DOCUMENT ELECTRONICALLY FILED UNITED STATES DISTRICT COURT DOC #: SOUTHERN DISTRICT OF NEW YORK DATE FILED: 8/13/2025 SHYTIQUE KELLY, Plaintiff, against: 25-CV-2279 (NSR) L. SILVER; ANDREW MILLER; A. ACRISH; CAROL MOORES; R. BENTIVEGNA; ORDER OF SERVICE CARRIE; GIORDANI; RODRIGUEZ; JOHN DOE; C.O. P.; B. TUOHY, Defendants.
NELSON S. ROMAN, United States District Judge: Plaintiff, who is currently incarcerated at Eastern Correctional Facility, brings this pro se action under 42 U.S.C. § 1983, alleging that Defendants denied him adequate medical care when he was incarcerated in Green Haven Correctional Facility.' By order dated April 30, 2025, the court granted Plaintiff’s request to proceed without prepayment of fees, that is, in forma pauperis (“IFP”).? STANDARD OF REVIEW The Court must dismiss a complaint, or portion thereof, that is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b); see Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007). The Court must also dismiss a complaint when the Court lacks
' Plaintiff originally filed this action in the United States District Court for the Northern District of New York. See Kelly v. Silver, No. 9:25-CV-0203 (N.D.N.Y. Mar. 13, 2025). By order dated March 13, 2025, the Northern District transferred this action to this court. (ECF 4.) By order dated March 21, 2025, Chief Judge Laura Taylor Swain directed that Plaintiff file an updated prisoner authorization (ECF 7), which Plaintiff did on April 11, 2025. ? Prisoners are not exempt from paying the full filing fee even when they have been granted permission to proceed IFP. See 28 U.S.C. § 1915(b)(1).
subject matter jurisdiction. See Fed. R. Civ. P. 12(h)(3). 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 [claims] that they suggest,” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal quotation marks
and citations omitted) (emphasis in original). DISCUSSION A. Personal involvement To state a claim under 42 U.S.C. § 1983, a plaintiff must allege facts showing the defendants’ direct and personal involvement in the alleged constitutional deprivation. See Spavone v. N.Y. State Dep’ t of Corr. Serv., 719 F.3d 127, 135 (2d Cir. 2013) (“It is well settled in this Circuit that personal involvement of defendants in the alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.” (internal quotation marks omitted)). A defendant may not be held liable under Section 1983 solely because that defendant employs or supervises a person who violated the plaintiff’s rights. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (“Government officials may not be held liable for the unconstitutional conduct of their
subordinates under a theory of respondeat superior.”). Rather, “[t]o hold a state official liable under § 1983, a plaintiff must plead and prove the elements of the underlying constitutional violation directly against the official[.]” Tangreti v. Bachmann, 983 F.3d 609, 620 (2d Cir. 2020). Plaintiff does not allege any facts showing how Defendant B. Tuohy was personally involved in the events underlying his claims. The Court therefore dismisses Plaintiff’s claims against this defendant for failure to state a claim on which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii). Plaintiff also names as defendants a John Doe corrections officer and “C.O. P.” The complaint, however, alleges no facts showing how these unidentified individuals were involved in the events giving rise to Plaintiff’s claims. Nor does the complaint include any information that would allow the New York State Department of Corrections and Community Supervision (“DOCCS”) to assist Plaintiff and the Court in identifying these defendants. In light of Plaintiff’s pro se status, the Court grants him 30 days’ leave to file an amended
complaint alleging facts showing how Tuohy was personally involved in violating his federal constitutional rights. In his amended complaint, Plaintiff may also allege additional facts showing how the John Doe correction officer and “C.O. P.” were involved in the events giving rise to his claims and facts that would allow DOCCS to assist in ascertaining their identities. Because Plaintiff’s amended complaint will completely replace, not supplement, the original complaint, any facts or claims that Plaintiff wants to include from the original complaint must be repeated in the amended complaint. B. Service on remaining named defendants Because Plaintiff has been granted permission to proceed IFP, he is entitled to rely on the Court and the U.S. Marshals Service to effect service.3 Walker v. Schult, 717 F.3d. 119, 123 n.6 2F (2d Cir. 2013); see also 28 U.S.C. § 1915(d) (“The officers of the court shall issue and serve all process . . . in [IFP] cases.”); Fed. R. Civ. P. 4(c)(3) (the court must order the Marshals Service to serve if the plaintiff is authorized to proceed IFP). To allow Plaintiff to effect service on Defendants Dr. L. Silver, Nurse Andrew Miller, Dr. A. Acrish, Carol A. Moores, Dr. Bentivegna, Nurse Carrie, Nurse Giordani, and Nurse Rodriguez through the U.S. Marshals Service, the Clerk of Court is instructed to fill out a U.S. Marshals
3Although Rule 4(m) of the Federal Rules of Civil Procedure generally requires that a summons be served within 90 days of the date the complaint is filed, Plaintiff is proceeding IFP and could not have effected service until the Court reviewed the complaint and ordered that any summonses be issued. The Court therefore extends the time to serve until 90 days after the date any summonses issue. Service Process Receipt and Return form (“USM-285 form”) for each of these defendants. The Clerk of Court is further instructed to issue summonses and deliver to the Marshals Service all the paperwork necessary for the Marshals Service to effect service upon these defendants. If the complaint is not served within 90 days after the date summonses are issued, Plaintiff should request an extension of time for service. See Meilleur v. Strong, 682 F.3d 56, 63 (2d Cir. 2012) (holding that it is the plaintiff’s responsibility to request an extension of time for service).
