Rivera v. Annucci

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK WILLIAM RIVERA, Plaintiff, 22-CV-4787 (LTS) -against- BONILLA NYS DIN# 98-A-7337; SUPT. ORDER OF DISMISSAL MICHAEL CAPRA, SING SING CF, Defendants. LAURA TAYLOR SWAIN, Chief United States District Judge: Plaintiff, who is incarcerated at Groveland Correctional Facility, is proceeding pro se and in forma pauperis (IFP). Plaintiff filed this complaint under 42 U.S.C. § 1983, alleging that on August 28, 2016, while he was incarcerated at Sing Sing Correctional Facility, the “NYS Dept. of Corrections failed to protect [him] as stated in NYS DOCCS Rules, and [he] sustained injuries due to that.” (ECF No. 1 at 6.) By order dated August 15, 2022, the Court dismissed without prejudice Plaintiff’s claims against New York State Department of Corrections and Community Supervision Acting Commissioner Anthony Annucci because Plaintiff did not allege any facts showing that Defendant Annucci was personally involved in the events underlying Plaintiff’s claims. (ECF No. 10.) The Court also directed Plaintiff to amend his complaint to state a failure to protect claim and to state why his claim should not be dismissed as time barred. (Id.) Plaintiff filed an amended complaint on September 14, 2022, (ECF No. 11), and the Court has reviewed it. The action is dismissed for the reasons set forth below. STANDARD OF REVIEW The Court must dismiss a complaint, or portion thereof, that is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b); see Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007). The Court must also dismiss a complaint when the Court lacks subject matter jurisdiction. See Fed. R. Civ. P. 12(h)(3). While the law mandates dismissal on any of these grounds, the Court is obliged to construe pro se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret

them to raise the “strongest [claims] that they suggest,” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal quotation marks and citations omitted) (emphasis in original). But the “special solicitude” in pro se cases, id. at 475 (citation omitted), has its limits – to state a claim, pro se pleadings still must comply with Rule 8 of the Federal Rules of Civil Procedure, which requires a complaint to make a short and plain statement showing that the pleader is entitled to relief. Rule 8 requires a complaint to include enough facts to state a claim for relief “that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible if the plaintiff pleads enough factual detail to allow the Court to draw the inference that the defendant is liable for the alleged misconduct. In reviewing the complaint, the Court must

accept all well-pleaded factual allegations as true. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). But it does not have to accept as true “[t]hreadbare recitals of the elements of a cause of action,” which are essentially just legal conclusions. Twombly, 550 U.S. at 555. After separating legal conclusions from well-pleaded factual allegations, the Court must determine whether those facts make it plausible – not merely possible – that the pleader is entitled to relief. Id. BACKGROUND In his amended complaint, Plaintiff names: 1) Bonilla, who Plaintiff alleges assaulted him on August 28, 2016; and 2) Michael Capra, who is the Superintendent of Sing Sing Correctional Facility. Plaintiff alleges the same facts as alleged in his original pleading, and he attaches to his amended complaint a document titled, “Felony Complaint,” wherein Plaintiff purports to bring criminal charges against Defendant Bonilla. Plaintiff does not address the timeliness of his claim in his amended complaint. DISCUSSION A. Personal Involvement To state a claim under 42 U.S.C. § 1983, a plaintiff must allege facts showing the defendant’s direct and personal involvement in the alleged constitutional deprivation. See

Spavone v. N.Y. State Dep’t of Corr. Serv., 719 F.3d 127, 135 (2d Cir. 2013) (“It is well settled in this Circuit that personal involvement of defendants in the alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.”) (internal quotation marks omitted). A defendant may not be held liable under Section 1983 solely because that defendant employs or supervises a person who violated the plaintiff’s rights. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (“Government officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior.”). Rather, “[t]o hold a state official liable under § 1983, a plaintiff must plead and prove the elements of the underlying constitutional violation directly against the official . . ..” Tangreti v. Bachmann, 983 F.3d 609, 620 (2d Cir.

2020). Plaintiff does not allege any facts showing that Superintendent Capra was personally involved in the events underlying his claim. Plaintiff’s claim against Superintendent Michael Capra is therefore dismissed for failure to state a claim. See 28 U.S.C. § 1915(e)(2)(B)(ii). B. Private Defendant and Private Prosecution Plaintiff’s claim against Defendant Bonilla must also be dismissed. A claim for relief under Section 1983 must allege facts showing that each defendant acted under the color of a state “statute, ordinance, regulation, custom or usage.” 42 U.S.C. § 1983. Private parties therefore generally are not liable under the statute. Sykes v. Bank of America, 723 F.3d 399, 406 (2d Cir. 2013) (citing Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295 (2001)); see also Ciambriello v. Cnty. of Nassau, 292 F.3d 307, 323 (2d Cir. 2002) (“[T]he United States Constitution regulates only the Government, not private parties.”). As Defendant Bonilla is a private party who is not alleged to work for any state or other government body,

