Nelson v. CMC Packaging Solutions

• Court: District Court, N.D. New York
• Decided: December 11, 2024
• Docket: 5:24-cv-01378
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

SETH R. NELSON, Plaintiff, 5:24-CV-1378 -v.- (DNH/MJK) CMC PACKAGING SOLUTIONS, KKR and AMAZON.COM, INC.,

Defendants. _____________________________________________________________________ SETH R. NELSON, Plaintiff, pro se

MITCHELL J. KATZ, U.S. Magistrate Judge

TO THE HONORABLE DAVID N. HURD, U.S. District Judge:

ORDER AND REPORT-RECOMMENDATION

Plaintiff commenced this action on November 13, 2024 by filing a complaint (Dkt. No. 1). On November 13, 2024, United States District Court Judge David N. Hurd administratively closed this matter because plaintiff failed to pay the appropriate filing fee. (Dkt. No. 3). On November 25, 2024, plaintiff filed an amended complaint (Dkt. No. 4), together with a motion for leave to proceed in forma pauperis (Dkt. No. 6). The Clerk has sent to the court for review the amended complaint, as well as the IFP application. I. IFP Application Plaintiff’s IFP application declares that he is unable to pay the filing fee. (Dkt.

No. 6). After reviewing plaintiff’s application, this court finds that he is financially eligible for IFP status. However, in addition to determining whether plaintiff meets the financial criteria to proceed IFP, the court must also consider the sufficiency of the allegations set forth in the complaint in light of 28 U.S.C. § 1915, which provides that the court shall dismiss the case at any time if the court determines 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. See 28 U.S.C. § 1915 (e)(2)(B)(i)-(iii). In determining whether an action is frivolous, the 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) and 28 U.S.C. § 1915. Dismissal of frivolous actions is appropriate to prevent abuses of court process as well as to 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). Although the court has a duty to show liberality toward pro se litigants and must use extreme caution in ordering sua sponte dismissal of a pro se complaint before the adverse party has been served and has had an opportunity to respond, the court still has a responsibility to determine that a claim is not frivolous before permitting a plaintiff to

proceed. See Fitzgerald v. First E. Seventh St. Tenants Corp., 221 F.3d 362, 363 (2d Cir. 2000) (finding that a district court may dismiss a frivolous complaint sua sponte even when plaintiff has paid the filing fee). To survive dismissal for failure to state a claim, the 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 Twombly, 550 U.S. at 570). “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). In addition, Fed. R. Civ. P. 8(a)(2) requires that a pleading 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)). II. Amended Complaint Paragraph “2” of the amended complaint alleges that plaintiff was retaliated against because of his race/color, sex, sexual orientation, and lack of religion. Beyond that, the court is unable discern the factual nature of plaintiff’s claim. The amended complaint is replete with conclusions, devoid of any supporting factual assertions and riddled with various unconnected complaints about corrupted software. A complaint that fails to comply with the pleading requirements of Fed. R. Civ. P. 8 and 10 should be dismissed when it “presents far too a heavy burden in terms of defendants’ duty to shape a comprehensive defense and provides no meaningful basis for the Court to

assess the sufficiency of their claims.” Gonzales v. Wing, 167 F.R.D. 352, 355 (N.D.N.Y. Jun. 9, 1996), aff’d 1997 U.S. App. LEXIS 12289 (2d Cir. 1997). Although plaintiff refers the court to the exhibits attached to his amended complaint, they are nothing more than an array of various documents, one of which is captioned “My Rough Allegation Summary (These are not fully accurate yet).” The court need not accept allegations for initial review that the plaintiff identifies as lacking

accuracy. The court finds it troubling that plaintiff would present allegations to the court that have not been fully vetted or the accuracy of which may not have been fully investigated. The court reminds plaintiff of Fed. R. Civ. P. 11(b)(1) and his obligation not to present matters to the court for “any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation.”

III. Statute of Limitations A. Legal Standard “Before an aggrieved party can assert a Title VII claim in federal court, he is generally required to exhaust the administrative remedies provided by the statute.”

Duplan v. City of New York, 888 F.3d 612, 621 (2d Cir. 2018) (citing Fowlkes v. Ironworkers Local 40, 790 F.3d 378, 384 (2d Cir. 2015)). “That is, a Title VII plaintiff generally must file a charge of discrimination with the EEOC ‘within three hundred days after the alleged unlawful employment practice occurred,’ … and must then file an action in federal court within 90 days of receiving a right-to-sue letter from the agency.” Id. (quoting 42 U.S.C. § 2000e-5(e)(1), (f)(1)) (footnote omitted). “The 90-day period is ‘strictly enforced,’” Hughes v. Elmira Coll., 584 F. Supp.

2d 588, 589 (W.D.N.Y. 2008) (quoting Holmes v. Nat'l Broad. Co., 914 F. Supp. 1040, 1042 (S.D.N.Y. 1996)), and “in the absence of a recognizable equitable consideration, the court cannot extend the limitations period ‘by even one day.’” Johnson v. Al Tech Specialties Corp., 731 F.2d 143, 146 (2d Cir. 1984) (quoting Rice v. New England Coll., 676 F.2d 9, 11 (1st Cir. 1982)). “Although pro se plaintiffs are entitled to leniency in other areas of litigation, the

case law is clear: The 90-day deadline is strictly enforced against represented and pro se plaintiffs alike.” Perez v. Mason Tenders Dist. Council Tr. Funds, No. 17-CV-1022, 2017 WL 5125542, *3 (S.D.N.Y. Nov. 1, 2017) (collecting cases and noting that “[i]f a pro se plaintiff misses her deadline by a few days, or even one day, her action must be dismissed as untimely”); see also Glover v. Fed’n of Multicultural Programs, No. 14- CV-4006, 2015 WL 4600645, *7 (E.D.N.Y. Jul. 29, 2015) (dismissing Title VII claims

filed one day late); Lewis v. N.Y.C. Dep’t of Educ., No. 12-CV-675, 2013 WL 5405534, *5 (S.D.N.Y. Sept. 25, 2013) (dismissing complaint filed three days late); Ziyan Shi v. New York Dep’t of State, Div. of Licensing Servs., 393 F. Supp. 3d 329, 342 (S.D.N.Y. 2019) (dismissing Title VII claims filed by counsel, who later withdrew from the case, one day late). The ninety-day period is akin to a statute of limitations which may be tolled in

certain situations. Johnson, 731 F.2d at 146; see also Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 398 (1982). “Normally it is assumed that a mail document is received three days after its mailing,” and it is presumed “that a notice provided by a government agency has been mailed on the date shown on the notice.” Sherlock v.

