Jarvis v. Funny Bone Comedy Club

• Court: District Court, N.D. New York
• Decided: May 28, 2025
• Docket: 5:25-cv-00645
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK _____________________________________________________________________ HOLLY JARVIS, Plaintiff, v. 5:25-CV-645 (LEK/MJK) FUNNY BONE COMEDY CLUB, ROB BELCAMINO, GERALDO ARROYO, KEMPTON TAYLOR, and VALENCIA (FULL NAME UNKNOWN) Defendants. _____________________________________________________________________ HOLLY JARVIS, Plaintiff, pro se MITCHELL J. KATZ, United States Magistrate Judge TO THE HONORABLE LAWRENCE E. KAHN, Senior United States District Judge: ORDER and REPORT-RECOMMENDATION Plaintiff commenced this action on May 21, 2025, by filing a complaint. (Dkt. 1).1 That same day, Plaintiff also filed a motion for leave to proceed in forma pauperis (“IFP”). (Dkt. 2). The Clerk has sent the complaint and IFP application to this Court for its review.

1 This case is related to Jarvis v. City of Syracuse Police Department, et al., 5:25-CV-00228 (LEK/MJK). I. IFP Application A court may waive filing fees upon finding that a plaintiff is indigent. See 28 U.S.C. § 1915(a). A plaintiff seeking to proceed in forma pauperis must submit an affidavit stating that they are “unable to pay” filing fees “or give security therefor.” Id. § 1915(a)(1). The plaintiff must also include a “statement of all assets” he or she possesses. Id. When an applicant “fails to explain how he supports himself, courts generally regard his application as incomplete and insufficient to establish an entitlement to in forma pauperis status.” Jones v. Acs/Queens Field Off., No. 23- CV-5742, 2024 WL 2818138, at *1 (E.D.N.Y. June 3, 2024). Here, Plaintiff declares in her IFP “application” that she “cannot afford to pay the court fees without compromising basic living expenses.” (Dkt. 2). Absent from Plaintiff’s self-created affidavit is any representation of her assets or details about her monthly living expenses. Without that information, the Court cannot properly assess whether Plaintiff is entitled to in forma pauperis status. Accordingly, Plaintiff’s IFP application is denied without prejudice and with leave to renew. In addition to determining whether a plaintiff meets the financial criteria to proceed IFP, the court must also consider the sufficiency of the allegations set forth in the complaint. See 28 U.S.C. § 1915 (e)(2)(B)(i)-(iii). Courts shall dismiss a case, at any time, if they determine that the action is (i) frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief. Id. When determining whether an action is frivolous, a court must consider whether the complaint lacks an arguable basis in law or in fact. See Neitzke v. Williams, 490 U.S. 319, 325 (1989), abrogated on other grounds by Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007); see also 28 U.S.C. § 1915. Dismissal of frivolous actions is appropriate to prevent abuses of court process and discourage the waste of judicial resources. See Neitzke, 490 U.S. at 327; see also Harkins v. Eldredge, 505 F.2d 802, 804 (8th Cir. 1974). Courts have a duty to show liberality toward pro se litigants and must use extreme caution when ordering sua sponte dismissal of a pro se complaint before the adverse party has been served and has had an opportunity to respond. See Fitzgerald v. First E. Seventh St. Tenants Corp., 221 F.3d 362, 363 (2d Cir. 2000). But courts must still determine that a claim is not frivolous before permitting a plaintiff to proceed. See Id. (finding that a district court may dismiss a frivolous complaint sua sponte even when the plaintiff has paid the filing fee). To survive dismissal for failure to state a claim, a complaint must contain sufficient factual matter, accepted as true, to state a claim 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)). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (citing Bell Atl. Corp., 550 U.S. at 555). Additionally, Fed. R. Civ. P. 8(a)(2) requires pleadings to contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Although Rule 8 does not require detailed factual allegations, it does “demand[] more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Houston v. Collerman, No. 9:16-CV-1009 (BKS/ATB), 2016 WL 6267968, at *2 (N.D.N.Y. Oct. 26, 2016) (quoting Ashcroft, 556 U.S. at 678). A pleading that contains allegations that “‘are so vague as to fail to give the defendants adequate notice of the claims against them’ is subject to dismissal.” Id. (citing Sheehy v. Brown, 335 F. App’x 102, 104 (2d Cir. 2009)). The Court will now consider Plaintiffs’ complaint under the above standards. II. Complaint Plaintiff’s complaint alleges the following: On November 25, 2023, Plaintiff and her son attended a show at Funny Bone Comedy Club. (Complaint (“Compl.”), at ¶ 9). Plaintiff alleges that she and her son were falsely accused of misconduct by Defendants Belcamino, Arroyo, Taylor, and Valencia after Plaintiff’s son allegedly “made physical contact with [Defendant Taylor].” (Id., at ¶¶ 10-11). Plaintiff alleges that Defendants “intentionally provided false statements to the Syracuse Police Department” which caused her emotional distress, humiliation, and reputational damage. (Id. at ¶ 16). Plaintiff was also “banned from Destiny USA properties.” (Id.). Finally, Plaintiff alleges that Defendants “failed and refused to produce surveillance footage, falsely claiming it was unavailable.” (Id., at ¶ 15). Plaintiff seeks monetary damages and injunctive relief. (Id., at 3). III. Discussion Plaintiff cannot establish that this Court has subject matter jurisdiction over this matter under 28 U.S.C. § 1332(a) (diversity jurisdiction) or 28 U.S.C § 1331 (federal question jurisdiction). This Court recommends that the complaint be dismissed without prejudice and with leave to amend. A. Subject Matter Jurisdiction 1. Diversity of Citizenship Subject matter jurisdiction under 28 U.S.C. § 1332(a)(a) exists “where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between citizens of different states.” 28 U.S.C. § 1332(a)(1). Here, the complaint alleges that “Plaintiff Holy Jarvis is a citizen of Syracuse, New York.” (Compl., ¶ 1). However, the complaint is devoid of any allegations concerning the citizenship of the remaining Defendants so that the Court can determine whether complete diversity of citizenship among the parties exists. The Court therefore recommends that the complaint be dismissed without prejudice and with leave to amend. 2. Federal Question Jurisdiction The Court has subject-matter jurisdiction under 28 U.S.C. § 1331 “of all civil actions arising under the Constitution, laws, or treaties of the United States.” To invoke this ground for jurisdiction, however, a complaint must “necessarily raise a federal issue” — that is, “a right or immunity created by the Constitution or laws of the United States [must be] an element, and an essential one, of the plaintiff’s cause of action.” Solomon v. St. Joseph Hosp., 62 F.4th 54, 63-64 (2d Cir. 2023) (citations omitted). Plaintiff’s attempt to invoke federal question jurisdiction by virtue of asserting a claim under 42 U.S.C § 1983 fails. “To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States.” West v. Atkins, 487 U.S. 42, 48 (1988). A plaintiff must also show that the “alleged deprivation was committed by a person acting under color of state law.” Id. “A defendant acts under color of state law when” they exercise “some right or privilege created by the State . . . or” they are “a person for whom the state is responsible, and” they are “a person who may fairly be said to be a state actor.” See Sykes v. McPhillips, 412 F. Supp. 2d 197, 200 (N.D.N.Y. 2006) (internal citations omitted). Here, Plaintiff does not plead any facts establishing that Defendants were acting under the color of law, are individuals who the state is responsible for, or are individuals who may fairly be called a state actor. Plaintiff’s conclusory allegation that Defendants “acte[d] jointly with public officials” is insufficient to establish a § 1983 claim. See Carr v. Gerwitz, No. 1:24-CV-1069 (AMN/DJS), 2024 WL 4712526 (N.D.N.Y. Sept. 20, 2024) (quoting Ciambriello v. Cnty. of Nassau, 292 F.3d 307, 324 (2d Cir. 2002) (“A merely conclusory allegation that a private entity acted in concert with a state actor does not suffice to state a § 1983 claim against the private entity.”). IV. Opportunity to Amend Generally, before the court dismisses a pro se complaint or any part of the complaint sua sponte, the court should afford a plaintiff the opportunity to amend at least once; however, leave to re-plead may be denied where any amendment would be futile. See Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993). Futility is present when the problem with plaintiff’s causes of action is substantive such that better pleading will not cure it. See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (citation omitted). While the Court is doubtful that Plaintiff can establish subject matter jurisdiction, it is cognizant of the solicitude ordinarily granted to pro se plaintiffs and will afford Plaintiff leave to amend to plead facts, if available and otherwise true, that would establish the Court’s jurisdiction over this matter. The Court therefore recommends dismissing the complaint without prejudice and with leave to amend. If the District Court permits this action to proceed and Plaintiff amends her pleading, she is reminded of her obligation under Fed. R. Civ. P. 8 which requires that the amended pleading contain a short and plain statement showing that she is entitled to relief. Further, if the District Court approves this report-recommendation and allows Plaintiff to submit a proposed amended complaint, she should be warned that any amended pleading must be a complete and separate pleading. Plaintiff must state all her claims in the new pleading and may not incorporate by reference any part of her original complaint. WHEREFORE, based on the findings above, it is ORDERED, that Plaintiff’s motion to proceed IFP (Dkt. No. 2) is DENIED WITHOUT PREJUDICE, and it is further RECOMMENDED, that the complaint be dismissed in its entirety, WITHOUT PREJUDICE and with leave to amend, and it is further ORDERED, that while Plaintiff may file objections to this Order and Report-Recommendation, before Plaintiff submits any amended pleading, she should wait for the District Court to rule on the above Orders and Recommendations, and it is further ORDERED, that the Clerk of the Court serve a copy of this Order and Report-Recommendation along with a long-form in forma pauperis application form on Plaintiff by regular mail.” Under 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have 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 14 DAYS WILL PRECLUDE APPELLATE REVIEW.’