Plaintiff has not stated a claim against this Defendant under Section 1983. Moreover, Plaintiff cannot initiate the arrest and prosecution of an individual in this Court because “the decision to prosecute is solely within the discretion of the prosecutor.” Leeke v.Timmerman, 454 U.S. 83, 87 (1981). Nor can Plaintiff direct prosecuting attorneys to initiate a criminal proceeding against Defendant, because prosecutors possess discretionary authority to bring criminal actions, and they are “immune from control or interference by citizen or court.” Conn. Action Now, Inc. v. Roberts Plating Co., 457 F.2d 81, 87 (2d Cir. 1972). Accordingly, the Court dismisses Plaintiff’s attempt to bring criminal charges against Defendant Bonilla for failure to state a claim. See 28 U.S.C § 1915(e)(2)(B)(ii). C. Failure-to-Protect Claim Because Plaintiff was a convicted prisoner at the time that he alleges his claim arose, the

Court evaluates this claim under the Cruel and Unusual Punishment Clause of the Eighth Amendment. See Bell v. Wolfish, 441 U.S. 520, 536 n.16 (1979); Weyant v. Okst, 101 F.3d 845, 856 (2d Cir. 1996). The failure to protect a prisoner constitutes cruel and unusual punishment when prison officials exhibit “deliberate indifference” to a substantial risk of serious harm to the inmate. Farmer v. Brennan, 511 U.S. 825, 834 (1994); Morales v. N.Y. State Dep’t of Corr., 842 F.2d 27, 30 (2d Cir. 1988). To state such a claim, a plaintiff must allege that a correction official was deliberately indifferent to a substantial risk of serious harm to the Plaintiff. See Farmer, 511 U.S. at 828; Helling v. McKinney, 509 U.S. 25, 32 (1993); Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir. 2017). Specifically, a convicted prisoner must show that a correction official “kn[ew] of and disregard[ed] an excessive risk to inmate health or safety; the official must both [have been] aware of facts from which the inference could [have been] drawn that a substantial risk of serious harm exists, and he must [have] also draw[n] the inference.” Farmer, 511 U.S. at 837.

Plaintiff’s amended complaint fails to cure the deficiencies in his original pleading. Plaintiff again does not allege facts suggesting that prison officials knew that Defendant Bonilla posed a serious risk of harm to Plaintiff and that the prison officials disregarded that risk. Plaintiff thus does not state a failure-to-protect claim. D. Statute of Limitations Plaintiff’s amended complaint does not address why his claim should not be dismissed as time barred, and he does not include any facts showing that the Court should apply the doctrine of equitable tolling. Plaintiff alleges that the events giving rise to his claim occurred on August 28, 2016, and he filed his complaint on May 9, 2022, approximately five years and eight months later. The statute of limitations for Section 1983 claims is found in the “general or residual [state] statute

[of limitations] for personal injury actions.” Pearl v. City of Long Beach, 296 F.3d 76, 79 (2d Cir. 2002) (quoting Owens v. Okure, 488 U.S. 235, 249-50 (1989)). In New York, that period is three years. See N.Y. C.P.L.R. § 214(5). Section 1983 claims generally accrue when a plaintiff knows or has reason to know of the injury that is the basis of the claim. Hogan v. Fischer, 738 F.3d 509, 518 (2d Cir. 2013). Because Plaintiff filed his complaint more than three years after August 28, 2016, and he does not allege facts suggesting that the statute of limitations should be equitably tolled in this case, his complaint is dismissed as time barred. District courts generally grant a pro se plaintiff leave to amend a complaint to cure its defects but leave to amend may be denied if the plaintiff has already been given an opportunity to amend but has failed to cure the complaint’s deficiencies. See Ruotolo v. City of New York, 514 F.3d 184, 191 (2d Cir. 2008); Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988). Plaintiff

had been given such an opportunity and, because the defects in Plaintiff’s amended complaint cannot be cured with a further amendment, the Court declines to grant Plaintiff another opportunity to amend. CONCLUSION Plaintiff’s complaint, filed IFP under 28 U.S.C. § 1915(a)(1), is dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), and as time barred. The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith, and therefore status is denied for the purpose of an appeal. Cf. Coppedge v. United States, 369 U.S. 438, 444-45 (1962) (holding that an appellant demonstrates good faith when he seeks review of a nonfrivolous issue).

The Clerk of Court is directed to enter judgment in this case. SO ORDERED. Dated: October 24, 2022 New York, New York /s/ Laura Taylor Swain LAURA TAYLOR SWAIN Chief United States District Judge