Montefiore Med. Ctr., 84 F.3d 522, 525-26 (2d Cir. 1996) (citing Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S. 147, 148, n.1 (1984)); see also Tiberio v. Allergy Asthma Immunology of Rochester, 664 F.3d 35, 37 (2d Cir. 2011). The three-day presumption can be rebutted if “a claimant presents sworn testimony or other admissible evidence from which it could be reasonably inferred either that the notice was mailed later than its typewritten date or that it took longer than three days to reach

[the claimant] by mail.” Sherlock, 84 F.3d at 526; see also Gardner v. Honest Weight Food Coop., Inc., 96 F. Supp. 2d 154, 159 (N.D.N.Y. 2000). However, it is insufficient to rebut the three-day presumption if a plaintiff only presents evidence showing either their “own lack of recollection” or a “mere denial of receipt.” Sherlock, 84 F.3d at 526; see also Isaacson v. N.Y. Organ Donor Network, 405 Fed. App’x. 552, 553 (2d Cir. 2011) (citing Meckel v. Cont'l Res. Co., 758 F.2d 811, 817 (2d Cir. 1985)).

Here, the EEOC’s Notice-of-Right-to-Sue-letter which plaintiff alleges he received on August 6, 2024 (Amended Compl. ¶ 11), and which plaintiff failed to attach as an exhibit to the amended complaint, presumably notified plaintiff that he had the right to file a civil action in the appropriate United States District Court within ninety calendar days from the date he received the EEOC’s decision. Thus, plaintiff was required to file his complaint on or before November 5, 2024, which would have been

within ninety days following his August 6, 2024 receipt of the Right-to-Sue-letter. Plaintiff did not commence this action until November 13 , 2024, ninety-nine days after receipt of the EEOC’s Right-to-Sue-letter. (Dkt. No. 1). Plaintiff’s action would have been untimely even if measured against his November 13, 2024 filing. (Dkt. No. 1).

Despite plaintiff’s pro se status, the court is obligated strictly apply the filing deadline. Accordingly, plaintiff’s amended complaint must be dismissed as untimely, unless plaintiff can establish that the ninety-day time period should be tolled. See Pryor v. Nat’l Grid, No. 10-CV-6507, 2011 WL 3251571, at *2 (S.D.N.Y. Jul. 28, 2011) (plaintiff’s action was dismissed even though filed only two days past the filing deadline).

The doctrine of equitable tolling allows the court to extend the statute of limitations past the time of expiration as necessary to avoid inequitable circumstances. See Johnson v. Nyack Hospital, 86 F.3d 8, 12 (2d Cir. 1996) (citation omitted). In order to apply equitable tolling, the court must find that “extraordinary circumstances”

prevented a plaintiff from performing the required act, and that the plaintiff acted “with reasonable diligence” during the period that he seeks to toll. Walker v. Jastremski, 430 F.3d 560, 564 (2d Cir. 2005) (quoting Doe v. Menefee, 391 F.3d 147, 159 (2d Cir.

2004)). “The term, ‘extraordinary’ refers not to the uniqueness of a party’s circumstances, but rather to the severity of the obstacle impeding compliance with a limitations period.” Harper v. Ercole, 648 F.3d 132, 137 (2d Cir. 2011). “[I]t is not enough for a party to show that he experienced extraordinary circumstances. He must

further demonstrate that those circumstances caused him to miss the original filing deadline.” Id. Moreover, equitable tolling is “not a cure-all,” Wallace v. Kato, 549 U.S. 384, 396 (2007), and “is only appropriate in rare and exceptional circumstance[s].”

Serilli-Edelglass v. N.Y. Transit Auth., 333 F.3d 74, 80-81 (2d Cir. 2003) (internal citations and quotations omitted). 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 the 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). The court recommends that plaintiff’s amended complaint be dismissed without prejudice as untimely, and that plaintiff be afforded leave to plead facts, to the extent they exist, that would support the court’s application of equitable tolling. Any amended pleading filed by plaintiff should also consist of a concise and coherent statement of facts, such that the court can discern the allegations underlying plaintiff’s claims.

WHEREFORE, based on the findings above, it is ORDERED, that plaintiff's motion to proceed IFP (Dkt. No. 6) is GRANTED,! and it is RECOMMENDED, that the district court DISMISS plaintiff's amended complaint WITHOUT PREJUDICE AND WITH LEAVE TO AMEND, and it is ORDERED, that the Clerk of the Court serve a copy of this Order and Report- Recommendation on plaintiff by regular mail.’ Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have fourteen (14) days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Sec’y of Health and Hum. Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(e), 72.

Dated: December 11, 2024 Mitchell J. a U.S. Magistrate Judge

| The court notes that although plaintiff's IFP application has been granted, plaintiff will still be required to pay fees that he may incur in the future regarding this action, including but not limited to copying and/or witness fees. ? 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).