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DOCUMENT ELECTRONICALLY FILED UNITED STATES DISTRICT COURT DOC #: SOUTHERN DISTRICT OF NEW YORK DATE FILED: 8/13/2025 SHYTIQUE KELLY, Plaintiff, against: 25-CV-2279 (NSR) L. SILVER; ANDREW MILLER; A. ACRISH; CAROL MOORES; R. BENTIVEGNA; ORDER OF SERVICE CARRIE; GIORDANI; RODRIGUEZ; JOHN DOE; C.O. P.; B. TUOHY, Defendants.
NELSON S. ROMAN, United States District Judge: Plaintiff, who is currently incarcerated at Eastern Correctional Facility, brings this pro se action under 42 U.S.C. § 1983, alleging that Defendants denied him adequate medical care when he was incarcerated in Green Haven Correctional Facility.' By order dated April 30, 2025, the court granted Plaintiff’s request to proceed without prepayment of fees, that is, in forma pauperis (“IFP”).? STANDARD OF REVIEW The Court must dismiss a complaint, or portion thereof, that is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b); see Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007). The Court must also dismiss a complaint when the Court lacks
' Plaintiff originally filed this action in the United States District Court for the Northern District of New York. See Kelly v. Silver, No. 9:25-CV-0203 (N.D.N.Y. Mar. 13, 2025). By order dated March 13, 2025, the Northern District transferred this action to this court. (ECF 4.) By order dated March 21, 2025, Chief Judge Laura Taylor Swain directed that Plaintiff file an updated prisoner authorization (ECF 7), which Plaintiff did on April 11, 2025. ? Prisoners are not exempt from paying the full filing fee even when they have been granted permission to proceed IFP. See 28 U.S.C. § 1915(b)(1).
subject matter jurisdiction. See Fed. R. Civ. P. 12(h)(3). 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 [claims] that they suggest,” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal quotation marks
and citations omitted) (emphasis in original). DISCUSSION A. Personal involvement To state a claim under 42 U.S.C. § 1983, a plaintiff must allege facts showing the defendants’ direct and personal involvement in the alleged constitutional deprivation. See Spavone v. N.Y. State Dep’ t of Corr. Serv., 719 F.3d 127, 135 (2d Cir. 2013) (“It is well settled in this Circuit that personal involvement of defendants in the alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.” (internal quotation marks omitted)). A defendant may not be held liable under Section 1983 solely because that defendant employs or supervises a person who violated the plaintiff’s rights. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (“Government officials may not be held liable for the unconstitutional conduct of their
subordinates under a theory of respondeat superior.”). Rather, “[t]o hold a state official liable under § 1983, a plaintiff must plead and prove the elements of the underlying constitutional violation directly against the official[.]” Tangreti v. Bachmann, 983 F.3d 609, 620 (2d Cir. 2020). Plaintiff does not allege any facts showing how Defendant B. Tuohy was personally involved in the events underlying his claims. The Court therefore dismisses Plaintiff’s claims against this defendant for failure to state a claim on which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii). Plaintiff also names as defendants a John Doe corrections officer and “C.O. P.” The complaint, however, alleges no facts showing how these unidentified individuals were involved in the events giving rise to Plaintiff’s claims. Nor does the complaint include any information that would allow the New York State Department of Corrections and Community Supervision (“DOCCS”) to assist Plaintiff and the Court in identifying these defendants. In light of Plaintiff’s pro se status, the Court grants him 30 days’ leave to file an amended