Dated: May 28, 2025

Hon. Mitchell J. Katz U.S. Magistrate Judge

? The Clerk shall also provide Plaintiff with copies of all unreported decisions cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam). 3 See Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(e),

2016 WL 6267968 proceeding in forma pauperis where, absent a Only the Westlaw citation is currently available. showing of “imminent danger of serious physical United States District Court, N.D. New York. injury,” a prisoner has filed three or more actions or appeals that were subsequently dismissed as Eddie HOUSTON, Plaintiff, frivolous, malicious, or failing to state a claim v. upon which relief may be granted. See 28 COLLERMAN, et. al., Defendants. U.S.C. § 1915(g). Based upon the Court's review of plaintiff's litigation history on the Federal 9:16-CV-1009 (BKS/ATB) Judiciary's Public Access to Court Electronic | Records (“PACER”) Service, it does not appear that Signed 10/26/2016 plaintiff has accumulated three strikes for purposes of 28 U.S.C. § 1915(g). Attorneys and Law Firms EDDIE HOUSTON, 08-A-3122, Mid-State Correctional III.Initial Screening Facility, P.O. Box 2500, Marcy, New York 13403, Plaintiff, Having found that plaintiff meets the financial criteria for pro se. commencing this action in forma pauperis, and because plaintiff seeks relief from an officer or employee of a governmental entity, the Court must consider the sufficiency AMENDED DECISION AND ORDER1 of the allegations set forth in the complaint in light of 28 U.S.C. §§ 1915(e) and 1915A. Section 1915(e) of Title 28 of 1 On October 20, 2016, the Court issued a Decision the United States Code directs that, when a plaintiff seeks to proceed in forma pauperis, “the court shall dismiss the case at and Order upon initial review of plaintiff's any time if the court determines that – ... (B) the action ... (i) complaint. Dkt. No. 4. This Amended Decision is frivolous or malicious; (ii) fails to state a claim on which and Order is issued to correct clerical errors in the relief may be granted; or (iii) seeks monetary relief against Conclusion of the Order. a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).3 BRENDA K. SANNES, United States District Judge I.Introduction 3 To determine whether an action is frivolous, a court *1 The Clerk has sent to the Court for review a civil rights must look to see whether the complaint “lacks an action filed by pro se plaintiff Eddie Houston. Dkt. No. 1 arguable basis either in law or in fact.” Neitzke v. (“Compl.”). Plaintiff has not paid the statutory filing fee for Williams, 490 U.S. 319, 325 (1989). this action and seeks leave to proceed in forma pauperis. Dkt. Similarly, under 28 U.S.C. § 1915A, a court must review No. 2 (“IFP Application”). any “complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a II.IFP Application governmental entity” and must “identify cognizable claims or “28 U.S.C. § 1915 permits an indigent litigant to commence dismiss the complaint, or any portion of the complaint, if the an action in a federal court without prepayment of the filing complaint ... is frivolous, malicious, or fails to state a claim fee that would ordinarily be charged.” Cash v. Bernstein, No. upon which relief may be granted; or ... seeks monetary relief 09-CV-1922, 2010 W L 5185047, at *1 (S.D.N.Y. Oct. 26, from a defendant who is immune from such relief.” 28 U.S.C. 2010). Upon review of plaintiff's IFP Application, the Court § 1915A(b); see also Carr v. Dvorin, 171 F.3d 115, 116 (2d finds that plaintiff has demonstrated sufficient economic Cir. 1999) (per curiam) (noting that Section 1915A applies to need and filed the inmate authorization form required in the all actions brought by prisoners against government officials Northern District of New York. Plaintiff's IFP application even when plaintiff paid the filing fee). (Dkt. No. 2) is granted.2 *2 Additionally, when reviewing a complaint, the Court may which sets forth a claim for relief shall contain, inter alia, “a Fed. Home Loan Mortgage Corp., 885 F. Supp. 537, 573 short and plain statement of the claim showing that the pleader (S.D.N.Y. 1995) (citing Wilder v. Virginia Hosp. Ass'n, 496 is entitled to relief.” See Fed. R. Civ. P. 8(a)(2). The purpose of U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983)) (footnote Rule 8 “is to give fair notice of the claim being asserted so as omitted); see also Myers v. Wollowitz, No. 6:95-CV-0272 to permit the adverse party the opportunity to file a responsive (TJM/RWS), 1995 WL 236245, at *2 (N.D.N.Y. Apr. 10, answer, prepare an adequate defense and determine whether 1995) (stating that “§ 1983 is the vehicle by which individuals the doctrine of res judicata is applicable.” Hudson v. Artuz, may seek redress for alleged violations of their constitutional No. 95 CIV. 4768, 1998 WL 832708, at *1 (S.D.N.Y. Nov. rights.” (citation omitted)). “Section 1983 itself creates no 30, 1998) (quoting Powell v. Marine Midland Bank, No. 95- substantive rights, [but] ... only a procedure for redress for the CV-0063 (TJM), 162 F.R.D. 15, 16 (N.D.N.Y. June 23, 1995) deprivation of rights established elsewhere.” Sykes v. James, (other citations omitted)). 13 F.3d 515, 519 (2d Cir. 1993) (citation omitted). The Court will construe the allegations in plaintiff's complaint with the A court should not dismiss a complaint if the plaintiff utmost leniency. See, e.g., Haines v. Kerner, 404 U.S. 519, has stated “enough facts to state a claim to relief that is 521 (1972) (holding that a pro se litigant's complaint is to be plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. held “to less stringent standards than formal pleadings drafted 544, 570 (2007). “A claim has facial plausibility when the by lawyers.”). plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the *3 Plaintiff, an inmate currently being held at Mid- misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 State Correctional Facility (“Mid-State C.F.”), asserts claims (2009). While the court should construe the factual allegations arising out of his confinement in the custody of the New York in the light most favorable to the plaintiff, “the tenet that State Department of Corrections and Community Supervision a court must accept as true all of the allegations contained (“DOCCS”). The incidents that form the foundation for in a complaint is inapplicable to legal conclusions.” Id. this complaint occurred while plaintiff was confined at “Threadbare recitals of the elements of a cause of action, Elmira Correctional Facility (“Elmira C.F.”). See Compl., supported by mere conclusory statements, do not suffice.” generally. On July 13, 2013, plaintiff filed a grievance Id. (citing Twombly, 550 U.S. at 555). Rule 8 “demands claiming that defendants Officer Copestick (“Copestick”) and more than an unadorned, the-defendant-unlawfully-harmed- Officer Schieber (“Schieber”) harassed him, on more than me accusation.” Id. Thus, a pleading that contains only one occasion, about his medication. See id. at 6; see Dkt. allegations which “are so vague as to fail to give the No. 1-1 at 3-5. On August 5, 2013, after an investigation defendants adequate notice of the claims against them” is into the allegations, the Superintendent of Elmira C.F. denied subject to dismissal. Sheehy v. Brown, 335 Fed.Appx. 102, plaintiff's grievance. See Dkt. No. 1-1 at 5. 104 (2d Cir. 2009). On September 30, 2013, plaintiff was on his way to the masjid to participate in Ramadan when he was stopped by IV.Summary of the Complaint4 Copestick and Schieber and directed to the wall for a pat- 4 Plaintiff annexed exhibits to the complaint. Dkt. frisk. See Compl. at 5. While plaintiff's hands were on the No. 1-1. To the extent that the exhibits are relevant wall, Schieber “violently kicked” his legs from underneath to the incidents described in the complaint, the him. See id. Schieber “stomped” on plaintiff's ankles while Court will consider the complaint as well as any Copestick attempted to choke plaintiff. See id. During the documents attached as exhibits. See Cortec Indus., assault, the officers yelled racial slurs. See id. Defendant Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir. Sergeant Collerman (“Collerman”) watched the officers beat 1991) (the complaint is deemed to include any plaintiff. See Compl. at 5. As a result of the attack, plaintiff's written instrument attached to it as an exhibit or eyeglasses were broken, his ankle was swollen, and he could any statements or documents incorporated in it by not walk. See id. at 5, 9. reference). At approximately 5:00 p.m., plaintiff received medical Plaintiff brings this action pursuant to 42 U.S.C. § 1983, treatment for complaints of pain in his right big toe and which establishes a cause of action for “ ‘the deprivation swelling in his right foot. See Dkt. No. 1-1 at 19. Plaintiff requests, if needed. See id. A “use of force/inmate injury” of the Eighth Amendment (Sixth, Seventh, and Fifteenth report was compiled.5 See id. At approximately 7:15 p.m., Causes of Action); (4) Copestick and Schieber retaliated plaintiff, a diabetic, told a medical provider that he had not against plaintiff in violation of plaintiff's First Amendment received his daily “medication.” See id. The provider ordered