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 © 2024 Thomson Reuters. No claim to original U.S. Government Works. 2021 WL 1345520 (5) Fourteenth Amendment due process claims; (6) First Only the Westlaw citation is currently available. Amendment access to court and mail interference claims; United States District Court, N.D. New York. (7) constitutional claims related to the grievance process; (8) Fourteenth Amendment equal protection claims; (9) Sixth Andrea LAPIETRA, Individually and as Power Amendment claims related to the right to counsel; (10) state of Attorney, and Deashon Tarver, Plaintiffs, law claims; and (11) claims pursuant to the Americans with v. Disabilities Act (“ADA”). See generally, Compl. LaPietra CITY OF ALBANY POLICE asserted the following claims: (1) Fourth Amendment claims for unreasonable search and seizure and false arrest; (2) state DEPARTMENT, et al., Defendants. law claims; and (3) First Amendment freedom of religion 9:19-CV-1527 (TJM/TWD) claim. See id. | Signed 04/09/2021 Following review of the Complaint pursuant to 28 U.S.C. | § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b), this Court Filed 04/12/2021 issued a Report-Recommendation and Order dated October 5, 2020 (the “Oct. Report-Rec.”) and recommended that Attorneys and Law Firms Plaintiffs’ claims against City of Albany Police Department and Albany County Correctional Facility, be dismissed with ANDREA LaPIETRA, Plaintiff, pro se prejudice. Dkt. No. 24 at 33. This Court also found that Tarver's Fourteenth Amendment excessive force and failure- DEASHON TARVER, Plaintiff, pro se to-protect claims against defendants Corrections Officers Burns (“Burns”) and Remillard (“Remillard”) and LaPietra's First Amendment Monell claim against Albany County REPORT-RECOMMENDATION AND ORDER were sufficiently plead. Id. at 33-34. The undersigned THÉRÈSE WILEY DANCKS, United States Magistrate recommended dismissal of all remaining claims without Judge prejudice with leave to amend. Id. at 34. I. INTRODUCTION In a Decision and Order issued on November 30, 2020 (the *1 This action was commenced by two pro se plaintiffs, “November Order”), the Court accepted and adopted the Oct. Deashon Tarver (“Tarver”) and Andrea LaPietra (“LaPietra”), Report-Rec. Dkt. No. 32. individually and “as Power of Attorney” for Tarver, pursuant to 42 U.S.C. § 1983 (“Section 1983”). Dkt. No. 1 (“Compl.”). A complete history of this action to date can be found in III. SUMMARY OF AMENDED COMPLAINT1 prior Decisions and Orders, including this Court's Report- 1 The Amended Complaint includes exhibits. See Recommendation and Order issued on October 5, 2020. See Dkt. No. 33-1 and 33-2. To the extent that the Dkt. No. 4, 11, 13, and 24 (the “Oct. Report-Rec.”). exhibits are relevant to the incidents described in the Amended Complaint, the Court will consider Presently before the Court is Plaintiffs’ Amended Complaint. the documents. See Cortec Indus., Inc. v. Sum Dkt. No. 33 (“Am. Compl.”). Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991) (the complaint is deemed to include any written instrument attached to it as an exhibit or any II. THE COMPLAINT AND OCT. REPORT-REC. statements or documents incorporated in it by In the original Complaint, Tarver asserted the following reference). claims: (1) Fourth Amendment claims for unreasonable search and seizure, false arrest, excessive force, and malicious The Amended Complaint, like the original pleading, is a prosecution; (2) Fourteenth Amendment claims for excessive rambling, disjointed mix of allegations, legal articles, statutes, force, failure-to-protect, and conditions of confinement; and caselaw. The pleading is 263 pages and includes 49 pages (3) First Amendment retaliation claims; (4) Fourteenth of exhibits. The Court will employ its best efforts to discern *2 In the Amended Complaint, Plaintiffs identify new the driveway while she was questioned by Sergeant Doe #8. defendants: Officer Keith Johnson, Officer Peterson, Officer Id. LaPietra told the Sergeant, out loud, that Tarver did not live John Doe #1, Officer John Doe #2, Officer John Doe #3, with her, but admitted he sometimes stayed overnight “with Officer John Doe #4, Officer John Doe #5, Officer John the permission of his PO.” Id. at 16, 19-20. Sergeant Doe #8, Doe #6, Officer John Doe #7, Sergeant/Lieutenant Doe #8, Officer John Doe #4, and Officer John Doe #5, entered the Plain Clothes Officer Doe #9, Parole Officer Jane Doe #1, apartment with LaPietra and continued to question her about Parole Officer Jane Doe #2, Officer John Doe #10, Officer items that they suspected were stolen. Am. Compl. at 16-17. John Doe #11, Corrections Officer Durocher, Corrections Officer Mika and Officer John Doe #9 arrived at the scene. Id. Officer Haley, Corrections Officer “505”, Corrections Officer at 15. Officer Mika asked LaPietra questions, documented her Criscione, Silver Masaba, MD, Vladislav Voss, D.D.S., NP information, and “stood by” as officers entered the residence. Anna Paulino, and Nurse Jane Doe #3.2 See Am. Compl. at Id. at 12, 18, 21. 1. Plaintiffs also assert claims against previously dismissed defendants, Officer Jan Mika, Officer Adam Iannacito, and In the Amended Complaint, LaPietra states, “the police and the City of Albany.3 See id. parole officers [...] could not have [...] probable cause that [Tarver] lived there because they had his wallet, N.Y.S. ID, parole blue card, and numerous other identifying documents 2 The Clerk of the Court is directed to add these and failed to check it before illegally entering and searching defendants to the docket report. the residence.” Am. Compl. at 18. Plaintiffs also assert that 3 Officer Johnson, Sergeant John Doe #8, Officer John Doe See Footnote 2, supra. Plaintiffs’ attempt to #4, and Officer John Doe #5 entered the residence with the reassert claims against Albany County Police knowledge that Tarver did not live there. Id. at 20. During the Department and Albany County Correctional course of Tarver's arrest, officers “threatened” Tarver with a Facility is improper as these claims were previously Taser and “whisper[ed] that they could get him for resisting dismissed, with prejudice. arrest[.]” Id. at 30. Tarver was arrested without a warrant and On December 14, 2016, Plaintiffs were at LaPietra's second- charged with petty larceny. Id. at 2, 22. floor apartment located at 1030 Washington Avenue, #2, in Albany, New York. Am. Compl. at 9. LaPietra left “to pick *3 Plaintiffs claim that Sergeant John Doe #8 “participated” something up” and Tarver stayed at the apartment. Id. in Tarver's arrest, was responsible for the supervision of the defendant police officers, failed to intervene and prevent the According to Tarver, he was “coming down the stairs, and ongoing misconduct of the officers, “which resulted in the had the door to stairwell open a crack,” and he and Officer arrest and prosecution” of Tarver. Am. Compl. at 24. Johnson “saw each other through the glass cutout window in the door to the house/vestibule.” Am. Compl. at 13. Officer Later that evening, “officers” took Tarver from the police Johnson “pushed in on the door to the house and entered into station to the emergency room at Albany Medical Center the vestibule while [Tarver] was still in the stairwell.” Id. because “he tried to hurt himself[.]” Am. Compl. at 109. Officer Johnson asked Tarver what he was doing there and At the emergency room, Tarver was permitted to use the Tarver said he lived there. Id. Officer Johnson handcuffed bathroom once, with an escort, without incident. Id. at 112. Tarver and entered the apartment, through a closed door. Id. However, Tarver's subsequent request to use the bathroom Parole Officers Jane Doe #1 and Doe #2 arrived at the