court orders to name defendants in the caption for equitable tolling of the limitations period. as required by Rule 10(a)). Given the Court's dismissal herein of the Bivens claims based upon plaintiff's failure to identify Moreover, as explained in the August 16 Order (pp. 14– the defendants against whom he seeks to assert 15), constitutional claims under Bivens cannot be brought such claims, the Court need not further address against the only defendant named in the complaint, the the timeliness issue. United States. See Robinson v. United States Bur. Of Prisons, Plaintiff further disregarded the August 16 Order 244 F.Supp.2d 57, 66 (N.D.N.Y.2003) (“[A] Bivens action to the extent that he reasserts claims stemming may not be maintained against the United States.”) (citing from his detention at the Albany County Jail Washington v. DEA, 183 F.3d 868, 872 n. 8 (8th Cir.1999). from February 21, 2006–March 21, 2006, and Nor can constitutional claims be asserted against the United the Perry County Correctional Center (“PCCC”) States under the FTCA. See Washington, 183 F.3d at 873; in Uniontown Alabama from August 5, 2006– Russ v. United States, 62 F.3d 201, 204 (7th Cir.1995) February 9, 2007. (Amended Complaint at ¶¶ 14, (“[C]onstitutional wrongs cannot be remedied through the 15, 28–40). The August 16 Order dismissed the FTCA,”) (citing FDIC v. Meyer, 510 U.S. 471, 476, 114 S.Ct. claims stemming from plaintiff's incarceration at 996, 1001–02, 127 L.Ed.2d 308(1994)). those facilities pursuant to 28 U.S.C. § 1406(a) for improper venue. (August 16 Order at 13–14). Plaintiff having thus having failed to name a proper defendant Those claims remain dismissed. to his Bivens claims, the Court concludes that his Bivens *3 The Court's duty to construe liberally the pleadings of claims must be dismissed pursuant to 28 U.S.C. § 1915(e)(2) pro se litigants does not absolve pro se litigants from the (B) for failure to state a claim on which relief can be granted. The Conclusion section of the amended complaint invokes, asserted by plaintiff in the amended complaint and stemming from his detention at BFDF may go forward against defendant as a basis for relief against defendant United States not raised in plaintiffs original complaint, treaties to which United States.5 the United States is a signatory. Specifically, the amended complaint states “At such time and places the United States 5 As explained in the August 16 Order, plaintiff's violates International Laws as A[sic] result the United allegations of medical malpractice and the failure States are not in compliance with Refugee Convention to properly treat his serious medical condition are Requirements or The United Nations Convention against clearly cognizable under the FTCA when asserted Torture Prohibitions.” (Amended Complaint, § 57). It is against the United States. (August 16 Order at 6). well established that the United Nations Convention Against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85, 23 I.L.M. ORDER 1027, (“CAT”) does not give rise to a private right of action. Renkel v. United States, 456 F.3d 640, 644 (6th Cir.2006) IT IS HEREBY ORDERED, that plaintiff's Bivens claims are (“As the Articles [of CAT] are not self-executing, they do dismissed with prejudice; not create private rights of action; therefore, any private lawsuit seeking to enforce the United States' obligations under FURTHER, that plaintiff's claims under CAT and the Refugee the Convention must be based on domestic law.”); Wolinski Convention are dismissed with prejudice; v, Junious, 2012 U.S. Dist. LEXIS 65889, at *18–19,2012 WL 1657576 (E.D.Cal. May 10, 2012) (“The CAT does not FURTHER, that the Clerk of the Court is directed to complete, give rise to a private right of action because it is not self- on plaintiff's behalf, and to issue, a summons for service of executing.) (citing Akhtar v. Reno, 123 F.Supp.2d 191, 196 process on defendant United States of America; (S.D.N.Y.2000), FURTHER, the Clerk of the Court is directed to send copies *4 The United Nations Convention Relating to the Status of the Summons, Amended Complaint,6 and this Order by of Refugees, adopted July 28, 1951, art. 26, 19 U.S.T. certified mail to the following, pursuant to Rule 4(i) of the 6259, 6576, 189 U.N.T.S. 150, 172 (“Refugee Convention”) Federal Rules of Civil Procedure: likewise does not create a private right of action. United States v. Casaran–Rivas, 311 Fed. Appx. 269, 272 (11th Cir.2009) 6 As explained in n. 1, supra, plaintiff's voluminous (unpublished) (“[A]rgument that the indictment violated the exhibits to the amended complaint are maintained refugee Convention and CAT Treaty is