complaint alleging facts showing how Tuohy was personally involved in violating his federal constitutional rights. In his amended complaint, Plaintiff may also allege additional facts showing how the John Doe correction officer and “C.O. P.” were involved in the events giving rise to his claims and facts that would allow DOCCS to assist in ascertaining their identities. Because Plaintiff’s amended complaint will completely replace, not supplement, the original complaint, any facts or claims that Plaintiff wants to include from the original complaint must be repeated in the amended complaint. B. Service on remaining named defendants Because Plaintiff has been granted permission to proceed IFP, he is entitled to rely on the Court and the U.S. Marshals Service to effect service.3 Walker v. Schult, 717 F.3d. 119, 123 n.6 2F (2d Cir. 2013); see also 28 U.S.C. § 1915(d) (“The officers of the court shall issue and serve all process . . . in [IFP] cases.”); Fed. R. Civ. P. 4(c)(3) (the court must order the Marshals Service to serve if the plaintiff is authorized to proceed IFP). To allow Plaintiff to effect service on Defendants Dr. L. Silver, Nurse Andrew Miller, Dr. A. Acrish, Carol A. Moores, Dr. Bentivegna, Nurse Carrie, Nurse Giordani, and Nurse Rodriguez through the U.S. Marshals Service, the Clerk of Court is instructed to fill out a U.S. Marshals
3Although Rule 4(m) of the Federal Rules of Civil Procedure generally requires that a summons be served within 90 days of the date the complaint is filed, Plaintiff is proceeding IFP and could not have effected service until the Court reviewed the complaint and ordered that any summonses be issued. The Court therefore extends the time to serve until 90 days after the date any summonses issue. Service Process Receipt and Return form (“USM-285 form”) for each of these defendants. The Clerk of Court is further instructed to issue summonses and deliver to the Marshals Service all the paperwork necessary for the Marshals Service to effect service upon these defendants. If the complaint is not served within 90 days after the date summonses are issued, Plaintiff should request an extension of time for service. See Meilleur v. Strong, 682 F.3d 56, 63 (2d Cir. 2012) (holding that it is the plaintiff’s responsibility to request an extension of time for service). Plaintiff must notify the Court in writing if his address changes, and the Court may dismiss the action if Plaintiff fails to do so. CONCLUSION The Court dismisses Plaintiff’s claims against B. Tuohy for failure to state a claim on which relief may be granted, see 28 U.S.C. § 1915(e)(2)(B)(11), with 30 days’ leave to replead in an amended complaint. An amended complaint form is attached to this order The Clerk of Court is directed to issue summonses for Dr. L. Silver, Nurse Andrew Miller, Dr. A. Acrish, Carol A. Moores, Dr. Bentivegna, Nurse Carrie, Nurse Giordani, and Nurse Rodriguez, complete the USM-285 form with the address for these defendants, and deliver all documents necessary to effect service to the U.S. Marshals Service. The Clerk of Court is also directed to mail an information package to Plaintiff. SO ORDERED. Dated: August 13, 2025 White Plains, New York NELSON S.ROMAN United States District Judge
SERVICE ADDRESS FOR EACH DEFENDANT
Dr. L. Silver Green Haven Correctional Facility 594 Route 216 Stormville, NY 12582-0010 Nurse Andrew Miller Green Haven Correctional Facility 594 Route 216 Stormville, NY 12582-0010 Dr. A. Acrish Green Haven Correctional Facility 594 Route 216 Stormville, NY 12582-0010 Dr. R. Bentivegna Green Haven Correctional Facility 594 Route 216 Stormville, NY 12582-0010 Nurse Carrie Green Haven Correctional Facility 594 Route 216 Stormville, NY 12582-0010 Nurse Rodriguez Green Haven Correctional Facility 594 Route 216 Stormville, NY 12582-0010 Nurse Giordani Green Haven Correctional Facility 594 Route 216 Stormville, NY 12582-0010 Carol A. Moores Chief Medical Officer Division of Health Services 1220 Washington Avenue Albany, NY 12226 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
CVE TT a (clu ber if has b Write the full name of each plaintiff. evened) me eNews
against AMENDED
□ COMPLAINT ee Do you want a jury trial? LlYes ULINo
Write the full name of each defendant. If you need more space, please write “see attached” in the space above and attach an additional sheet of paper with the full list of names. The names listed above must be identical to those contained in Section Il.