scene was denied. Id. at 109-112. Tarver was told to remain seated, and entered the apartment. Id. at 15. and when he “could not,” Officer Iannacito, Officer John Doe #10, and Officer John Doe #11 tackled him onto a bed, When LaPietra returned to the apartment, “in excess of “used force on him” and cut off his clothes. Id. at 112. In six uniformed police officers” were present and Tarver was the “course of tackling” Tarver, Officer Iannacito fractured “sitting and being detained handcuffed in the back seat of a Tarver's “pinky finger” and the officers aggravated Tarver's police vehicle that was parked in front of the apartment” with preexisting “AC separation.” Am. Compl. at 109-110, 112. Officer John Doe #1. Am. Compl. at 9-10, 14. LaPietra claims Tarver's hands and feet were “completely shackled” at the that her “apartment was open and the police had been through time. Id. at 110. Tarver was charged with felony assault on the the apartment and all the personal belongings.” Id. at 16. officer. Id. at 2. From December 2016 until April 2018, Tarver was confined the assault and did not intervene on Tarver's behalf. Id. at at Albany County Correctional Facility (“Albany County 218. As a result of being sprayed with mace, Tarver suffered C.F.”). During his confinement at Albany County C.F., swelling and burning in his eyes. Id. at 219. Tarver did not receive proper medical care for his “AC separation.” Am. Compl. at 132, 146. Although x-rays were *4 On March 15, 2018, LaPietra visited Tarver. Am. Compl. taken of Tarver's shoulder, he was told by “a doctor” that, at 2, 221. At that time, Burns was “laughing” about the assault “[w]e don't do surgery here.” Am. Compl. at 132-133, 197. and told LaPietra that Tarver was a “bad boy,” who hadn't Tarver received no other treatment or care for his shoulder coughed for him. Id. at 221. complaints and his requests for an MRI and a visit with his personal physician were denied. Dkt. No. 33-1 at 21-22. After the incident, Tarver was placed in “lockdown” without During a visit, defendant Officer Criscione saw LaPietra any writing utensils or access to his mail. Am. Compl. at touching Tarver's shoulder and approached Tarver because 2, 137. The “charges” surrounding his lockdown were not she “thought the lump on his shoulder was contraband.” Am. properly or timely presented to him, he was not provided with Compl. at 131, 135; Dkt. No. 33-1 at 22. Criscione repeatedly an assistant related to the disciplinary charges, and he was asked what was under Tarver's shirt and LaPietra advised that terminated from his job. Id. at 238-39. Tarver was “blocked it was an injury. Am. Compl. at 135. Criscione “checked under from and denied grievances,” denied books, deprived of his his shirt” but “didn't care he had an injury.” Id. job, denied phone calls, and denied exercise and outdoor recreation. Id. at 137, 154. Tarver was “kept in solitary During his confinement, Tarver was also denied adequate confinement 24 hours a day.” Id. at 154. dental care. Am. Compl. at 195; Dkt. No. 33-1 at 22. Tarver “wait[ed] months to see a dentist” despite submitting Tarver also experienced “issues” with his legal mail at Albany numerous medical call slips. Am. Compl. at 195. On October County C.F. Am. Compl. at 193. For example, Tarver sent 5, 2017, LaPietra told Officer “505” that Tarver was not a letter “Judge Keefe,” a “consultant” with the Center for receiving proper care and asked the officer to “look into Law and Justice. Id. at 193-94. Tarver marked the envelope Deashon's mouth.” Id. The officer stated that he was not a “Attorney Mail” and placed an address on it. Id. The mail did dentist, told Tarver to “drop a slip,” and stated “[w]e don't do not reach the intended recipient and “may have affected his root canals here[.]” Id. rights to bring a claim against the municipality in a timely manner.” Id. In late October 2017, a nurse informed Tarver that he would “see the dentist in five days” and gave him Motrin for his On April 5, 2018, Tarver was released from “solitary pain. Am. Compl. at 196. When Tarver saw the dentist, he confinement” and transferred to Downstate Correctional was told that there was an “issue with his wisdom teeth and Facility. Am. Compl. at 2. a filling in another tooth” but the dentist “did nothing.” Id. In November 2017, Tarver was given Amoxycillin however, the Construing the Amended Complaint liberally, Tarver asserts facility records do not indicate that he suffered from decay or the following: (1) Fourth Amendment claims for illegal infection. Id. As a result, Tarver had a “tooth fall straight out search and seizure, false arrest, and malicious prosecution; of his mouth” while at Albany County C.F. Id. at 197. (2) Fourteenth Amendment claims for excessive force, failure to protect, deliberate medical indifference, and conditions On March 9, 2018, Tarver received a letter from Prisoner of confinement; (3) First Amendment retaliation claims; (4) Legal Services. Am. Compl. at 2, 137. On March 12, 2018, Fourteenth Amendment due process and equal protection Plaintiffs filed “preliminary papers in State Supreme Court” claims; (5) First Amendment access to court and mail for an extension of time to file a notice of claim. Id. at 2. interference claims; (6) constitutional claims related to the On March 13, 2018, Tarver was assaulted while the officers grievance process; (7) Sixth Amendment claims related to the performed “a squat and cough” in Tarver's cell. Id. at 2, 137, right to counsel; (8) state law claims; and (9) claims pursuant 217-218. Officer Burns pushed Tarver onto the bed, punched to the Americans with Disabilities Act (“ADA”), 42 U.S.C. § him in the face, and sprayed him with mace. Id. at 218, 222. 12101, et seq. LaPietra asserts Fourth Amendment claims for At the time of the assault, Tarver was naked and in a squat unreasonable search and seizure. position, with his back facing the officers. Am. Compl. at 222. damages. Am. Compl. at 258-59. For a more complete to pursue claims against the Doe defendants, they statement of Plaintiffs’ claims, reference is made to the must take reasonable steps to ascertain through Amended Complaint. discovery the identity of those individuals. Upon learning the identities of the unnamed defendants, Plaintiffs must amend the operative pleading to IV. SUFFICIENCY OF AMENDED COMPLAINT properly name those individuals as parties. The legal standard governing the dismissal of a pleading for failure to state a claim pursuant to 28 U.S.C. § 1915A(b) and A different conclusion is reached however, with respect to § 1915(e) was discussed at length in the Oct. Report-Rec. Peterson, John Doe #6, John Doe #7, and John Doe #9. In order to recover money damages in a civil rights action, a and it will not be restated in this Decision and Order. See plaintiff must plead enough facts to make a plausible showing Dkt. No. 24 at 2-5. The Court will construe the allegations in that a defendant was directly or personally involved in the the Amended Complaint with the utmost leniency. See, e.g., alleged constitutional violation. Ashcroft v. Iqbal, 556 U.S. Haines v. Kerner, 404 U.S. 519, 520 (1972) (holding that a 662, 676 (2009); Farrel v. Burke, 449 F.3d 470, 484 (2d Cir. pro se litigant's complaint is to be held “to a less stringent 2006). Conclusory allegations without any supporting factual standards than formal pleadings drafted by lawyers.”). allegations are insufficient to state a claim. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Although Plaintiffs A. Claims Arising from Incidents on December 14, contend that Peterson, John Doe #6, John Doe #7, and John 2016 Doe #9 were “present at the residence” on December 14, 2016, the Amended Complaint lacks any factual allegations that plausibly show that Peterson, John Doe #6, John Doe 1. Fourth Amendment and Related State Law Claims #7, and John Doe #9 were involved with the violation of In the November Order, the Court adopted the Plaintiffs’ constitutional rights in connection with the alleged recommendations in the Oct. Report-Rec. and dismissed illegal search and seizure. Therefore, the Court recommends Plaintiffs’ Fourth Amendment claims arising out of alleged that the claims be dismissed against the aforementioned wrongdoing at LaPietra's residence on December 14, 2016, defendants. for failure to adequately plead that any individual was personally involved. Dkt. No. 24 at 16-19; Dkt. No. 32 at 3. 2. Fourteenth Amendment *5 In the Amended Complaint, Plaintiffs identified Officers and Related State Law Claims Johnson and Peterson, as the “arresting officers,” and named nine Doe Police Officers and two Doe Parole Officers in the In the amended pleading, Tarver claims that Iannacito, John caption. Doe #10, and John Doe #11 used excessive force in the Emergency Room of Albany Medical Center while he was Mindful of the Second Circuit's instruction that a pro se restrained in shackles and that he was prevented from using plaintiff's pleadings must be liberally construed, Sealed the bathroom in violation of his due process rights. See Am. Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Compl. at 112, 176. Tarver also asserts state law claims for Cir. 2008), the Court finds that Plaintiffs’ § 1983 Fourth assault, battery, and negligent infliction of emotional distress. Amendment claims for illegal search, seizure, false arrest and Id. at 112, 163-66, 176. state law claims against defendants Johnson, John Doe #1, John Doe #2, John Doe #3, John Doe #4, John Doe #5, Jane The law related to Fourteenth Amendment excessive force Doe #1, Jane Doe #2, Sergeant Doe #8, and Officer Mika are claims was discussed in the Oct. Report-Rec. and will not be sufficiently plead and survive review.4 restated herein. Dkt. No. 24 at 23-24. Mindful of the Second Circuit's instruction that a pro se plaintiff's pleadings must 4 Because Plaintiffs’ Fourth Amendment claims are b Ce o uli rb t e fr ia nl dly s c tho an ts t Tru ae rvd e, rS 'se a Fl oed u rP tel ea nin thti f Af, m53 en7 d F m.3 ed n ta t e x1 c9 e1 s, s t ih ve e asserted against officers whose names are not force claims and state law claims against Iannacito, John Doe known to Plaintiffs, service of process cannot be #10, and John Doe #11 are sufficiently plead.5 effected on them unless and until these individuals 5 See Footnote 4, supra. (3) a practice so consistent and widespread it constitutes a custom or usage sufficient to impute constructive knowledge *6 With respect to Tarver's due process claim, the Court of the practice to policymaking officials; or (4) a failure by finds that this allegation is not sufficiently plead. Plaintiffs policymakers to train or supervise subordinates to such an concede that Tarver used the bathroom at the hospital, once extent it amounts to deliberate indifference to the rights of “without incident.” Am. Compl. at 112. Because Plaintiffs those who come in contact with the municipal employees. have not plead how long Tarver was denied the right to Dorsett–Felicelli, Inc. v. Cty. of Clinton, 371 F. Supp. 2d 183, use the bathroom, the pleading does not sufficiently state 194 (N.D.N.Y. 2005) (citing Monell, 436 U.S. at 690-91). a constitutional violation. See Turner v. Procopio, No. 13- “Custom denotes persistent and widespread practices, and CV-693, 2020 WL 2220244, at *11 (W.D.N.Y. Mar. 27, 2020) thus proof of a single incident of unconstitutional activity is (collecting cases), adopted, 2020 WL 2219503 (W.D.N.Y. not sufficient to impose liability under Monell....” Ahern v. May 7, 2020), appeal dismissed sub nom. Turner v. Doe, City of Syracuse, 411 F. Supp. 2d 132, 139 (N.D.N.Y. 2006) No. 20-1816, 2020 WL 7329107 (2d Cir. July 8, 2020); (punctuation and citation omitted). Accordingly, the Court Allah v. Murphy, No. 9:14-CV-0438 (GTS/TWD), 2016 WL recommends that Tarver's Monell claims against the City of 4401069, at *11 (N.D.N.Y. May 16, 2016) (holding that Albany be dismissed. a temporary deprivation of bathroom privileges does not give rise to a protected liberty interest), adopted, 2016 WL 4386013 (N.D.N.Y. Aug. 17, 2016), aff'd, 699 Fed. App'x 41 (2d Cir. 2017). 4. Timeliness of Claims Before the Court can recommend that Defendants be directed to respond to the Fourth and Fourteenth Amendment claims, 3. Monell Claims Against the City of Albany the statute of limitations must be addressed. As discussed in the Oct. Report-Rec., Tarver executed the Complaint on Tarver asserts Monell claims against the City of Albany February 6, 2020, and therefore, any § 1983 claims arising related to the events that transpired in the Emergency Room. out of incidents that occurred on December 14, 2016,6 are The law related municipality liability was discussed at length time barred unless Tarver can demonstrate that the limitations in the Oct. Report-Rec. and will not be restated herein. See period was tolled or that the claims are otherwise timely. Dkt. Dkt. No. 24 at 14-15. In the Oct. Report-Rec, the undersigned No. 24 at 19-21, 24-25. concluded that plaintiffs failed to identify or allege any facts plausibly 6 The reference in the Oct. Report- Rec. to incidents showing the existence of a municipal policy or custom that occurred on “December 16, 2016,” see Dkt. of the City of Albany authorizing, permitting, allowing, No. 24 at 20, is a typographical error. or tolerating “abuses in violation of the Constitution” *7 In § 1983 actions, the applicable statute of limitations including unreasonable search and seizure, false arrest, is the State's “general or residual statute for personal injury excessive force incidents or any affirmative link between actions.” Pearl v. City of Long Beach, 296 F.3d 76, 79 (2d Cir. such a policy and defendants’ alleged actions with regards 2002) (quoting Owens v. Okure, 488 U.S. 235, 249-50 (1989)) to Plaintiffs. (alterations omitted). In New York, a three year statute of Dkt. No. 24 at 15. limitations applies for personal injury actions and thus to Section 1983 actions. Id.; see also N.Y. C.P.L.R. § 214(5). Construing the Amended Complaint liberally, Tarver alleges Federal law determines when a Section 1983 action accrues, that the City of Albany maintains a policy of “using force which has been held to be the time “when the plaintiff knows first and asking questions later[.]” Am. Compl. at 158-59. or has reason to know of the harm.” Connolly v. McCall, 254 However, Plaintiff does not articulate an independent basis F.3d 36, 41 (2d Cir. 2001) (citation omitted). to hold the City of Albany liable. An “official policy or custom” can be shown in several ways: (1) a formal policy For example, Fourth Amendment claims for illegal searches officially endorsed by the municipality; (2) actions taken by and false arrest accrue at the time of the violation. See Giles v. Fitzgerald, No. 5:20-CV-0980 (MAD/ML), 2020 WL WL 248048 (N.D.N.Y. Jan. 26, 2021) (citing Dominguez v. proceeding in a timely fashion.” Antonmarchi v. Consol. Hendley, 545 F.3d 585, 589 (7th Cir. 2008)). Similarly, § 1983 Edison Co. of N.Y., 514 F. App'x 33, 36–37 (2d Cir. claims for excessive force, failure-to-intervene, and failure- 2013) (citation and internal citation omitted). “[E]quitable to-protect claims accrue “when the use of force occurred.” tolling may be appropriate where the plaintiff's failure to Fairley v. Collins, No. 09-CV-6894, 2011 WL 1002422, at *3 comply with the statute of limitations is attributable to (S.D.N.Y. Mar. 15, 2011); see also Roundtree v. City of New the plaintiff's