Perez Olivo v. New York State Department of Corrections and Community Supervision et al, No. 9:2017cv00357 - Document 8 (N.D.N.Y 2017)
Court Description: DECISION AND ORDER: ORDERED that plaintiff's IFP Application (Dkt. No. 2 ) is GRANTED. ORDERED that the following claims are DISMISSED with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b) as barred by the Eleventh Amendment: (1) all claims against the New York State Department of Corrections and Community Supervision and (2) the claims for monetary damages against defendants Annucci and Graham in their official capacities. ORDERED that the New York State Department of Corrections and Community Supervision is DISMISSED as a defendant. ORDERED that if plaintiff wishes to proceed with this action, he must file an amended complaint as directed above within thirty (30) days from filing date of thi s Decision and Order. ORDERED that, if plaintiff timely files an amended complaint, this matter be returned to the Court for further review. ORDERED that if plaintiff fails to timely file an amended complaint as directed above, the Clerk shall en ter judgment indicating that this action is DISMISSED without prejudice without further order of this Court pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b) for failure to state a claim upon which relief may be granted. In th at event, the Clerk is directed to close this case. Signed by Judge Brenda K. Sannes on 6/20/17. ( Notice of Compliance Deadline 7/20/2017, Case Review Deadline 8/21/2017) (Attachments: # 1 Unpublished Decision Cited) (served as directed)(alh, )
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Perez Olivo v. New York State Department of Corrections and Community Supervision et al Doc. 8 Att. 1 Dawkins v. State, Not Reported in F.Supp. (1996) 1996 WL 156764 1996 WL 156764 Only the Westlaw citation is currently available. United States District Court, N.D. New York. Because I find that the Eleventh Amendment provides immunity for some defendants on some claims, I grant in part and deny in part, defendants' motion for summary judgment. Emon DAWKINS, Plaintiff, v. The STATE OF NEW YORK, Trooper Antone R. Irwin of the New York State Police and The New York State Police Department, Defendants. DISCUSSION No. 93-CV-1298 (RSP/GJD). | March 28, 1996. Attorneys and Law Firms Emon Dawkins, Liverpool, New York, Plaintiff, Pro Se. Dennis C. Vacco, Attorney General of the State of New York, Syracuse, New York, for Defendants; G. Robert McAllister, Assistant Attorney General, of counsel. MEMORANDUM, DECISION AND ORDER POOLER, District Judge. INTRODUCTION *1 On June 13, 1992, defendant New York State police officer Antone R. Irwin (“Trooper Irwin”) stopped and ticketed plaintiff Emon Dawkins for speeding on the New York State Thruway. Dawkins pled not guilty and elected trial in the Town Court of Dewitt, New York. When Dawkins appeared for trial, he received an additional ticket 1 for driving an unregistered vehicle. The Town Court found Dawkins not guilty of both charges. Dawkins then filed this lawsuit claiming that Trooper Irwin (1) stopped him without probable cause and on racial grounds, and (2) issued the unregistered vehicle citation in retaliation for electing trial on the speeding charge. Dawkins alleges that his Fourth, Sixth, Eighth, and Fourteenth Amendment rights have been violated and seeks redress under 42 U.S.C. §§ 1983 and 1985. Defendants all move for summary judgment pursuant to Fed. R. Civ. P. 56, arguing that Dawkins' claims are barred by the Eleventh Amendment to the United States Constitution. I. Summary Judgment Standard Summary judgment is granted when viewing the evidence in a light most favorable to the nonmovant, the court determines that there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451, 456 (1992). A party seeking summary judgment must demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant satisfies this initial burden, then the burden shifts to the nonmovant to proffer evidence demonstrating that a trial is required because a disputed issue of fact exists. Weg v. Macchiarola, 995 F.2d 15, 18 (2d Cir. 1993). The nonmovant must do more than present evidence that is merely colorable, conclusory, or speculative and must present “concrete evidence from which a reasonable juror could return a verdict in his favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). In short, the