without merit, as the in paper form in a separate file folder in the Clerk's Refuge[e] Convention and CAT Treaty are not self-executing, Office. or subject to relevant legislation, and, therefore, do not confer upon aliens a private right of action to allege a violation of • Attorney General of the United States, Main Justice their terms.”); Reyes–Sanchez v. Ashcroft, 261 F.Supp.2d 276, Building, 10th and Constitution Avenues N.W., Washington, 288–89 (S.D.N.Y.2003) (“Because the Refugee Convention DC 20530; is not self-executing, it does not create individual rights.”). • Civil Process Clerk, United States Attorney for the Western Accordingly, plaintiff's claims against the United States under District of New York, United States Attorney's Office, USAO/ CAT and Refugee Convention are dismissed pursuant to 28 WDNY, 138 Delaware Avenue, Buffalo, New York 14202. U.S.C. § 1915(e)(2)(B) for failure to state a claim on which relief may be granted. SO ORDERED. C. FTCA Claims All Citations Not Reported in F.Supp.3d, 2014 WL 3858398 2007 WL 2375814 Kasacey and Peck were responsible for, plaintiff's second Only the Westlaw citation is currently available. amended complaint does not allege sufficient facts to state United States District Court, claims against Krinser, Kasacey and Peck. W.D. New York. In addition, plaintiff was directed that his second amended Vidal WHITLEY, Plaintiff, complaint “should name in the caption all of the people v. plaintiff wishes to hold responsible for each violation. Major KRINSER, Sgt. Robin Brown, Captain Winters, Plaintiff has alleged that people who are not named in the Corporal Conklin, Deputy Johnson, Lt. Prinzi, Corporal caption were responsible for violation his rights. However, if these people are not also named in the caption of the Carlo, Lt. Santillo, Sgt. Garcia, Major Kasacey, second amended complaint, they will not be defendants in the Corporal Peck, and Deputy Galling, Defendants. case.” (Docket No. 11.) Because plaintiff has not named any No. 06-CV-0575F. additional defendants in the second amended complaint, has | not included the allegations against the remaining defendants Aug. 15, 2007. named in his amended complaint, and has failed to state a claim against Krinser, Kasacey and Peck, the second amended Attorneys and Law Firms complaint is dismissed in its entirety. However, because of plaintiff's pro se status and his minimal literacy, the Court Vidal Whitley, Willard, NY, pro se. will deem the amended complaint the operative pleading in this case and allow it to proceed against all named defendants except Krinser, Kasacey and Peck. DECISION and ORDER WILLIAM M. SKRETNY, United States District Judge. CONCLUSION INTRODUCTION For the reasons set forth above, plaintiffs claims against defendants Krinser, Kasacey and Peck are dismissed pursuant *1 By an Order dated February 8, 2007, plaintiff pro se Vidal to 28 U.S.C. § 1915(e)(2)(B) and the amended complaint shall Whitley was granted permission to file a second amended be served on the remaining defendants set forth in the caption complaint in this action pursuant to 42 U.S.C. § 1983 to above. specifically address issues relating to defendants Kasacey, Krinser and Peck. For the reasons stated below, plaintiff's second amended complaint is dismissed and the amended complaint is allowed to go forward at this stage against all ORDER named defendants except as to defendants Krinser, Kasacey IT HEREBY IS ORDERED, that the claims against Krinser, and Peck. Kasacey and Peck are dismissed with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B); and, DISCUSSION FURTHER, the Clerk of the Court is directed to correct the docket to reflect that Sgt. Robin Brown, Captain Winters, Section 1915(e) (2)(B) of 28 U.S.C. provides that the Court Corporal Conklin, Deputy Johnson, Lt. Prinzi, Corporal shall dismiss a case in which in forma pauperis status has been Carlo, Lt. Santillo, Sgt. Garcia and Deputy Galling are granted if, at any time, the Court determines that the action defendants in this action; and, “(ii) fails to state a claim upon which relief may be granted.” Based on its evaluation of the complaint, the Court finds FURTHER, the Clerk of the Court is directed to cause the U.S. that plaintiffs claims against defendants Krinser, Kasacey and Marshal to serve the amended complaint (Docket No. 10) and Peck must be dismissed pursuant to 28 U.S.C. § 1915(e)(2) this Order upon the remaining defendants, Sgt. Robin Brown, (B)(ii) because they fail to state a claim upon which relief Galling. All Citations *2 SO ORDERED. Not Reported in F.Supp.2d, 2007 WL 2375814 End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.