medical condition.” Brown v. Parkchester York, No. 1:15-CV-6582, 2018 WL 443751, at *3 (S.D.N.Y. S. Condominiums, 287 F.3d 58, 60 (2d Cir. 2002). The Jan. 16, 2018). Second Circuit has “recognized that medical conditions, whether physical or psychiatric, can manifest extraordinary With respect to the state law claims, Tarver's assault and circumstances, depending on the facts presented.” Harper battery and false arrest/imprisonment claims are intentional v. Ecole, 648 F.3d 132, 137 (2d Cir. 2011); see Brown v. torts and thus, governed by a one-year statute of limitations. Parkchester South Condominiums, 287 F.3d 58, 60 (2d Cir. See Dkt. No. 24 at 20. Tarver's negligent infliction of 2002) (equitable tolling may be appropriate where failure to emotional distress claim is governed by a three-year statute comply is attributable to medical condition). of limitations. Dawkins v. Williams, 413 F.Supp.2d 161, 178 (N.D.N.Y. 2006) (quoting Dillon v. City of New York, 704 *8 Here, the Complaint, dated December 5, 2019, was N.Y.S.2d 1, 7–8 (1st Dep't 1999)). While assault and battery signed by LaPietra only. See Compl. at 6. On December claims must be asserted within one year from the date of 10, 2019, the Complaint was filed with the Court, and the incident, see id., claims for false arrest or imprisonment docketed, without Tarver's signature. See Compl. at 6. In a do not accrue until “the date of the prisoner's release from Decision and Order filed on January 15, 2020 (the “January confinement.” Lynch v. Suffolk Cty. Police Dep't, Inc., 348 Order”), the Court ordered the Clerk to send Tarver a copy Fed. App'x 672, 675–76 (2d Cir. 2009) (citation omitted). of the Complaint and directed Tarver to sign the Complaint within thirty days. Dkt. No. 4. On January 21, 2020, due Construing the Amended Complaint liberally, Tarver asserts to parole violations, Tarver was transferred to Downstate that he “preserved” his claims because the original complaint C.F. Am. Compl. at 2, 145. Upon his arrival, Tarver was in was filed before the statute of limitations expired. Am. “lockdown” for five days. See Dkt. No. 5 at 2. While confined Compl. at 136. Additionally, Tarver alleges that equitable at Downstate C.F., Tarver, who suffers from respiratory and tolling applies because he was “under duress” while psychiatric issues, was denied the use of his CPAP machine incarcerated at Albany County C.F. and unable to timely and psychotropic medications for his mental disorder. Id. comply with the Court's directive to execute the pleading. See at 5; Am. Compl. at 145-46. As a result, he suffered sleep id. at 135. deprivation and hallucinations. Am. Compl. at 146. On February 6, 2020, Tarver filed an executed copy of the In Kalican v. Dzurenda, 583 Fed. App'x 21, 23 (2d Cir. 2014), Complaint. Dkt. No. 7. the Second Circuit held that a complaint is deemed filed when the Clerk of Court receives it. With respect to an unsigned At this preliminary stage, Plaintiffs allegations are sufficient complaint by a pro se prisoner, the Court reasoned that the to survive.7 The Court recommends that Plaintiffs’ § 1983 pleading should be filed, with directions from the court to “fix Fourth Amendment claims for illegal search, seizure, false any technical errors of legal procedure.” Id. (citing Toliver v. arrest and state law claims against defendants Johnson, John Sullivan Cnty., 841 F.2d 41, 42 (2d Cir. 1988) (holding that Doe #1, John Doe #2, John Doe #3, John Doe #4, John complaint was timely filed where the clerk's office received Doe #5, Jane Doe #1, Jane Doe #2, Sergeant Doe #8, and it prior to the expiration of the limitations period, but did not Officer Mika be permitted to proceed.8 The Court further formally file it on the docket until after granting plaintiff's recommends that Tarver's Fourteenth Amendment excessive in forma pauperis application, at which point the limitations force claims and state law negligent infliction of emotional period had run)). distress claim against Officers Iannacito, John Doe #10, and “[E]quitable tolling is considered appropriate where [...] John Doe #11 also be permitted to proceed.9 The Court a plaintiff was unaware of his cause of action due to expresses no opinion as to whether these claims can withstand misleading conduct of the defendant or where a plaintiff's a properly filed dispositive motion.10 7 In determining when a particular claim accrues, Fourteenth Amendment excessive force and failure-to-protect courts must focus on when “the plaintiff knows or claims against Burns and Remillard survived initial review has reason to know the injury which is the basis and required a response. Dkt. No. 24 at 24. As discussed of his action.” Covington v. New York, 171 F.3d supra, the Court recommended the assault and battery claims 117, 121 (2d Cir. 1999) (quoting Singleton v. City be deemed time-barred. Id. at 25. In the November Order, the District Court adopted the recommendations. Dkt. No. 32 at 4. of New York, 632 F.2d 185, 191 (2d Cir. 1980)). That is so even if “the full extent of the injury is not In the Amended Complaint, Tarver claims that two then known or predictable.” Fahs Const. Group, additional corrections officers were involved in the alleged Inc. v. Gray, 725 F.3d 289, 292 (2d Cir. 2013) (per “shakedown” of Tarver's cell and the use of force on March curiam). Thus, Tarver's alternative argument; that 13, 2018. See Am. Compl. at 217-18. the statutory period for claims arising in December 2016 was tolled because he was not aware of the full extent of his injuries until “well over six *9 Mindful of the Second Circuit's instruction that a pro se plaintiff's pleadings must be liberally construed, Sealed months into his stay at Albany County C.F.,” see Plaintiff, 537 F.3d at 191, the Court finds that Tarver's § Am. Compl. at 10, lacks merit. 1983 Fourteenth Amendment excessive force and failure-to- 8 See Footnote 4, supra. protect claims against Durocher and Haley survive review and require a response. The Court expresses no opinion 9 See Footnote 4, supra. as to whether these claims can withstand a properly filed 10 This preliminary finding does not preclude dispositive motion. However, for the reasons set forth supra, it is recommended that the assault and battery claims be Defendants from filing motions related to the dismissed. issue of timeliness. See Guillory v. Ellis, No. 9:11-CV-600 (MAD/ATB), 2013 WL 2145658, at *6 (N.D.N.Y. May 15, 2013) (citing Snider v. Melindez, 199 F.3d 108, 113 (2d Cir. 1999)). 2. First Amendment Retaliation Claims A different conclusion is reached however, with respect to The law related to retaliation claims was discussed in the Oct. Tarver's assault and battery claims. These claims accrued on Report-Rec. and will not be restated herein. See Dkt. No. 24 at December 14, 2016, and are subject to a one-year statute of 25-27. In the November Order, the Court dismissed Tarver's limitations. Even affording Tarver the benefit of equitable retaliation claims against Burns and Remillard reasoning: tolling, the claims are well outside the applicable statute of limitations. Accordingly, Tarver's state law assault and battery claims against Iannacito, John Doe #10, and John Doe #11 Here, Tarver has not adequately stated are time barred and, thus, it is recommended that the claims a claim for retaliation against Burns be dismissed. and Remillard because he has not alleged facts to suggest that they B. Claims Against Burns, Remillard, Durocher, and were aware Tarver received a letter Haley11 from Prisoner Legal Services or that LaPietra filed a lawsuit in state court. 11 The Court assumes, for purposes of this Report- Moreover, there is no allegation that Recommendation and Order only, that Tarver was Burns or Remillard were defendants in a pretrial detainee at the time of the alleged events that lawsuit. giving rise to his claims. Dkt. No. 24 at 27. 