nonmovant must demonstrate to the court that issues of fact exist that must be decided by a factfinder, because “they may reasonably be decided in favor of either party.” Thompson v. Gjivoje, 896 F.2d 716, 720 (2nd Cir. 1990). II. Pro Se Plaintiff Because Dawkins is a pro se plaintiff, his complaint must be construed liberally and should be dismissed only “if it appears beyond doubt that [he] can prove no set of facts in support of his claim which would entitle him to relief.” Estelle v. Gamble, 429 U.S. 97, 106 (1976) (quotations omitted). III. Defendants New York State and the New York State Police Department It is well settled that “[a]bsent a waiver on the part of the state, or a valid congressional override, the eleventh amendment prohibits federal courts from entertaining suits by private parties against the states.” Farid v. Smith, 850 F.2d 917, 920-21 (2d Cir. 1988) (citing Kentucky v. © 2017 Thomson Reuters. No claim to original U.S. Government Works. 1 Dockets.Justia.com Dawkins v. State, Not Reported in F.Supp. (1996) 1996 WL 156764 Graham, 473 U.S. 159 (1985)). When Congress enacted Sections 1983 and 1985, it did not abrogate the state's Eleventh Amendment immunity. United States v. City of Yonkers, 880 F. Supp 212, 231 (S.D.N.Y. 1995) (citing Quern v. Jordan, 440 U.S. 332 (1979). Because New York State has Eleventh Amendment immunity from suit, Dawkins' claims against defendant New York State are dismissed. *2 It is equally well established that the “Eleventh Amendment's containment of federal judicial power is not restricted to actions where the state is a named defendant, but extends further to those actions where liability, if imposed, must be paid from the state fisc.” New York City Health & Hosp. Corp. v. Perales, 50 F.3d 129, 134 (2d Cir. 1995). For Eleventh Amendment purposes, governmental entities of a state that are considered “arms of the state” receive Eleventh Amendment immunity. Will v. Michigan Dep't of Police, 491 U.S. 58, 70 (1989). Because defendant New York State Police Department is a division of the executive department of New York State, Dawkins claims against the department are dismissed. See N.Y.Exec.Law § 210 (McKinney 1993); Komlosi v. New York State OMRDD, 64 F.3d 810 (2d Cir. 1995) (holding that OMRDD is an arm of the state and thus cannot be sued under §1983); see also Oliver Schools, Inc. v. Foley, 930 F.2d 248, 252 (2d Cir. 1991). Moreover, New York State and the New York State Police Department are not “person[s]” within the meaning of Sections 1983 and 1985. See Howlett v. Rose, 496 U.S. 356, 365 (1990); see also, Thompson v. State of New York, 487 F. Supp. 212, 228 (N.D.N.Y. 1979, Munson, J.) (holding that the State of New York and the New York State Police Department are not “persons” for purposes of the threshold requirement of a cause of action under § 1985). Because defendants New York State and the New York State Police Department (1) have not consented either expressly or impliedly to permit this suit to proceed in federal court and (2) are not “persons” within the meaning of the relevant statutes, I dismiss the claims against these two defendants. 2 IV. Defendant Antone R. Irwin A. Section 1985 Section 1985(3) makes it illegal “[i]f two or more persons ... conspire ... for the purposes of depriving .. any person or class of persons of the equal protection of the laws.” 42 U.S.C. § 1985(3). Trooper Irwin is the only person named or mentioned in Dawkins' complaint. Because Dawkins fails to offer any support for his claim that two or more persons conspired to deny him his rights, I must dismiss his Section 1985 claim against Trooper Irwin. B. Section 1983 A Section 1983 claim requires that Dawkins prove that (1) Trooper Irwin deprived him of a federal right and (2) Trooper Irwin acted under color of state law. Gomez v. Toledo, 446 U.S. 635, 640 (1980). In his motion for summary judgment, Trooper Irwin spends great energy arguing that a cause of action alleging only that, “harm from official capacity acts is barred by the Eleventh Amendment.” McAllister Aff., at ¶ 5. Trooper Irwin is only partially correct. A suit against Trooper Irwin in his official capacity, is a suit against the state and he is “entitled to invoke the Eleventh Amendment immunity belonging to the state.” Ying Jing Gan v. City of New York, 996 F.2d 522, 529 (2d Cir. 1993). Therefore, Dawkins' Section 1983 claim