rights (Twenty-First Cause of Action); (5) plaintiff's First various medications to be delivered to plaintiff on a daily Amendment rights to religious freedom were violated (Fourth basis. See id. Cause of Action); (6) plaintiff's Fourteenth Amendment rights to due process and equal protection were violated 5 The Use of Force report was not annexed as an (First, Second, Third, Sixth, Sixteenth, and Eighteenth Causes of Action); (7) defendants failed to investigate exhibit to the complaint. plaintiff's complaints and follow grievance procedures (Tenth On October 1, 2013, plaintiff received a misbehavior report and Thirteenth Causes of Action); (8) perjury claims charging him with assault on staff and with refusing a direct against officers who filed the misbehavior report (Eleventh order and search.6 See Compl. at 5. On the same day, plaintiff and Seventeenth Causes of Action); and (9) supervisory was placed in confinement in the Special Housing Unit claims against DOCCS (Eighth, Ninth, Twelfth, Fourteenth, (“SHU”). See Dkt. No. 1-1 at 19. On October 3, 2013, plaintiff Nineteenth, Twenty-Third, Twenty-Fourth, Twenty-Fifth, and attended a Hearing regarding the misbehavior report.7 See Twenty Sixth Causes of Action). See Compl., generally. Plaintiff seeks compensatory damages, injunctive relief, Dkt. No. 1-1 at 10. On November 3, 2013, plaintiff received and criminal charges against defendants (Eleventh and a copy of the hearing disposition dismissing all charges. See Seventeenth Causes of Action). See Compl. at 9-13. Dkt. No. 1-1 at 11; Dkt. No. 1 at 5. 6 The name of the officer who served the V. Analysis misbehavior report is not clearly legible on the Hearing Disposition annexed as an exhibit. See A. Eleventh Amendment Dkt. No. 1-1 at 10. Plaintiff does not allege *4 The Eleventh Amendment has long been construed as that Copestick, Schieber, or Collerman delivered barring a citizen from bringing a suit against his or her own the report. The disposition form indicates that state in federal court, under the fundamental principle of the charges were reported by Schieber. Id. The “sovereign immunity.” U.S. Const. amend. XI (“The Judicial misbehavior report was not annexed as an exhibit power of the United States shall not be construed to extend to the complaint. to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, 7 The officer who presided over the hearing was a or by Citizens or Subjects of any Foreign State.”); Hans Captain at Elmira C.F. However, the name of the v. Louisiana, 134 U.S. 1, 10-21 (1890); Idaho v. Coeur hearing officer is not clearly legible. See Dkt. No. d'Alene Tribe of Idaho, 521 U.S. 261, 267 (1997); Pennhurst 1-1 at 10-11. State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984). Eleventh Amendment immunity is lost only if Congress On November 3, 2013, plaintiff was released from the SHU. unequivocally abrogates states' immunity or a state expressly See Compl. at 5. While plaintiff was in the SHU, he was consents to suit. Gollomp v. Spitzer, 568 F.3d 355, 365-66 (2d unable to participate in Ramadan, denied religious meals, Cir. 2009). It is well-settled that Congress did not abrogate denied parole, and excluded from mental health programs. states' immunity through 42 U.S.C. § 1983, see Quern v. See id. Jordan, 440 U.S. 332, 343-45 (1979), and that New York State has not waived its immunity from suit on the claims asserted Construed liberally, the complaint contains the following in plaintiff's complaint. See generally Trotman v. Palisades claims: (1) Copestick and Schieber violated plaintiff's Interstate Park Comm'n, 557 F.2d 35, 38-40 (2d Cir. 1977); Eighth Amendment rights with use of excessive force Dawkins v. State of New York, No. 93-CV-1298 (RSP/GJD), (Fifth, Fifteenth, Twentieth, and Twenty-Second Causes of 1996 W L 156764 at *2 (N.D.N.Y. 1996). Action); (2) Collerman failed to protect plaintiff from the assault in violation of plaintiff's Eighth Amendment rights Here, insofar as plaintiff seeks an award of money damages (Fifteenth Cause of Action); (3) defendants were deliberately from suit under section 1983. See LeGrand v. Evan, 702 dismiss or for summary judgment. F.2d 415, 417 (2d Cir. 1983); see Meehan v. Kenville, 555 Fed.Appx. 116 (2d Cir. 2014); see Simmons v. Gowanda Corr. Facility, No. 13-CV-0647, 2013 WL 3340646, at *1 2. Failure To Intervene (W.D.N.Y. July 1, 2013) (“the New York State Department of Corrections and [the named correctional facility] enjoy the *5 The failure of corrections officers to employ reasonable same Eleventh Amendment immunity from suit in federal measures to protect an inmate from violence by others may court as enjoyed by the state itself”) (quoting Posr. v. Court rise to the level of an Eighth Amendment violation. See Ayers Officer Shield No. 207, 180 F.3d 409, 411 (2d Cir. 1999)). v. Coughlin, 780 F.2d 205, 209 (2d Cir. 1985). Moreover, allegations that an officer failed to intervene and prevent assaults are sufficient to state an Eighth Amendment failure B. Eighth Amendment to protect claim. See Rogers v. Artus, No. 13-CV-21, 2013 WL 5175570, at *3 (W.D.N.Y. Sept. 11, 2013). To establish 1. Excessive Force Claims liability under a failure to intervene theory, a plaintiff must prove the use of excessive force by someone other than the The Eighth Amendment protects prisoners from “cruel and individual and that the defendant under consideration: 1) unusual punishment” at the hands of prison officials. Wilson possessed actual knowledge of the use by another of excessive v. Seiter, 501 U.S. 294, 296-97 (1991); Estelle v. Gamble, 429 force; 2) had a realistic opportunity to intervene and prevent U.S. 97, 104 (1976). The Eighth Amendment's prohibition the harm from occurring; and 3) nonetheless disregarded that against cruel and unusual punishment encompasses the use risk by intentionally refusing or failing to take reasonable of excessive force against an inmate, who must prove measures to end the use of excessive force. Curley v. Vill. of two components: (1) subjectively, that the defendant acted Suffern, 268 F.3d 65, 72 (2d Cir. 2001). In order to succeed on wantonly and in bad faith, and (2) objectively, that the a claim of failure to protect, the inmate “must establish both defendant's actions violated “contemporary standards of that a substantial risk to his safety actually existed and that the decency.” Blyden v. Mancusi, 186 F.3d 252, 262-63 (2d offending [defendant] knew of and consciously disregarded Cir. 1999) (internal quotations omitted) (citing Hudson v. that risk.” See Walsh v. Goord, No. 07-CV-0246, 2007 WL McMillian, 503 U.S. 1, 8 (1992)). The key inquiry into a claim 1572146, at *9 (W.D.N.Y. May 23, 2007) (quoting Farmer of excessive force is “whether force was applied in a good- v. Brennan, 511 U.S. 825, 837 (1970)). In addition, a failure- faith effort to maintain or restore discipline, or maliciously to-protect claim requires a showing that prison officials acted and sadistically to cause harm.” Hudson, 503 U.S. at 7 (citing with “deliberate indifference” to the inmate's safety. Morales Whitley v. Albers, 475 U.S. 312, 321-22 (1986)); see also v. New York State Dep't of Corr., 842 F.2d 27, 30 (2d Cir. Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973); see also 1988). Wilkins v. Gaddy, 559 U.S. 34, 37 (2010) (per curiam) (“[t]he Supreme Court has emphasized that the nature of the force At this early stage of the proceeding, plaintiff has alleged applied is the core judicial inquiry in excessive force cases enough to require a response from Collerman to plaintiff's —not whether a certain quantum of injury was sustained.”). claim that he failed to protect plaintiff from the assault by “Accordingly, when considering the subjective element of the Copestick and Schieber. In so ruling, the Court expresses no governing Eighth Amendment test, a court must be mindful opinion as to whether these claims can withstand a properly that the absence of serious injury, though relevant, does not filed motion to dismiss or for summary judgment. necessarily negate a finding of wantonness.” Wynter v. Ramey, No. 11-CV-0257 (DNH/DEP), 2013 W L 5465343, at *5 (N.D.N.Y. Sept. 30, 2013) (citations omitted). 3. Deliberate Indifference to Serious Medical Needs Plaintiff has identified the time, location and individuals To state an Eighth Amendment claim for medical involved in the alleged assault. Thus, the Court finds that indifference, a plaintiff must allege that the defendant plaintiff's Eighth Amendment excessive force claims against was deliberately indifferent to a serious medical need. See Copestick and Schieber survive sua sponte review and require Farmer v. Brennan, 511 U.S. 825, 834 (1994). The objective a response. In so ruling, the Court expresses no opinion as to be sufficiently serious, in the sense that a condition of (2d Cir. 1999) (internal citations omitted). urgency, one that may produce death, degeneration, or extreme pain exists.” Hill v. Curcione, 657 F.3d 116, 122 *6 Here, the complaint is void of any facts establishing (2d Cir. 2011) (quoting Hathaway v. Coughlin, 99 F.3d that any defendant deliberately delayed plaintiff's medical 550, 553 (2d Cir. 1996)) (internal quotation marks omitted). treatment. On the day of the alleged attack, plaintiff received Under the subjective element, medical mistreatment rises to medical attention and prescription medication. See Dkt. No. the level of deliberate indifference only when it “involves 1-1 at 19. Plaintiff was treated on three other occasions culpable recklessness, i.e., an act or a failure to act ... that in October 2013 for foot pain before undergoing x-rays evinces ‘a conscious disregard of a substantial risk of serious on November 14, 2013. Dkt. No. 1-1 at 20-21. During harm.’ ” Chance v. Armstrong, 143 F. 3d 698, 703 (2d those visits, plaintiff received ice packs, Motrin, and refused Cir. 1998) (quoting Hathaway, 99 F.3d at 553). “Deliberate Ibuprofen. See id. Plaintiff does not allege that his condition indifference requires more than negligence but less than deteriorated during that time. See Rodriguez v. City of New conduct undertaken for the very purpose of causing harm.” York, 802 F.Supp. 477, 482 (S.D.N.Y. 2011) (finding that the Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994). To plaintiff did not establish that his condition worsened as a assert a claim for deliberate indifference, an inmate must result of a delay between his request and receipt of medical allege that (1) a prison medical care provider was aware attention). Plaintiff does not allege that he sought and was of facts from which the inference could be drawn that the refused medical treatment during this two month time period. inmate had a serious medical need; and (2) the medical See Kee v. Hasty, No. 01 Civ. 2123, 2004 W L 807071, at care provider actually drew that inference. Farmer, 511 U.S. *29 (S.D.N.Y. April 14, 2004) (holding that the plaintiff's at 837; Chance, 143 F.3d at 702. The inmate must also Eighth Amendment claims were overly conclusory because demonstrate that the provider consciously and intentionally the inmate failed to specify the dates on which he was denied disregarded or ignored that serious medical need. Farmer, proper treatment, the nature of his needs on those dates, and 511 U.S. at 835. An “inadvertent failure to provide adequate the nature of the treatment that was purportedly denied by medical care” does not constitute “deliberate indifference.” the defendants). The complaint lacks any facts to plausibly Estelle, 429 U.S. at 105-06. suggest that any defendant knew of the severity of plaintiff's injury and the risk posed by any delay in his treatment. In this instance, even assuming plaintiff's injuries were sufficiently serious, plaintiff must allege facts to demonstrate Plaintiff, a diabetic, also claims that he was unable to read that defendants acted with a sufficiently culpable state of or see for over one year because his eye glasses were not mind. See Hathaway, 99 F.3d at 553. Plaintiff claims that replaced until over a year after the assault. See Compl. at his medical treatment was inadequate because his ankle was 10. The complaint does not contain any facts suggesting that not x-rayed until he was transferred to “his next facility,” plaintiff made any complaints or sick call requests to any two months after the alleged incident. See Compl. at 10. defendant related to his eyeglasses. Plaintiff also failed to “When the basis of a prisoner's Eighth Amendment claim assert facts suggesting that he made any defendant “aware is a temporary delay or interruption in the provision of of the serious harm could occur” if he was not provided otherwise adequate medical treatment, it is appropriate to with his glasses. See Myrie v. Calvo/Calvoba, 591 F.Supp.2d focus on the challenged delay or interruption in treatment 620, 628 (S.D.N.Y. 2008) (holding that the complaint did not rather than the prisoner's underlying medical condition alone suggest that any defendant was deliberately indifferent to the in analyzing whether the alleged deprivation is, in ‘objective plaintiff's vision problems). terms, sufficiently serious,’ to support an Eighth Amendment claim.” Smith v. Carpenter, 316 F.3d 178, 185 (2d Cir. Plaintiff's Eighth Amendment allegations are also subject 2003) (citing Chance, 143 F.3d at 702). “Although a delay to dismissal based upon the failure to plead personal in providing necessary medical care may in some cases involvement on the part of any defendant. It is well settled constitute deliberate indifference, this Court has reserved in this Circuit that “personal involvement of defendants in such a classification for cases in which, for example, officials alleged constitutional deprivations is a prerequisite to an deliberately delayed care as a form of punishment, ignored award of damages under § 1983.” Wright v. Smith, 21 F.3d a ‘life-threatening and fast-degenerating’ condition for three 496, 501 (2d Cir. 1994) (quoting Moffitt v. Town of Brookfield, days; or delayed major surgery for over two years.” Demata 950 F.2d 880, 885 (2d Cir. 1991)). Thus, “a Section 1983 of the defendant and the injuries suffered.’ ” Austin v. Pappas, protected conduct. Johnson v. Eggersdorf, 8 Fed.Appx. 140, No. 04-CV-7263, 2008 W L 857528, at *2 (S.D.N.Y. Mar. 144 (2d Cir. 2001); Graham v. R.J. Henderson, 89 F.3d 31, 2008) (quoting Bass v. Jackson, 790 F.2d 260, 263 (2d 75, 80 (2d Cir. 1996). A plaintiff can establish a causal Cir. 1986)) (other citation omitted). The complaint lacks any connection that suggests retaliatory intent by showing that facts suggesting that Copestick, Schieber, or Collerman were his protected activity was close in time to the complained- involved in plaintiff's medical treatment or refused to allow of adverse action. Espinal v. Goord, 558 F.3d 119, 129 (2d plaintiff to receive medical attention. In the absence of factual Cir. 2001) (citations omitted). While there is no “bright line” allegations sufficient to plausibly suggest that any defendant defining the limits of the temporal relationship, courts in the was personally involved, the complaint fails to state a Circuit have held that an adverse action taken within three cognizable claim against him. Consequently, plaintiff's Eighth months after a protected activity can reasonably be perceived Amendment claims for deliberate indifference to plaintiff's as retaliatory. See Gorman-Bakos v. Cornell Coop. Extn. of medical needs are dismissed without prejudice pursuant to 28 Schenectady Cty., 252 F.3d 545, 554 (2d Cir. 2001); see also U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b) for failure Ashok v. Barnhart, No. 01-CV-1311, 289 F.Supp.2d 305, 314 to state a claim. (E.D.N.Y. Oct. 30, 2003) (the interval between a protected activity and an adverse action that results in a finding of retaliation is generally no more than several months). C. First Amendment At this juncture, the Court finds that plaintiff's retaliation 1. Retaliation claims against Copestick and Schieber survive sua sponte review and require a response. In so ruling, the Court Plaintiff alleges that Copestick and Schieber assaulted him in expresses no opinion as to whether these claims can withstand retaliation for plaintiff's grievance against them. See Compl. a properly filed motion to dismiss or for summary judgment. at 6,13. To state a claim of retaliation under the First Amendment, a plaintiff must allege facts plausibly suggesting the following: (1) the speech or conduct at issue was 2. Religious Claims “protected;” (2) the defendants took “adverse action” against the plaintiff – namely, action that would deter a similarly Plaintiff alleges that the defendants violated his religious situated individual of ordinary firmness from exercising his rights because he was unable to participate in Ramadan and or her constitutional rights; and (3) there was a causal denied his religious meals as a direct result of the false connection between the protected speech and the adverse misbehavior report. Dkt. No. 1 at 5-6. action – in other words, that the protected conduct was a “substantial or motivating factor” in the defendant’s decision Prisoners have long been understood to retain some measure to take action against the plaintiff. Mount Healthy City Sch. of the constitutional protection afforded by the First Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977); Amendment's Free Exercise Clause. See Ford v. McGinnis, Gill v. Pidlypchak, 389 F.3d 379, 380 (2d Cir. 2004) (citing 352 F.3d 582, 588 (2d Cir. 2003) (citing Pell v. Procunier, 417 Dawes v. Walker, 239 F.3d 489, 492 (2d Cir. 2001)). The U.S. 817, 822 (1974)). “Balanced against the constitutional Second Circuit has stated that courts must approach prisoner protections afforded prison inmates, including the right to retaliation claims “with skepticism and particular care,” since free exercise of religion, [however,] are the interests of “virtually any adverse action taken against a prisoner by prison officials charged with complex duties arising from a prison official – even those otherwise not rising to the administration of the penal system.” Id. (citing Benjamin level of a constitutional violation – can be characterized as a v. Coughlin, 905 F.2d 571, 574 (2d Cir. 1990)). To state constitutionally proscribed retaliatory act.” Dawes, 239 F.3d a First Amendment Free Exercise claim, a plaintiff must at 491, overruled on other grounds by Swierkiewicz v. Sorema allege that (1) the practice asserted