1. Fourteenth Amendment Claims Although Tarver was given an opportunity to cure the defects against Tarver. Accordingly, for the reasons set forth in the have behaved in an objectively reckless manner, or “knew, or Oct. Report-Rec., it is recommended that Tarver's retaliation should have known, that the condition posed an excessive risk claims be dismissed for failure to state a claim upon which to health or safety.” Darnell, 8949 F.3d at 35. “Although mens relief may be granted. rea is assessed from an objective perspective, as opposed to the more demanding subjective recklessness standard employed in the Eighth Amendment context, negligence is C. Fourteenth Amendment Deliberate Medical still insufficient to give rise to a valid claim under the Indifference Claims Fourteenth Amendment.” Smith v. Outlaw, No. 15-CV-9961, In the November Order, the Court adopted the 2017 WL 4417699, at *3 (S.D.N.Y. Sept. 30, 2017) (internal recommendation that the constitutional claims related to citation omitted). “Non-medical prison personnel engage Tarver's medical treatment against “Unknown Medical and in deliberate indifference where they ‘intentionally delayed Dental Workers” be dismissed due to the failure to identify access to medical care when the inmate was in extreme pain any individuals personally involved. Dkt. No. 24 at 29-30; and has made his medical problem known to the attendant Dkt. No. 32 at 4. prison personnel.’ ” Baumann v. Walsh, 36 F.Supp.2d 508, 512 (N.D.N.Y. 1999). In the Amended Complaint, Tarver identified Dr. Masaba, Dr. Voss, Nurse Paulino, C.O. Criscione, C.O. “505,” and Nurse *10 The Amended Complaint lacks any allegations Jane Doe as defendants in the caption of the pleading. Am. plausibly suggesting that Defendants knew that Tarver Compl. at 1. Initially, the Court notes that Dr. Masaba, Dr. suffered from a serious medical condition. Moreover, Tarver Voss, Nurse Paulino, and Nurse Jane Doe are not referenced has not plead that he told Defendants he was in extreme anywhere in the body of the Amended Complaint. In the pain or that Defendants, as non-medical personnel, withheld absence of factual allegations sufficient to plausibly suggest medical care or delayed treatment. Accordingly, the Court that these defendants were personally involved in conduct recommends that Tarver's Fourteenth Amendment deliberate that violated plaintiffs’ constitutional rights, the Amended medical indifference claims against C.O. Criscione and C.O. Complaint fails to state a cognizable claim against them. See “505” be dismissed. Cipriani v. Buffardi, No. 06–CV–0889 (GTS/DRH), 2007 WL 607341, *1 (N.D.N.Y. Feb. 20, 2007) (“Dismissal is appropriate where a defendant is listed in the caption, but the D. ADA body of the complaint fails to indicate what the defendant The law related to ADA claims was discussed in the Oct. did to the plaintiff.”) (citation omitted); see also Casino v. Report-Rec. and will not be restated herein. See Dkt. No. Rohl, No. 14-CV-2175, 2014 WL 5425501, at *6 (E.D.N.Y. 24 at 27-29. In the Oct. Report-Rec., the Court noted Oct. 23, 2014) (dismissing complaint since the plaintiff had that it was “not clearly indicated” who Tarver was suing not adequately pled the defendant's personal involvement in for ADA violations or whether the defendants were sued any of the constitutional deprivations alleged in the amended in their individual or official capacities, or both. Id. at complaint). 28. The Court noted that the ADA did not provide for claims for monetary damages against individual officers and With respect to C.O. Criscione and C.O. “505”, Tarver alleges recommended dismissing claims for monetary relief against that Criscione was deliberately indifferent to his shoulder the officers, in their official capacity, for failure to plead injury and that C.O. “505” was deliberately indifferent to his discriminatory intent. Id. at 28-29. Moreover, the Court found dental needs. See Am. Compl. at 135, 195. that any claim for injunctive relief was rendered moot by Tarver's release from confinement. Id. at 29. The District Under the Fourteenth Amendment, deliberate indifference is Court adopted this reasoning in the November Order. See Dkt. measured from an objective perspective. Darnell v. Pineiro, No. 32. 849 F.3d 17, 35 (2d Cir. 2017). While the second prong now varies from Eighth Amendment cases, the first prong Despite the fact that Tarver was afforded the opportunity remains the same. See White v. City of New York, No. 16 Civ. to amend his Complaint, the amended pleading does not 6183, 2017 WL 3575700, at *3 (S.D.N.Y. Aug. 17, 2017) cure the deficiencies in the original pleading related to these (“The objective prong is the same regardless of whether the claims. For the reasons set forth in the Oct. Report-Rec., it is to state a claim upon which relief may be granted. the Court.” Dkt. No. 24 at 34, n. 15. Because the amended pleading “supercedes the original, and renders it of no legal effect[,]” Dluhos v. Floating & Abandoned Vessel, Known E. Monell Claims Against Albany County as New York, 162 F.3d 63, 68 (2d Cir. 1998), the Court In the November Order, the Court dismissed Tarver's Monell recommends dismissing LaPietra's First Amendment Monell claims against Albany County. In the Oct. Report-Rec., the claim against Albany County. Court reasoned that: Plaintiffs have failed to identify or allege any facts F. Remaining Claims plausibly showing the existence of a municipal policy *11 In the Amended Complaint, Tarver restates the or custom of Albany County authorizing, permitting, following causes of action: (1) First Amendment claims allowing, or tolerating “abuses in violation of the related to mail tampering; (2) Fourteenth Amendment due Constitution” including deliberate medical indifference process claims related to charges stemming from the March and excessive force incidents or any affirmative link 2018 use of force incident; (3) Sixth Amendment right between such a policy and any defendants’ alleged actions to counsel claims; (4) constitutional claims related to lack with regard to Tarver. of access to grievance procedures; and (5) Fourteenth Amendment equal protection claims. In the Oct. Report-Rec., Dkt. No. 24 at 22. The Court further noted that “conclusory the Court recommended that these claims be dismissed due to allegations that Albany County failed to train and supervise Tarver's failure to identify any corrections officers personally defendants, see id., without supporting factual allegations, involved in these claims. Dkt. No. 24 at 30. In the November fails to state a Monell claim against Albany County that is Order, the Court adopted the recommendations. Dkt. No. 32. plausible on its face.” Id. Despite the fact that Tarver was afforded the opportunity Although Tarver was given an opportunity to cure the to amend his Complaint, the amended pleading does not defects in his Monell claims against Albany County, the cure the deficiencies in the original pleading related to these Amended Complaint is devoid of any additional facts to claims. For the reasons set forth in the Oct. Report-Rec., it state a plausible claim against Albany County. Therefore, the is recommended that these claims be dismissed for failure to Court recommends dismissing Tarver's Monell claims against Albany County. state a claim upon which relief may be granted.12 In the November Order, the Court found that LaPietra's First 12 Even assuming Tarver's claim related to access Amendment Monell claims against Albany County survived to the grievance procedure was sufficiently initial review and required a