made against Trooper Irwin in his official capacity is dismissed. *3 However, a claim against Trooper Irwin in his individual capacity, even when performing official acts, is not afforded Eleventh Amendment protection. Id. 3 Although Dawkins' complaint is silent concerning the capacity in which he sues Trooper Irwin, his failure to specify the capacity does not justify an outright dismissal of his claim. Oliver Schools, 930 F.2d at 252; see also Kentucky, 473 U.S. at 167 n. 14, (1985) (indicating that “in many cases the complaint will not clearly specify whether officials are sued personally, in their official capacity, or both” and “[t]he course of proceedings ... will indicate the nature of the liability sought to be imposed.” (citations and internal quotations omitted)). 4 During oral argument Dawkins stated that his claims against Trooper Irwin are in both his individual and official capacity. Therefore, I accept that Dawkins intends to proceed against Trooper Irwin in his individual capacity and find that the Eleventh Amendment does not protect Trooper Irwin from Dawkins' individual capacity © 2017 Thomson Reuters. No claim to original U.S. Government Works. 2 Dawkins v. State, Not Reported in F.Supp. (1996) 1996 WL 156764 claims. Farid, 850 F.2d at 921 (2d Cir. 1988) (holding that “[t]he eleventh amendment bars recovery against an employee who is sued in his official capacity, but does not protect him from personal liability if he is sued in his ‘individual’ or ‘personal’ capacity.”(quoting Kentucky, 473 U.S. at 166-67)). Defendants' reliance on Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89 (1984), is misplaced. Pennhurst stands for the proposition that the Eleventh Amendment prohibits federal courts from ordering state officials to conform their conduct to state law. Id. at 121 (holding that “a claim that state officials violated state law in carrying out their official responsibilities is a claim against the State that is protected by the Eleventh Amendment.”). Pennhurst bars state claims against state officials in their official capacities. Dawkins claims that his federal constitutional rights were violated by a state employee acting under color of state law in his individual capacity. Pennhurst is not applicable. See Farid, 850 F.2d at 921 (holding that “the [Supreme Court] has consistently held that the eleventh amendment does not protect state officials from personal liability when their actions violate federal law, even though state law purports to require such actions.”). Dawkins' Section 1983 claim against Trooper Irwin in his individual capacity is not barred by the Eleventh Amendment. 2. Qualified Immunity Trooper Irwin also argues that “without a showing of a violation of a clearly established right and affirmative proof of some ultra vires conduct ... an individual capacity action cannot be maintained.” Def.'s Mem. at 6. Although Irwin makes this statement in support of his Eleventh Amendment argument, it could also be read as a claim of qualified immunity. The doctrine of qualified immunity protects public employees in their individual capacities. Hafer, 502 U.S. at 31. Qualified immunity “shields government officials from liability for damages on account of their performance of discretionary official functions insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Rodriguez v. Phillips, 66 F.3d 470, 475 (2d Cir 1995) (citations and internal quotations omitted). The standard governing the use of a qualified immunity defense “has evolved into one of objective reasonableness, designed to ‘permit the resolution of many insubstantial claims on summary judgment.”’ Robison v. Via, 821 F.2d 913, 920 (2d Cir. 1987) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). *4 However, qualified immunity is an affirmative defense which the individual defendant must plead. The Supreme Court has held that there is “no basis for imposing on the plaintiff an obligation to anticipate such a defense by stating in his complaint that the defendant acted in bad faith.” Gomez, 446 U.S. at 640. Rather, “[i]t is for the official to claim that his conduct was justified by an objectively reasonable belief that it was lawful.” Id. Even if I read Trooper Irwin's answer liberally to include a qualified immunity defense, he fails in this motion to establish that “it was objectively reasonable for [him] to believe that his acts did not violate [Dawkins] rights.” Robison, 821 F.2d at 921 (2d Cir. 1987). 