is religious in the person's N.A., 534 U.S. 506 (2002) (citing Flaherty v. Coughlin, 713 scheme of beliefs, and that the belief is sincerely held; F.2d 10, 13 (2d Cir. 1983)); Franco v. Kelly, 854 F.2d 584, (2) the challenged practice of the prison officials infringes 590 (2d Cir. 1988). upon the religious belief; and (3) the challenged practice of the prison officials furthers some legitimate penological objective. Farid v. Smith, 850 F.2d 917, 926 (2d Cir. threshold that the disputed conduct substantially burdens his (2d Cir. 2015), here there is no such allegation. While the sincerely held religious beliefs.” Salahuddin v. Goord, 467 deprivation of religious meals in SHU may be sufficient to F.3d 263, 274–75 (2d Cir. 2006) (citing Ford, 352 F.3d state a claim, see Williams v. Does, 639 Fed.Appx. 55, 56 at 591).8 A religious belief is “sincerely held” when the (2d Cir. 2016); Skates v. Shusda, No. 9:14-CV-1092 (TJM/ plaintiff subjectively, sincerely holds a particular belief that DEP), 2016 WL 3882530, at **4-5 (N.D.N.Y. May 31, is religious in nature. Ford, 352 F.3d at 590. A prisoner's 2016), here there is no indication that the defendants had sincerely held religious belief is “substantially burdened” any personal involvement in that conduct. The allegations, where “the state puts substantial pressure on an adherent without more, fail to plausibly suggest that any defendant to modify his behavior and to violate his beliefs.” Jolly burdened plaintiff's right to freely practice his religion. Thus, v. Coughlin, 76 F.3d 468, 476–77 (2d Cir. 1996). Once plaintiff's First Amendment claims against are dismissed a plaintiff establishes that a sincerely held religious belief without prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B) and has been substantially burdened, “[t]he defendants then bear 28 U.S.C. § 1915A(b) for failure to state a claim upon which the relatively limited burden of identifying the legitimate relief may be granted. penological interests that justify the impinging conduct; the burden remains with the prisoner to show that these D. Fourteenth Amendment articulated concerns were irrational.” Salahuddin, 467 F.3d at 275 (quoting Ford, 352 F.3d at 595) (punctuation omitted). 1. Equal Protection/Discrimination 8 The Second Circuit has yet to decide whether the Plaintiff claims that the September 30, 2013 assault was “substantial burden” test survived the Supreme racially motivated. See Compl. at 6, 12. “When verbal Court's decision in Emp't Div. v. Smith, 494 U.S harassment and simultaneous physical abuse ... are considered 872, 887 (1990), in which the Court suggested together, [courts] have little doubt concluding that plaintiff's that application of the test “puts courts in ‘the allegations [are] sufficient to state a § 1983 claim for unacceptable business of evaluating the relative discrimination on the basis of race. Cole v. Fischer, 379 merits of differing religious claims.’ ” Ford, 352 Fed.Appx. 40, 43 (2d Cir. 2010). “Under the Fourteenth F.3d at 592 (quoting Emp't Div., 494 U.S. at Amendment's Equal Protection clause, a plaintiff may be able 887); see also Williams v. Does, 639 Fed.Appx. to recover for a physical assault that would not meet the 55, 56 (2d Cir. May 6, 2016) (“We have not yet objective threshold for Eighth Amendment excessive force decided whether a prisoner asserting a free-exercise claims, if the defendant's conduct was motivated by racial claim must, as a threshold requirement, show or religious discrimination.” Bhuiyan v. Wright, No. 9:06- that the disputed conduct substantially burdened CV-409 ATB, 2011 WL 1870235, at *9 (N.D.N.Y. May 13, his sincerely held religious beliefs.”); Holland 2011) (citation omitted). v. Goord, 758 F.3d 215, 220-21 (2d Cir. 2014) (declining to decide whether a prisoner must show, At this juncture, plaintiff has sufficiently plead a Fourteenth as a threshold matter, that the defendants' conduct Amendment equal protection claim to warrant a response substantially burdened his sincerely held religious from Copestick and Schieber. In so ruling, the Court expresses beliefs in connection with a First Amendment free no opinion as to whether these claims can withstand a exercise claim). In the absence of any controlling properly filed motion to dismiss or for summary judgment. precedent to the contrary, I have applied the substantial-burden test in this matter. *8 In this case, plaintiff has not alleged who issued the 2. Due Process misbehavior report and it is not attached to the complaint. An inmate “has no general constitutional right to be free Plaintiff claims that defendants violated his due process from being falsely accused in a misbehavior report.” Boddie rights when they failed to replace plaintiff's eyeglasses. v. Schneider, 105 F.3d 857, 862 (2d Cir. 1997). While a See Compl. at 10. Plaintiff also asserts that his Fourteenth false misbehavior report may give rise to a claim under Amendment rights were violated because he was improperly § 1983 “when done in retaliation for the exercise of a confined to the SHU without a hearing as a result of a confinement, was allegedly unable to participate in Ramadan, claims that he served “over 60 days in SHU.” See denied his religious meals, denied parole, and excluded from id. at 9. mental health programs. See id. A prisoner “has a liberty interest that is implicated by SHU confinement if it ‘imposes [an] atypical and significant hardship on the inmate in relation to the ordinary incidents a. Property Claim of prison life.’ ” J.S. v. T'Kach, 714 F.3d 99, 106 (2d Cir. 2013) (quoting Sandin v. Conner, 515 U.S. 472, 484, The Supreme Court has held that the negligent or intentional (1995)); see also Palmer v. Richards, 364 F.3d 60, 64 deprivation of prisoner's property may not be the basis for (2d Cir. 2004). In making this determination courts are to constitutional claims if sufficient post deprivation remedies consider, “among other things, the duration and conditions are available to address the claim. Hudson v. Palmer, 468 U.S. of confinement.” J.S., 714 F.3d at 106; Davis v. Barrett, 576 517, 531 (1984) (citing Parratt v. Taylor, 451 U.S. 527, 541 F.3d 129, 133 (2d Cir. 2009). The conditions of confinement (1981)); Davis v. New York, 311 Fed.Appx. 397, 400 (2d Cir. are to be considered “in comparison to the hardships endured 2009) (An alleged loss of property, “whether intentional or by prisoners in general population, as well as prisoners in negligent – will not support a due process claim redressable administrative and protective confinement, assuming such under § 1983 if ‘adequate state post-deprivation remedies confinements are imposed in the ordinary course of prison are available.’ ”) (quoting Hudson, 468 U.S. 533). “New administration.” Davis, 576 F.3d at 134; Palmer, 364 F.3d at York in fact affords an adequate post-deprivation remedy in 66 n.4. the form of, inter alia, a Court of Claims action.” Jackson v. Burke, 256 F.3d 93, 96 (2d Cir. 2001). Because plaintiff Although the Second Circuit has “explicitly avoided” creating has access to adequate state law remedies, he has not been “a bright line rule that a certain period of SHU confinement deprived of property without due process of law and therefore automatically fails to implicate due process rights,” the Court cannot state a claim for relief pursuant to Section 1983. See has established guidelines. Palmer, 364 F.3d at 65. W here the Love v. Coughlin, 714 F.2d 207, 208-09 (2d Cir. 1983) (per plaintiff is confined for “an intermediate duration –between curiam); see also Aziz Zarif Shabazz v. Pico, 994 F.Supp. 360, 101 and 305 days – ‘development of a detailed record’ of 473-74 (S.D.N.Y. 1998) (dismissing the plaintiff's claim that the conditions of the confinement relative to ordinary prison defendants destroyed his eyeglasses in violation of his due conditions is required.’ ” Id. (quoting Colon v. Howard, process rights). Thus, plaintiff's due process claims related to 215 F.3d 227, 234 (2d Cir. 2000)). While confinements for his eyeglasses are dismissed pursuant to 28 U.S.C. § 1915(e) less than 101 days “under normal SHU conditions may not (2)(B) and 28 U.S.C. § 1915A(b) for failure to state a claim implicate a prisoner's liberty interest,” such confinements upon which relief may be granted. “could constitute atypical and significant hardships if the conditions were more severe than the normal SHU conditions of Sealy or a more fully developed record showed that even b. SHU Confinement relatively brief confinements under normal SHU conditions were, in fact, atypical.” Palmer, 364 F.3d at 65; see Davis, *9 To establish a due process claim, plaintiff must establish: 576 F.3d at 133.10 “(1) that he possessed a liberty interest and (2) that the defendant(s) deprived him of that interest as a result of 10 The Second Circuit has noted that “[i]n the absence insufficient process.” Giano v. Selsky, 238 F.3d 223, 225 (2d of a detailed factual record, we have affirmed Cir. 2001) (citation and internal quotation marks omitted). dismissal of due process claims only in cases where In this case plaintiff alleges that the false misbehavior report the period of time spent in SHU was exceedingly resulted in a SHU sentence.9 short –less than the 30 days that the Sandin plaintiff spent in SHU—and there was no indication that 9 The complaint contains conflicting factual the plaintiff endured unusual SHU conditions.” allegations related to the length of plaintiff's SHU Palmer, 364 F.3d at 65-66; see Davis, 576 F.3d confinement. Plaintiff claims that after “one month at 133. Absent allegations in the complaint that of being housed in SHU,” he was released. See the conditions of confinement were in some way granted motions to dismiss claims by plaintiffs July 13, 2006) (holding the inability to attend Muslim services with confinement exceeding thirty days when the and celebrate the end of Ramadan while confined in the SHU plaintiffs failed to allege that the conditions of for seventy-seven days is not an atypical hardship). confinement were in some way atypical. See, e.g., Acevedo v. Fischer, No. 12-CV-6866, 2014 WL Even assuming that plaintiff had pled facts sufficient to show 5015470 at *15 (S.D.N.Y. Sept. 29, 2014) (citing that his confinement imposed an atypical and significant cases involving confinements of between forty and hardship, however, and therefore pled the existence of a valid fifty days which were dismissed for failure to allege liberty interest, the complaint fails to state a claim based upon a protected liberty interest because there were no the Fourteenth Amendment and due process. It is well settled allegations of unusual confinement). that “a prison inmate has no general constitutional right to be free from being falsely accused in a misbehavior report.” *10 In this case, the duration of the confinement, 30 to 60 days, “was not long enough to constitute an atypical and Boddie v. Schnieder, 105 F.3d 857, 862 (2d Cir. 1997) (citing significant deprivation by itself,” and the Court therefore must Freeman v. Rideout, 808 F.2d 949, 951 (2d Cir. 1986)). In “look to the conditions of confinement.” Palmer, 364 F.3d at this case, a hearing regarding the charges was held within two days of plaintiff's receipt of the misbehavior report. Plaintiff 66; see also Davis, 576 F.3d at 133. Plaintiff claims that while does not allege that he was denied any procedural due process he was confined in the SHU, he was unable to participate during that hearing. Moreover, the complaint lacks facts in Ramadan, denied his religious meals, denied parole, and suggesting that any named defendant issued the misbehavior excluded from his mental health program. See Compl. at 5, report or presided over the disciplinary hearings. Based upon 10; Dkt. No. 1-1 at 1. the aforementioned, plaintiff's Fourteenth Amendment claims are dismissed without prejudice pursuant to 28 U.S.C. § It is well established that prisoners do not have a 1915(e)(2)(B) and 28 U.S.C. § 1915A(b) for failure to state constitutional right to parole. Greenholtz v. Inmates of Neb. a claim upon which relief may be granted. See Livingston v. Penal & Corr. Complex, 442 U.S. 1, 7 (1979). “Where a state Kelly, 561 F.Supp.2d 329, 332 (W.D.N.Y. 2008) (dismissing has created a statutory scheme for parole, the Due Process plaintiff's false-report claims because the plaintiff failed to Clause protects prisoners insofar as they ‘have a legitimate allege that the disciplinary hearings on the reports did not expectancy of release that is grounded in the state's statutory meet constitutional due process standards). scheme.’ ” Barna v. Travis, 239 F.3d 169, 170–72 (2d Cir. 2001) (per curiam) (citing Greenholtz, 442 U.S. at 11–13). “New York's parole scheme is not one that creates in any E. Failure to Respond to Grievances and Failure to prisoner a legitimate expectancy of release.” Barna, 239 F.3d Investigate at 171. Plaintiff has also failed to plead that his inability to *11 Plaintiff also claims that his constitutional rights were participate in mental health programs impacted a protected violated because the facility grievance program is “never liberty interest. See Nieves v. Prack, No. 6:15-CV-6101, 2016 followed.” See Compl. at 11. There is no constitutional W L 1165820, at *4 (W.D.N.Y. March 24, 2016) (“[Plaintiff's] right of access to the established inmate grievance program. claim that his inability ... to participate in various educational, Davis v. Buffardi, No. 9:01-CV-0285 (PAM/GJD), 2005 WL vocational, rehabilitative or self-help programs might have 1174088, at *3 (N.D.N.Y. May 4, 2005) (“[p]articipation hindered his ability to receive an early parole or release in an inmate grievance process is not a constitutionally is ... speculative and fails to allege interference with a protected right”); Shell v. Brzezniak, 365 F.Supp.2d 362, protected liberty interest.”) (citations omitted). Here, the 369-70 (W.D.N.Y. 2005) (“[i]nmate grievance programs complaint lacks facts establishing when, how many times, created by state law are not required by the Constitution and and who deprived plaintiff of the right to attend his mental consequently allegations that prison officials violated those health program. With respect to plaintiff's religious claims, procedures does not give rise to a cognizable § 1983 claim”); courts have found that the deprivation of communal religious Cancel v. Goord, No. 00. Civ. 2042, 2001 WL 303713, at *3 services does not constitute an atypical and significant (S.D.N.Y. Mar. 29, 2001) (“inmate grievance procedures are hardship. See Arce v. Walker, 139 F.3d 329, 336 (2d Cir. 1998) not required by the Constitution and therefore a violation of (finding that eighteen days in administrative segregation, such procedures does not give rise to a claim under § 1983”); including loss of exercise and access to religious services, did Mimms v. Carr, No. 09-CV-5740, 2011 W L 2360059, at protected liberty interest.”) (citing cases). Simply stated, there G. Injunctive Relief Against DOCCS is no underlying constitutional obligation to afford an inmate Plaintiff demands injunctive relief directing DOCCS to meaningful access to the internal grievance procedure, or to require “each officer” to wear body cameras to prevent future investigate and properly determine any such grievance. assaults and other related injunctive relief. See Compl. at 10-12. Plaintiff is presently confined at Mid-State C.F. and To the extent that plaintiff attempts to assert a separate therefore, plaintiff's request for injunctive relief involving constitutional claim based upon the Inspector General's changes to the operation of security at Elmira C.F., is failure to investigate, the law is also clear that inmates do dismissed as moot. See Edwards v. Horn, No. 10 Civ. not enjoy a constitutional right to an investigation of any 6194, 2012 WL 760172, at *23 (S.D.N.Y. March 8, 2012) kind by government officials. Bernstein v. New York, 591 (dismissing the plaintiff's claim for injunctive relief because F.Supp.2d 448, 460 (S.D.N.Y. 2008) (collecting cases); Torres the plaintiff had been released from prison). v. Mazzuca, 246 F.Supp.2d 334, 341-42 (S.D.N.Y. 2003) (Prisoners do not have a due process right to a thorough *12 Even assuming plaintiff's request is broader and investigation of grievances.); DeShaney v. Winnebego Soc. intended to encompass all DOCCS facilities, the request is Servs., 489 U.S. 189, 196 (1989) (The Due Process Clause nonetheless improper and subject to dismissal. The PLRA confers no right to governmental aid, even where that aid may provides “[p]rospective relief in any civil action with respect be necessary to secure life, liberty, or property interests of to prison conditions shall extend no further than necessary which the government itself may not deprive the individual); to correct the violation of the Federal right of the particular Pine v. Seally, No. 9:09-CV-1198, 2011 W L 856426, at *9 plaintiff.” 18 U.S.C. § 3626(a)(1)(A). “[A] proposed order (N.D.N.Y. Feb. 4, 2011) (“the law is ... clear that inmates do directing the installation of securities cameras – is beyond the not enjoy a constitutional right to an investigation of any kind narrow scope permitted by the PLRA.” Barrington v. New by government officials”) (citing Bernstein, 591 F.Supp.2d at York, 806 F.Supp.2d 730, 750 (S.D.N.Y. 2011) (dismissing 460). the plaintiff's request for injunctive relief seeking an order directing Green Haven to install security cameras as overly In this regard, plaintiff's claims do not involve a constitutional broad and unnecessary to correct the alleged past violations violation and are dismissed pursuant to 28 U.S.C. § 1915(e) of his rights). Accordingly, plaintiff's request for injunctive (2)(B) and 28 U.S.C. § 1915A(b) for failure to state a claim relief is dismissed. upon which relief may be granted. VI. Conclusion F. Cause of Action for Criminal Charges/Perjury ORDERED that plaintiff's in forma pauperis application “New York does not recognize a common law cause of action (Dkt. No. 2) is GRANTED;11 and it is further for [...] perjury.” Harris v. Summers, No. 5:14-CV-0013 (LEK/DEP), 2014 W L 1340032, at *5 (N.D.N.Y. Apr. 3, 11 Plaintiff should note that, although the Court 2014) (citing Carvel v. Ross, No. 12-CV-0722, 2011 W L has granted his application to proceed in forma 856283, at *12 (S.D.N.Y. Feb. 16, 2011) (dismissing the pauperis, he will still be required to pay fees that plaintiff's perjury claim because “there [is] no private