response. See Dkt. No. 32. at plead, the undersigned recommends dismissal 4. These claims are not repeated or restated in the Amended because inmates do not have a protected interest Complaint. The Court has thoroughly reviewed the amended in grievance procedures. “[I]nmate grievance pleading and finds no allegations related to LaPietra's First programs created by state law are not required by Amendment religious claim or any facts from which the the Constitution and consequently allegations that Court could find that LaPietra's First Amendment rights were prison officials violated those procedures do [ ] not compromised. While courts have noted that it is “sometimes give rise to a cognizable § 1983 claim.” Shell v. difficult” to determine whether a pro se plaintiff intends to Brzezniak, 365 F.Supp.2d 362, 369–370 (W.D.N.Y. abandon legal theories and whether to treat claims as “having 2005). been incorporated into the Amended Complaint,” Pagan v. In the Oct. Report-Rec., the Court discussed Rule 10(a) of the New York State Div. of Parole, No. 98 CIV. 5840, 2002 WL Federal Rules of Civil Procedure and advised 398682, at *4 (S.D.N.Y. Mar. 13, 2002) (citations omitted), the Court is not confronted with that issue. Here, Plaintiffs were explicitly cautioned that if they chose to file an amended pleading, “[a]ny such amended complaint will replace the ... the Court will not construe the existing Complaint, and must be a whole integrated and complaint to include any claims complete pleading that does not rely upon or incorporate by or causes of action against these the Court will not construe the Doe #8, and Officer Mika; (2) Tarver's Fourth Amendment complaint to include any claims or false arrest and imprisonment claims, and related state law causes of action against other private claims against defendants Officers Johnson, John Doe #1, individuals referenced in the body of John Doe #2, John Doe #3, John Doe #4, John Doe #5, the complaint, including attorneys and Jane Doe #1, Jane Doe #2, Sergeant Doe #8, and Mika; (3) grocery store employees, as they are Tarver's Fourteenth Amendment excessive force claims and not identified as defendants in the state law negligent infliction of emotional distress claims caption of the complaint or list of against Officers Iannacito, John Doe #10, and John Doe #11; parties. and (4) Tarver's Fourteenth Amendment excessive force and failure-to-protect claims against Burns, Remillard, Durocher, and Haley; and it is further Dkt. No. 24 at 31, n.13. *12 RECOMMENDED that the remaining claims be The Amended Complaint contains facts and allegations DISMISSED WITHOUT PREJUDICE pursuant to 28 related to Tarver's confinement at Downstate Correctional U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b) for failure Facility and Mohawk Correctional Facility. See Am. Compl. to state a claim upon which relief may be granted; and it is at 3-4, 136-43. Tarver alleges that he was “denied medical further and dental care” at Downstate C.F. and Mohawk C.F. and that he was harassed and threatened by “C.O. Goodiemonte” and RECOMMENDED that, if the Court adopts this Report- “C.O. Fitsick”. Id. Recommendation and Order, that the following defendants be terminated from the docket report: Peterson, John Doe #6, For the reasons set forth in the Oct. Report-Rec., the Court John Doe #7, John Doe #9, C.O. 505, Criscione, Dr. Masaba, will not construe the Amended Complaint to include any Dr. Voss, Nurse Paulino, Nurse Jane Doe #3, and Albany claims related to defendants not identified in the caption of County; and it is further the pleading of the list of parties. RECOMMENDED that if the Court adopts this Report- Recommendation and Order, that, upon receipt from Plaintiffs V. CONCLUSION of the documents for service, the Clerk shall issue summonses WHEREFORE, it is hereby and forward them, along with copies of the Amended Complaint, to the United States Marshal for service upon ORDERED that the Clerk of the Court revise the docket the remaining identified defendants. At that time, the Clerk sheet to ADD the following individuals as defendants in shall also forward a copy of the summonses and Amended this action: Officer Keith Johnson, Officer Peterson, Officer Complaint to the Office of the Albany County Attorney, John Doe #1, Officer John Doe #2, Officer John Doe #3, together with a copy of this Decision and Order; and it is Officer John Doe #4, Officer John Doe #5, Officer John further Doe #6, Officer John Doe #7, Sergeant/Lieutenant Doe #8, Plain Clothes Officer Doe #9, Parole Officer Jane Doe #1, RECOMMENDED that a response to the Amended Parole Officer Jane Doe #2, Officer John Doe #10, Officer Complaint be filed by the remaining defendants, or his/ John Doe #11, Corrections Officer Durocher, Corrections her counsel, as provided for in the Federal Rules of Civil Officer Haley, Corrections Officer “505”, Corrections Officer Procedure; and it is further Criscione, Silver Masaba, MD, Vladislav Voss, D.D.S., NP Anna Paulino, Nurse Jane Doe #3. Officer Jan Mika, and RECOMMENDED that Plaintiffs shall take reasonable Officer Adam Iannacito; and it is further steps through discovery to ascertain the identity of the Doe defendants; and it is further RECOMMENDED that the following claims survive initial review and require a response: (1) LaPietra's Fourth ORDERED that all pleadings, motions and other documents Amendment claims for illegal search and seizure against relating to this action must bear the case number assigned to defendants Johnson, John Doe #2, John Doe #3, John Doe this action and be filed with the Clerk of the United States Federal Building, 100 S. Clinton St., Syracuse, New York the Clerk of the Court. FAILURE TO OBJECT TO 13261-7367. Any paper sent by a party to the Court or THIS REPORT WITHIN FOURTEEN DAYS WILL the Clerk must be accompanied by a certificate showing PRECLUDE APPELLATE REVIEW. Roldan v. Racette, that a true and correct copy of same was served on all 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec'y of Health and opposing parties or their counsel. Any document received Human Svcs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b) by the Clerk or the Court which does not include a proper (1); Fed.R.Civ.P. 72. certificate of service will be stricken from the docket. Plaintiffs must comply with any requests by the Clerk's Office 13 If you are proceeding pro se and are served with this for any documents that are necessary to maintain this action. Order and Report-Recommendation by mail, three All parties must comply with Local Rule 7.1 of the Northern additional days will be added to the fourteen-day District of New York in filing motions. Plaintiffs are also period, meaning that you have seventeen days from required to promptly notify the Clerk's Office and all the date the Order and Report-Recommendation parties or their counsel, in writing, of any change in his was mailed to you to serve and file objections. Fed. or her address; their failure to do so may result in the R. Civ. P. 6(d). If the last day of that prescribed dismissal of the action; and it is further period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the ORDERED that the Clerk of the Court shall serve a copy of next day that is not a Saturday, Sunday, or legal this Report-Recommendation and Order on Plaintiffs, along holiday. Fed. R. Civ. P. 6(a)(1)(c). with copies of the unpublished decisions cited herein in *13 IT IS SO ORDERED. accordance with the Second Circuit's decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam). All Citations Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to Not Reported in Fed. Supp., 2021 WL 1345520 End of Document © 2024 Thomson Reuters. No claim to original U.S. Government Works.