5 According to Dawkins he was (1) stopped by officer Irwin while driving at a legal rate of speed, (2) asked to produce his drivers license, vehicle registration, thruway toll card and proof of insurance, (3) ticketed for speeding, and (4) advised, but not ticketed, for an expired vehicle registration. Trooper Irwin had possession of the documents for a total of five minutes. After leaving the scene, Dawkins noticed that the speeding ticket misstated the correct time of day and listed his rate of speed at sixtyeight miles per hour as opposed to Trooper Irwin's oral representation that Dawkins was traveling at fifty-eight miles per hour. At trial, Trooper Irwin issued Dawkins a ticket for driving an unregistered vehicle. Found innocent on both charges, Dawkins alleges that Trooper Irwin (1) illegally stopped and detained him based on race and without probable cause, and (2) ticketed him for the unregistered vehicle in retaliation for electing trial. Compl. at II(c). In his answer and in his memorandum of law in support of his motion for summary judgment, Trooper Irwin fails to provide any evidence concerning his underlying basis for stopping Dawkins. Nor does he offer any justification for ticketing Dawkins for an unregistered vehicle three months after the initial stop. The record before me does not contain an affidavit or affirmation from Trooper Irwin giving his version of the incident. Moreover, lacking any evidence to the contrary, I accept as true, Dawkins' © 2017 Thomson Reuters. No claim to original U.S. Government Works. 3 Dawkins v. State, Not Reported in F.Supp. (1996) 1996 WL 156764 statement that he was driving at a legal rate of speed, received a second ticket in retaliation for electing trial, and identity of the government that employs them. By contrast, officers sued in their personal capacity come to court as individuals... the Eleventh Amendment does not erect a barrier against suits to impose individual and personal liability on state officials under § 1983.” Hafer v. Melo, 502 U.S. 21, 27, 31 (1991) (citations and internal quotations omitted). was found innocent of both offenses. 6 Defendant has done nothing to refute Dawkins' claims. Because Trooper Irwin fails to offer any support concerning the objective reasonableness of stopping Dawkins, ticketing him, and then ticketing him again three months after the initial stop, I deny his motion for 4 summary judgment. 7 5 CONCLUSION For the foregoing reasons I (1) GRANT defendants motion for summary judgment on behalf of defendants State of New York State and the New York State Police Department, (2) GRANT defendant Antone R. Irwin's motion for summary judgement with respect to claims as they relate to acts in his official capacity, (3) GRANT defendant Antone R. Irwin's motion for summary judgment with respect to the Section 1985 claim, and (4) DENY defendant Irwin's motion for summary judgement with respect to claims against him in his personal capacity under Section 1983. 6 *5 IT IS SO ORDERED 1 2 3 Defendants contend that Trooper Irwin gave Dawkins the additional ticket at the time of the initial stop. Defs.' Answer at ¶ 2. In his responsive papers, Dawkins requests “declaratory or injunctive relief based on the State of New York policies and statutes of New York Civil Rights Law § 50-a, and Public Office (sic) Law § 89(2) (b) and the use thereof.” Pl.'s Mem. at 2. However, attempts to secure prospective relief requiring state officials to comply with state law, as opposed to federal law, is barred by the Eleventh Amendment. Pennhurst State School and Hosp. v. Halderman, 465 U.S. 89, 103-106 (1984) Therefore, Dawkins' new claim for prospective relief cannot be sustained and is barred by the Eleventh Amendment. “Will itself makes clear that the distinction between official-capacity suits and personal-capacity suits is more than a mere pleading device. State officers sued for damages in their official capacity are not persons for purposes of the suit because they assume the 7 Notwithstanding Dawkins' failure to make clear his intention to state a claim against Trooper Irwin individually, Defendants' memorandum of law acknowledges a cause of action against Trooper Irwin in his individual capacity. Def.'s Mem. at 4. For the purposes of discussing qualified immunity I will read defendants' answer