right he may incur in this action, including copying and/ of action” for perjury)). Moreover, plaintiff's claim is not or witness fees. actionable because it is well-settled that a private citizen does not have a constitutional right to bring a criminal ORDERED that the Clerk provide the Superintendent of the complaint against another individual. Harper v. New York facility, designated by plaintiff as his current location, with a Child Welfare Comm'rs, No. 3:12-CV-0646 (NAM/DEP), copy of plaintiff's authorization form, and notify the official 2012 WL 3115975, at *4 (N.D.N.Y. May 14, 2012) (citing that this action has been filed and that plaintiff is required to Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973)). pay the entire statutory filing fee of $350.00 pursuant to 28 Consequently, plaintiff's request to charge defendants with U.S.C. § 1915; and it is further “perjury” is dismissed for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b). ORDERED that the Clerk of the Court provide a copy of plaintiff's inmate authorization form to the Financial Deputy ORDERED that the following claims are DISMISSED with Office of the New York State Attorney General, together with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 a copy of this Decision and Order; and it is further U.S.C. § 1915A(b) for failure to state a claim upon which relief may be granted: (1) plaintiff's § 1983 claims for *13 ORDERED, that a response to the complaint be filed monetary damages against DOCCS; (2) constitutional claims by the remaining defendants, or their counsel, as provided for based upon the failure to adhere to the grievance policy and in the Federal Rules of Civil Procedure; investigate; and (3) plaintiff's claims related to perjury and filing criminal charges against defendants; and it is further ORDERED, that all pleadings, motions and other documents relating to this action must bear the case number assigned to ORDERED that the following claims are DISMISSED this action and be filed with the Clerk of the United States without prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B) and District Court, Northern District of New York, 7th Floor, 28 U.S.C. § 1915A(b) for failure to state a claim upon which Federal Building, 100 S. Clinton St., Syracuse, New York relief may be granted: (1) Eighth Amendment claims against 13261-7367. Any paper sent by a party to the Court or defendants for deliberate indifference to plaintiff's serious the Clerk must be accompanied by a certificate showing medical needs; (2) First Amendment freedom of religion that a true and correct copy of same was served on all claims; (3) Fourteenth Amendment due process claims; and opposing parties or their counsel. Any document received (4) claims for injunctive relief against DOCCS12; and it is by the Clerk or the Court which does not include a proper certificate of service will be stricken from the docket. further Plaintiff must comply with any requests by the Clerk’s Office for any documents that are necessary to maintain this action. 12 If plaintiff wishes to pursue any claim dismissed All parties must comply with Local Rule 7.1 of the Northern without prejudice, he is advised to that, if accepted District of New York in filing motions. Plaintiff is also for filing, any amended complaint will entirely required to promptly notify the Clerk’s Office and all replace the original complaint and incorporation of parties or their counsel, in writing, of any change in his prior claims is not permitted. address; their failure to do so will result in the dismissal ORDERED that DOCCS is DISMISSED as a defendant of his action; and it is further herein; and it is further ORDERED, in accordance with Lebron v. Sanders, 557 F.3d ORDERED that the following claims survive the Court's 76 (2d Cir. 2009), the Clerk of the Court is directed to sua sponte review under 28 U.S.C. § 1915(e)(2)(B) and 28 provide plaintiff with copies of opinions from Westlaw and U.S.C. § 1915A(b) and require a response: (1) the Eighth the Federal Appendix cited in this Decision and Order; and Amendment use of excessive force claims against defendants it is further Copestick and Schieber; (2) the Eighth Amendment failure- to-intervene claim against defendant Collerman; (3) the First ORDERED that the Clerk of the Court shall serve a copy of Amendment retaliation claims against defendants Copestick this Decision and Order on plaintiff in accordance with the and Schieber; and (3) the Fourteenth Amendment equal Local Rules. protection claims against Copestick and Schieber; and it is further Dated: October 26, 2016. ORDERED, that the Clerk shall issue summons and forward All Citations them, along with copies of the Complaint, to the United States Marshal for service upon the remaining defendants. The Clerk Not Reported in Fed. Supp., 2016 WL 6267968 End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works. Title PDF Court Date Type 1. Docket 9:16-CV-01009 — N.D.N.Y. Aug. 15, 2016 Docket Houston v. Collman et al There are no History results for this citation.

2024 WL 4712526 with this action in forma pauperis. See id. Only the Westlaw citation is currently available. United States District Court, N.D. New York. 1 To determine whether an action is frivolous, a court must look to see whether the complaint “lacks an Gerry CARR and Paulette Klein, Plaintiffs, arguable basis either in law or in fact.” Neitzke v. v. Williams, 490 U.S. 319, 325 (1989). Philip J. GERWITZ, et al., Defendants. Likewise, under 28 U.S.C. § 1915A, a court must review 1:24-CV-1069 (AMN/DJS) any “complaint in a civil action in which a prisoner seeks | redress from a governmental entity or officer or employee of Signed September 20, 2024 a governmental entity” and must “identify cognizable claims or dismiss the complaint, or any portion of the complaint, Attorneys and Law Firms if the complaint ... is frivolous, malicious, or fails to state a claim upon which relief may be granted; or ... seeks monetary GERRY CARR, Plaintiff, Pro Se, #18714, Albany County relief from a defendant who is immune from such relief.” 28 Correctional Facility, 840 Albany Shaker Road, Albany, New U.S.C. § 1915A; see also Carr v. Dvorin, 171 F.3d 115, 116 York 12211. (2d Cir. 1999) (per curiam); Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007) (stating that both sections 1915 and 1915A PAULETTE KLEIN, Plaintiff, Pro Se, Albany, New York 12212. are available to evaluate pro se prisoner complaints).2 2 Review of Mr. Carr's claims is warranted under this REPORT-RECOMMENDATION and ORDER section given that he indicates his is presently in custody in Albany County. DANIEL J. STEWART, United States Magistrate Judge In reviewing a pro se complaint, the court has a duty to show *1 Plaintiffs commenced this action alleging a violation of liberality toward pro se litigants, see Nance v. Kelly, 912 F.2d 42 U.S.C. § 1983 against multiple Defendants. Dkt. No. 1, 605, 606 (2d Cir. 1990) (per curiam), and should exercise Compl. The filing fee in this action has not been paid, but “extreme caution ... in ordering sua sponte dismissal of a Plaintiff Carr has filed a motion to proceed in forma pauperis. pro se complaint before the adverse party has been served Dkt. No. 2. The matter has been referred to the undersigned and both parties (but particularly the plaintiff) have had an for an initial review pursuant to L.R. 72.3. opportunity to respond.” Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983) (internal citations omitted). Therefore, a court should not dismiss a complaint if the plaintiff has stated “enough facts to state a claim to relief that is plausible on its I. SUFFICIENCY OF THE COMPLAINT face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads A. Governing Legal Standard factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct 28 U.S.C. § 1915(e) directs that, when a plaintiff seeks to alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing proceed in forma pauperis, “(2) ... the court shall dismiss Bell Atl. Corp. v. Twombly, 550 U.S. at 556). the case at any time if the court determines that – ... (B) the action ... (i) is frivolous or malicious; (ii) fails to state a *2 Although a court should construe the factual allegations claim on which relief may be granted; or (iii) seeks monetary in the light most favorable to the plaintiff, “the tenet that relief against a defendant who is immune from such relief.” 