NOTICE The public can access electronic court files. For privacy and security reasons, papers filed with the court should therefore not contain: an individual’s full social security number or full birth date; the full name of a person known to be a minor; or a complete financial account number. A filing may include only: the last four digits of a social security number; the year of an individual’s birth; a minor’s initials; and the last four digits of a financial account number. See Federal Rule of Civil Procedure 5.2.
Rev. 2/10/17
I. BASIS FOR JURISDICTION Federal courts are courts of limited jurisdiction (limited power). Generally, only two types of cases can be heard in federal court: cases involving a federal question and cases involving diversity of citizenship of the parties. Under 28 U.S.C. § 1331, a case arising under the United States Constitution or federal laws or treaties is a federal question case. Under 28 U.S.C. § 1332, a case in which a citizen of one State sues a citizen of another State or nation, and the amount in controversy is more than $75,000, is a diversity case. In a diversity case, no defendant may be a citizen of the same State as any plaintiff. What is the basis for federal-court jurisdiction in your case? [] Federal Question L] Diversity of Citizenship A. If you checked Federal Question Which of your federal constitutional or federal statutory rights have been violated?
B. If you checked Diversity of Citizenship 1. Citizenship of the parties Of what State is each party a citizen? The plaintiff , ,is a citizen of the State of (Plaintiff's name)
(State in which the person resides and intends to remain.) or, if not lawfully admitted for permanent residence in the United States, a citizen or subject of the foreign state of
If more than one plaintiff is named in the complaint, attach additional pages providing information for each additional plaintiff.
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If the defendant is an individual:
The defendant, , is a citizen of the State of (Defendant’s name)
or, if not lawfully admitted for permanent residence in the United States, a citizen or subject of the foreign state of . If the defendant is a corporation: The defendant, , is incorporated under the laws of the State of and has its principal place of business in the State of or is incorporated under the laws of (foreign state) and has its principal place of business in . If more than one defendant is named in the complaint, attach additional pages providing information for each additional defendant.
II. PARTIES A. Plaintiff Information Provide the following information for each plaintiff named in the complaint. Attach additional pages if needed.
First Name Middle Initial Last Name
Street Address
County, City State Zip Code
Telephone Number Email Address (if available) B. Defendant Information To the best of your ability, provide addresses where each defendant may be served. If the correct information is not provided, it could delay or prevent service of the complaint on the defendant. Make sure that the defendants listed below are the same as those listed in the caption. Attach additional pages if needed. Defendant 1: First Name Last Name
Current Job Title (or other identifying information)
Current Work Address (or other address where defendant may be served)
County, City State Zip Code Defendant 2: First Name Last Name
Current Job Title (or other identifying information)
Current Work Address (or other address where defendant may be served)
County, City State Zip Code Defendant 3: First Name Last Name
Current Job Title (or other identifying information)
Current Work Address (or other address where defendant may be served)
County, City State Zip Code Defendant 4: First Name Last Name
Current Job Title (or other identifying information)
Current Work Address (or other address where defendant may be served)
County, City State Zip Code III. STATEMENT OF CLAIM Place(s) of occurrence:
Date(s) of occurrence: FACTS: State here briefly the FACTS that support your case. Describe what happened, how you were harmed, and what each defendant personally did or failed to do that harmed you. Attach additional pages if needed. INJURIES: If you were injured as a result of these actions, describe your injuries and what medical treatment, if any, you required and received.
IV. RELIEF State briefly what money damages or other relief you want the court to order. V. PLAINTIFF’S CERTIFICATION AND WARNINGS By signing below, I certify to the best of my knowledge, information, and belief that: (1) the complaint is not being presented for an improper purpose (such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation); (2) the claims are supported by existing law or by a nonfrivolous argument to change existing law; (3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and (4) the complaint otherwise complies with the requirements of Federal Rule of Civil Procedure 11. agree to notify the Clerk's Office in writing of any changes to my mailing address. I understand that my failure to keep a current address on file with the Clerk's Office may result in the dismissal of my case.
Each Plaintiff must sign and date the complaint. Attach additional pages if necessary. If seeking to proceed without prepayment of fees, each plaintiff must also submit an IFP application.
Dated Plaintiff's Signature
First Name Middle Initial Last Name
Street Address
County, City State Zip Code
Telephone Number Email Address (if available)
I have read the Pro Se (Nonprisoner) Consent to Receive Documents Electronically: OYes [LINo If you do consent to receive documents electronically, submit the completed form with your complaint. If you do not consent, please do not attach the form.
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