liberally. However, it is not clear from defendants' answer that they have preserved the right to raise a qualified immunity defense. If leave to amend the answer is requested, it might well be granted. See, Satchell v. Dilworth, 745 F.2d 781, 784 (2d Cir. 1984). In his complaint, Dawkins alleges violations to his Fourth, Sixth, Eighth, and Fourteenth Amendment Rights. Because defendants focus their motion for summary judgment on their affirmative defenses, I do not sua sponte consider the merits of Dawkins' claims. However, I note that, “an ordinary traffic stop constitutes a limited seizure within the meaning of the Fourth and Fourteenth Amendments.” U.S. v. Scopo, 19 F.3d 777, 781 (2d Cir. 1994) (quoting U.S. v. Hassan El, 5 F.3d 726, 729 (4th Cir.1993). Accordingly, Trooper Irwin's stop of Dawkins, “must be justified by probable cause or a reasonable suspicion, based on specific and articulable facts, of unlawful conduct.” Id. (citations omitted). Probable cause exist when the police reasonably believe that “an offense has been or is being committed.” Id. (citing United States v. Cruz, 834 F.2d 47, 50 (2d Cir.1987), cert. denied, 484 U.S. 1077 (1988). “When an officer observes a traffic offense-- however minor--he has probable cause to stop the driver of the vehicle.” Id. at 782 (quoting United States v. Cummins, 920 F.2d 498, 500 (8th Cir.1990)). In order to prevail on a qualified immunity defense, the defendant must show either (1) “it was not clear at the time of the official acts that the interest asserted by the plaintiff was protected by a federal statute or the Constitution”; (2) “it was not clear at the time of the acts at issue that an exception did not permit those acts”; or (3) “it was objectively reasonable for [Trooper Irwin] to believe that his acts did not violate [Dawkins'] rights. Robison, 821 F.2d at 920-21. © 2017 Thomson Reuters. No claim to original U.S. Government Works. 4 Dawkins v. State, Not Reported in F.Supp. (1996) 1996 WL 156764 All Citations Not Reported in F.Supp., 1996 WL 156764 End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works. © 2017 Thomson Reuters. No claim to original U.S. Government Works. 5 Austin v. Pappas, Not Reported in F.Supp.2d (2008) 2008 WL 857528 2008 WL 857528 Only the Westlaw citation is currently available. United States District Court, S.D. New York. Richard AUSTIN, Plaintiff, v. Brian PAPPAS, John Does, Yonkers Police Commissioner Charles C. Coles, Westchester County, Defendants. No. 04-CV-7263 (KMK)(LMS). | March 31, 2008. Attorneys and Law Firms Mr. Richard Austin, Stormville, NY, pro se. Rory Carleton McCormick, Esq., Corporation Counsel, City of Yonkers, Yonkers, NY, for Defendants. ORDER ADOPTING REPORT & RECOMMENDATION KENNETH M. KARAS, District Judge. *1 Richard Austin (“Plaintiff”) filed this suit pursuant to 42 U.S .C. § 1983 (“Section 1983”) against Yonkers Police Officer Brian Pappas (“Defendant Pappas”), several John Doe Yonkers Police Officers (“John Doe Defendants”), former Yonkers Police Commissioner Charles C. Cola (“Defendant Cola”) (whose name is misspelled in Plaintiff's Complaint as Charles C. Coles), and Westchester County (collectively, “Defendants”), alleging violations of Plaintiff's civil rights under the First, Fourth, Fifth, Eighth, and Fourteenth Amendments of the United States Constitution, along with various supplemental state law claims. 1 (Compl.¶¶ 17, 19.) Plaintiff alleged that these violations occurred when Defendants failed to protect Plaintiff from Franklyn Kelley, a private individual who physically attacked Plaintiff during the course of Plaintiff's May 16, 2003 arrest. (Id. ¶ 10.) Plaintiff alleged that Defendant Pappas and the John Doe Defendants handcuffed him and pinned him to the ground while Franklyn Kelley repeatedly kicked and punched Plaintiff in the face. (Id. (“The officers did nothing to protect the plaintiff from this vicious assault, even though plaintiff was helpless and in their custody [.]”).) Defendants moved for summary judgment, and this Motion was referred by Judge McMahon to Chief Magistrate Judge Lisa M. Smith for review pursuant to 28 U.S.C. § 636(b)(1). On August 2, 2007, Magistrate Judge Smith issued a thorough Report and Recommendation (“R & R”), concluding that this Court should grant Defendants' Motion for Summary Judgment on the ground that Plaintiff has failed to demonstrate that there exists a genuine issue of material fact as to whether his constitutional rights were violated. Plaintiff was advised of his right to file objections to the R & R, but he did not do so. 1 On August 8, 2005, Plaintiff's claim against Westchester County was dismissed by the Honorable Gerald E. Lynch, to whom this case was initially assigned. On February 28, 2006, the case was transferred to White Plains and reassigned to Judge Colleen McMahon. The case was reassigned to the undersigned on August 6, 2007. A district court reviewing a report and recommendation “ ‘may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.’ “ Donahue v. Global Home Loans & Fin., Inc., No. 05-CV-8362, 2007 WL 831816, at *1 (S.D.N.Y. Mar. 15, 2007) (quoting 28 U.S.C. § 636(b)(1)(C)). Under 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, parties may submit objections to a magistrate judge's report and recommendation. The objections must be “specific” and “written,” and must be made “within 10 days after being served with a copy of the recommended disposition.” Fed.R.Civ.P. 72(b)(2); see also 28 U.S.C. § 636(b)(1). Where a party does not submit an objection, “ ‘a district court need only satisfy itself that there is no clear error on the face of the record.’ “ Donahue, 2007 WL 831816, at *1 (quoting Nelson v. Smith, 618 F.Supp. 1186, 1189 (S.D.N.Y.1985)). In addition, a party's failure to object waives that party's right to challenge the report and recommendation on appeal. See Fed. Deposit Ins. Corp. v. Hillcrest Assocs., 66 F.3d 566, 569 (2d Cir.1995) (“Our rule is that ‘failure to object timely to a magistrate's report operates as a waiver of any further judicial review of the magistrate's decision.’ “ (quoting Small v. Sec'y of Health and Human Servs., 892 F.2d 15, 16 (2d Cir.1989))). © 2017 Thomson Reuters. No claim to original U.S. Government Works. 1 Austin v. Pappas, Not Reported in F.Supp.2d (2008) 2008 WL 857528 *2 Here, Plaintiff has not filed objections to the R & R. Accordingly, the Court has reviewed the R & R for clear error only. In so doing, the Court adopts the conclusion reached in the R & R that Defendants' Motion for Summary Judgment should be granted, but the Court does so in part on different grounds than those relied on in the R & R. First, the Court agrees with Magistrate Judge Smith that Defendants' noncompliance with Local Civil Rule 56.2 should be overlooked because any prejudice resulting from noncompliance was cured by the following: (i) Magistrate Judge Smith advised Plaintiff of the nature of summary judgment during a March 23, 2007 conference; and (ii) Magistrate Judge Smith annexed a Rule 56.2 notice to the R & R, a document to which Plaintiff was free to file objections. See Narumanchi v. Foster, No. 02CV-6553, 2006 WL 2844184, at *2 (E.D.N.Y. Sept. 29, 2006) (refusing to deny defendant's motion for summary judgment based on failure of defendant to comply with Local Civil Rule 56.2 because “[a]ny prejudice to pro se plaintiffs [was] cured” by court's actions). As expressed in the R & R, though Plaintiff did not file any opposition to Defendants' Motion for Summary Judgment, Defendants were still required to meet their burden of demonstrating to the Court that “no material issue of fact remains for trial.” See Amaker v. Foley, 274 F.3d 677, 681 (2d Cir.2001). The Court finds no clear error in Magistrate Judge Smith's determination that Defendants satisfied this burden. With respect to Defendants Pappas and Cola, the Court finds that Plaintiff has failed to offer any evidence demonstrating that they were personally involved in the alleged violation of Plaintiff's constitutional rights. The “ ‘personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.’ “ Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 122 (2d Cir.2004) (quoting McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir.1977)). For purposes of Section 1983 liability, personal involvement can be established by evidence that: ‘(1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference ... by failing to act on information indicating that unconstitutional acts were occurring.’ Id. at 127 (quoting Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.1995)); accord Hayut v. State Univ. of N.Y., 352 F.3d 733, 753 (2d Cir.2003); Schiller v. City of New York, No. 04-CV-7922, 2008 WL 200021, at *4 (S.D.N.Y. Jan. 23, 2008); Fair v.. Weiburg, No. 02CV-9218, 2006 WL 2801999, at *4 (S.D.N.Y. Sept. 28, 2006). Further, a Section 1983 plaintiff must “allege a tangible connection between the acts of the defendant and the injuries suffered.” Bass v. Jackson, 790 F.2d 260, 263 (2d Cir.1986); see also Fair, 2006 WL 2801999, at *4 (citing Bass ). *3 In support of their Motion for Summary Judgment, Defendants submitted evidence that Defendant Pappas did not directly participate in the arrest of Plaintiff, but he instead arrested Plaintiff's accomplice. For example, on April 8, 2004, at a hearing before the Honorable Richard A. Molea of the Westchester County Court, Defendant Pappas testified that he remained with Plaintiff's accomplice while other officers arrested Plaintiff. (Defs.' Affirmation in Supp., Ex. J, 50-51.) Further, in response to interrogatories served on him by Plaintiff, Defendant Pappas stated that he “did not observe what transpired during the course of plaintiff's arrest.” (Id., Ex. L.) Finally, Defendants offer a police report indicating that “Pappas was detaining [Plaintiff's accomplice] in the garage area, as additional units arrived and placed [Plaintiff] into custody.” (Id., Ex. C.) Plaintiff has failed to offer any evidence refuting Defendant Pappas' version of events. In other words, Plaintiff has offered no evidence demonstrating that Defendant Pappas was actually one of the officers who arrested him and allegedly pinned him to the ground while Kelley assaulted him. In fact, during his deposition testimony, Plaintiff admitted that he was not sure whether Defendant Pappas was one of the police officers who © 2017 Thomson Reuters. No claim to original U.S. Government Works. 2 Austin v. Pappas, Not Reported in F.Supp.2d (2008) 2008 WL 857528 arrested him, and that the reason Defendant Pappas was named as a defendant in the present suit was because Plaintiff had seen his name on Plaintiff's felony complaint. (Id., Ex. G, 32-35.) As such, the unrefuted evidence before the Court demonstrates that Defendant Pappas was not one of the officers directly involved in Plaintiff's arrest. Plaintiff therefore has failed to satisfy a prerequisite to liability under Section 1983-namely that Defendant Pappas had personal involvement in the alleged violation of Plaintiff's constitutional rights. See Back, 365 F.3d at 122. Thus, Plaintiff's claim against Defendant Pappas must be dismissed. Plaintiff alleged that Defendant Cola, Yonkers Police Commissioner at the time of Plaintiff's 2003 arrest, violated Plaintiff's constitutional rights by “authoriz[ing], tolerat[ing], as institutionalized practices, and ratif[ying] the misconduct [of Defendant Pappas and John Doe Defendants].” (Compl.¶ 14.) More specifically, Plaintiff charges Defendant Cola with failure to properly: (1) discipline subordinate officers; (2) take adequate precautions in hiring subordinate officers; (3) report criminal acts by police personnel to the Westchester County District Attorney; and (4) establish a system for dealing with complaints about police misconduct. (Id.) Plaintiff does not assert that Defendant Cola directly participated in the violation of his constitutional rights; instead, Plaintiff urges the Court to find Defendant Cola liable under Section 1983 based on his role as supervisor of Defendant Pappas and the John Doe Defendants. “It is well settled, however, that the doctrine of respondeat superior standing alone does not suffice to impose liability for damages under section 1983 on a defendant acting in a supervisory capacity.” See Hayut, 352 F.3d at 753 (citing Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691 (1978)). Instead, it is necessary to establish a supervisory official's personal involvement in the alleged constitutional violation. See id.; Fair, 2006 WL 2801999, at *4. *4 Plaintiff has failed to provide the Court with any evidence from which a reasonable jury could conclude that Defendant Cola was personally involved in the alleged violation of Plaintiff's constitutional rights. Plaintiff has offered no evidence demonstrating that Defendant Cola was aware of and failed to remedy constitutional violations by subordinate officers, or that he acted in a grossly negligent or deliberately indifferent manner in supervising or training subordinate officers. There is also no evidence in the record to support a theory that Defendant Cola created a policy or custom that fostered and