28 a court must accept as true all of the allegations contained U.S.C. § 1915(e)(2)(B).1 Thus, even if a plaintiff meets the in a complaint is inapplicable to legal conclusions.” Id. financial criteria to commence an action in forma pauperis, it “Threadbare recitals of the elements of a cause of action, is the court's responsibility to determine whether the plaintiff supported by mere conclusory statements, do not suffice.” Id. may properly maintain the complaint that he filed in this (citing Bell Atl. Corp. v. Twombly, 550 U.S. at 555). “[W]here alleged - but it has not show[n] - that the pleader is entitled 1995)). A complaint that fails to comply with basic pleading to relief.” Id. at 679 (quoting FED. R. CIV. P. 8(a)(2)). requirements presents too heavy a burden for defendants to Rule 8 of the Federal Rules of Civil Procedure “demands craft a defense “and provides no meaningful basis for the more than an unadorned, the-defendant-unlawfully-harmed- Court to assess the sufficiency of [the plaintiff's] claims,” and me accusation.” Ashcroft v. Iqbal, 556 U.S. at 678 (citing Bell may properly be dismissed. Gonzales v. Wing, 167 F.R.D. 352, Atl. Corp. v. Twombly, 550 U.S. at 555). Thus, a pleading 355 (N.D.N.Y. 1996). that only “tenders naked assertions devoid of further factual enhancement” will not suffice. Id. (internal quotation marks Under this standard, the Court recommends that the and alterations omitted). Complaint be dismissed, but with leave to amend. The precise nature of Plaintiffs’ claims here is unclear. To the extent that Plaintiffs allege that the Defendant police officers failed to properly file or investigate the complaint filed by them, the B. Summary of the Complaint Court notes that “there is no constitutional right to an adequate The Complaint alleges that each Plaintiff individually lodged investigation. Thus, a police officer's failure to pursue a a complaint regarding the alleged theft of property by particular investigative path is not a constitutional violation.” Defendants Daniel and Patricia Klein, the parents of Plaintiff Buari v. City of New York, 530 F. Supp. 3d 356, 389 (S.D.N.Y. Paulette Klein, in Colonie, New York. Compl. at pp. 3 & 2021) (internal citations and alterations omitted). 4. Though not entirely clear, the Complaint then appears to allege that those reports were subsequently altered or Moreover, while the sole legal claim asserted is a purported falsified. Id. at p. 4. Plaintiffs allege that Defendants from violation of Plaintiffs’ right to equal protection, the Complaint the Colonie Police Department, the Klein Defendants, and a does not support such a claim at this time. “The Equal retired police officer from Schenectady then conspired to not Protection Clause requires that the government treat all fully investigate the matter. Id. at pp. 4-5. similarly situated people alike.” Gentile v. Nulty, 769 F. Supp. 2d 573, 577-78 (S.D.N.Y. 2011). The Complaint, The Complaint also alleges that Patricia Klein violated an however, contains no such allegation. For example, “[i]n order of protection by unlawfully tracking Plaintiff Klein's order to state a claim under the Equal Protection Clause for movements, with the assistance of other named Defendants. selective enforcement of the law, plaintiffs must plead that (1) Id. at pp. 5-6. they were ‘treated differently from other similarly situated’ individuals and (2) this ‘differential treatment was based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or C. Analysis of the Complaint malicious or bad faith intent to injure a person.’ ” Butler v. City of Batavia, 323 F. App'x 21, 22 (2d Cir. 2009) (quoting Rule 8 of the Federal Rules of Civil Procedure provides that a pleading must contain: Cine SK8, Inc. v. Town of Henrietta, 507 F.3d 778, 790 (2d Cir. 2007)). No allegations of this sort are made here. At (1) a short and plain statement of the grounds for the court's best, the Complaint makes entirely conclusory allegations jurisdiction ...; of a conspiracy involving Defendant Weber seeking to protect Defendants Daniel and Patricia Klein from being (2) a short and plain statement of the claim showing that investigated. Compl. at p. 5. “A complaint containing only the pleader is entitled to relief; and conclusory, vague, or general allegations of conspiracy to deprive a person of constitutional rights cannot withstand a (3) a demand for the relief sought, which may include relief motion to dismiss.” Sommer v. Dixon, 709 F.2d 173, 175 (2d in the alternative or different types of relief. Cir. 1983). FED. R. CIV. P. 8(a). The purpose of Rule 8 “is to give fair notice of the claim being asserted so as to permit the *3 The Complaint also fails to properly allege state adverse party the opportunity to file a responsive answer action. Any claim under section 1983 requires state action. [and] prepare an adequate defense.” Hudson v. Artuz, 1998 “Because the United States Constitution regulates only the Government, not private parties, a litigant claiming that his that the challenged conduct constitutes state action.” Flagg they should include a corresponding number of paragraphs v. Yonkers Sav. & Loan Ass'n, FA, 396 F.3d 178, 186 (2d in the amended complaint for each such allegation, with Cir. 2005) (internal quotation marks omitted). “A plaintiff each paragraph specifying (i) the alleged act of misconduct; pressing a claim of violation of his constitutional rights under (ii) the date, including the year, on which such misconduct § 1983 is thus required to show state action.” Tancredi v. occurred; (iii) the names of each and every individual who Metro. Life Ins. Co., 316 F.3d 308, 312 (2d Cir. 2003). “State participated in such misconduct; (iv) where appropriate, the action requires both the exercise of some right or privilege location where the alleged misconduct occurred; and, (v) the created by the State and the involvement of a person who nexus between such misconduct and Plaintiffs’ civil and/or may fairly be said to be a state actor.” Meadows v. United constitutional rights. Servs., Inc., 963 F.3d 240, 243 (2d Cir. 2020) (quoting Flagg v. Yonkers Sav. & Loan Ass'n, FA, 396 F.3d at 186) (internal Plaintiffs are further cautioned that no portion of the prior quotations and alterations omitted). The Klein Defendants Complaint shall be incorporated into the amended complaint and Weber are not alleged to be governmental employees and by reference. Any amended complaint submitted by Plaintiffs so a basis for state action as to them is unclear. While a private must set forth all of the claims they intend to assert against the person can be deemed a state actor if acting concert with a Defendants and must demonstrate that a case or controversy governmental employee, “[a] merely conclusory allegation exists between the Plaintiffs and Defendants which Plaintiffs that a private entity acted in concert with a state actor does have a legal right to pursue and over which this Court has not suffice to state a § 1983 claim against the private entity.” jurisdiction. Ciambriello v. Cnty. of Nassau, 292 F.3d 307, 324 (2d Cir. 2002). II. CONCLUSION Finally, the Court notes that neither Plaintiff has signed the Complaint. Federal Rule of Civil Procedure 11(a) provides: For the reasons stated herein, it is hereby “Every pleading, written motion, and other paper must be signed by at least one attorney of record in the attorney's RECOMMENDED, that Plaintiffs’ Complaint be name--or by a party personally if the party is unrepresented.” DISMISSED with leave to amend; and it is “The Supreme Court and the Second Circuit have applied this requirement strictly, and they have given no indication that *4 ORDERED, that the Clerk of the Court serve a copy of it may be waived.” Grasso v. Donnelly-Schoffstall, 2023 WL this Report-Recommendation and Order upon the parties to 4847313, at *5 (N.D.N.Y. July 28, 2023). Under Rule 11(a), this action. an unsigned pleading must be stricken “unless the omission is promptly corrected after being called to the attorney's or Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen party's attention.” The Court, therefore, provides notice that (14)3 days within which to file written objections to the any future filing permitted by the District Court in this action foregoing report. Such objections shall be filed with the Clerk should be signed by all plaintiffs and the failure to comply of the Court. FAILURE TO OBJECT TO THIS REPORT may result in any deficient pleading being stricken. WITHIN FOURTEEN (14) DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 For all of these reasons, the Court recommends that the (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Complaint be dismissed, but that Plaintiffs be afforded Servs., 892 F.2d 15 (2d Cir. 1989)); see also 28 U.S.C. § an opportunity to amend. The Court advises Plaintiff that 636(b)(1); FED. R. CIV. P. 72 & 6(a). should they be permitted to amend the Complaint, any amended pleading must comply with Rules 8 and 10 of 3 the Federal Rules of Civil Procedure. Any such amended If you are proceeding pro se and are served with complaint, which shall supersede and replace in its entirety this Order by mail, three additional days will be the previous Complaint filed by Plaintiff, must contain added to the fourteen-day period, meaning that you sequentially numbered paragraphs containing only one have seventeen days from the date the order was act of misconduct per paragraph. Thus, if Plaintiffs claims mailed to you to serve and file objections. FED. R. that their civil and/or constitutional rights were violated by CIV. P. 6(d). If the last day of that prescribed period the deadline is extended until the end of the next All Citations day that is not a Saturday, Sunday, or legal holiday. Slip Copy, 2024 WL 4712526 FED. R. CIV. P. 6(a)(1)(C). End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works. Direct History (2) 1. Carr v. Gerwitz 2024 WL 4712526 , N.D.N.Y. , Sep. 20, 2024 Report and Recommendation Adopted by 2. Carr v. Gerwitz 2024 WL 4456969 , N.D.N.Y. , Oct. 10, 2024 There are no Filings for this citation.