led to the alleged violation of Plaintiff's rights. See Hayut, 352 F.3d at 754 (finding as fatal to plaintiff's Section 1983 claim the fact that there existed “no evidence that, after becoming aware of the alleged harassment, any of the [supervisory officials] failed to respond or remedy the situation, that any of these [supervisory officials] created or allowed a policy to continue under which alleged harassment could occur, or that they were grossly negligent in monitoring [the alleged harasser's] conduct”); Harris v. City of New York, No. 01-CV-6927, 2003 WL 554745, at *6 (S.D.N.Y. Feb. 26, 2003) (“[P]laintiff has put forth no evidence pointing to defendant ['s] personal involvement in plaintiff's alleged deprivation of rights .... Plaintiff's conclusory allegations regarding defendant['s] alleged supervisory role, without more, cannot withstand summary judgment.”). Further, nothing in the record, even drawing all inferences in Plaintiff's favor, suggests any tangible connection between Defendant Cola's training or supervision of subordinate officers and the alleged violation of Plaintiff's rights. In fact, the record contains no evidence with regard to Defendant Cola whatsoever. Without such evidence, no reasonable jury could conclude that Defendant Cola had personal involvement in the alleged violation of Plaintiff's constitutional rights, which means that Plaintiff has failed to satisfy a prerequisite to Section 1983 liability, and therefore that Defendant Cola is entitled to summary judgment in his favor. See Davis v. Kelly, 160 F.3d 917, 921 (2d Cir.1998) (“After an opportunity for discovery, undisputed allegations that [a] supervisor lacked personal involvement will ultimately suffice to dismiss that official from the case.”). In sum, the Court finds that Plaintiff has failed to establish the personal involvement of Defendants Pappas and Cola in the alleged violation of his rights. For reasons set forth more fully in the R & R, the Court also dismisses the Complaint as to the John Doe Defendants because Plaintiff's time limit to amend the Complaint in order to substitute in named defendants has lapsed. Therefore, the Court finds it unnecessary to reach the question of whether Plaintiff has adequately established an underlying violation of his constitutional rights. Finally, having determined that no cognizable federal claims exist, the Court will follow Magistrate © 2017 Thomson Reuters. No claim to original U.S. Government Works. 3 Austin v. Pappas, Not Reported in F.Supp.2d (2008) 2008 WL 857528 Judge Smith's recommendation in declining to exercise jurisdiction over the state law claims. *5 Accordingly, it is hereby: The Clerk of Court is respectfully directed to enter judgment in favor of Defendants, to terminate Defendant's Motion (Dkt. No. 28), and to close this case. ORDERED that the Report and Recommendation dated August 2, 2007, is ADOPTED on the grounds set forth in this Order; and it is further SO ORDERED. ORDERED that Defendants' Motion for Summary Judgment pursuant to Federal Rule of Civil Procedure 56 is GRANTED. Not Reported in F.Supp.2d, 2008 WL 857528 End of Document All Citations © 2017 Thomson Reuters. No claim to original U.S. Government Works. © 2017 Thomson Reuters. No claim to original U.S. Government Works. 4 Castillo v. Commissioner New York State Dept. of..., Not Reported in... 2008 WL 4501881 2008 WL 4501881 Only the Westlaw citation is currently available. United States District Court, W.D. New York. Robert CASTILLO, Plaintiff, v. COMMISSIONER NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES, Warden Wende Correctional Facility, Medical Director Wende C.F., Defendants. No. 06-CV-858A. | Sept. 30, 2008. West KeySummary 1 Civil Rights Criminal Law Enforcement; Prisons An inmate's § 1983 claim, which alleged that prison officials did not provide the inmate with immediate medical attention after a cleaning product was spilled on his head, was dismissed because the inmate failed to allege personal involvement by any of the defendants. Indeed, it was well settled that § 1983 did not permit liability for monetary damages on the basis of respondeat superior. 42 U.S.C.A. § 1983. Cases that cite this headnote Attorneys and Law Firms Lawrence E. Wright, Brooklyn, NY, for Plaintiff. Darren Longo, Office of the New York State Attorney General, Buffalo, NY, for Defendants. DECISION AND ORDER RICHARD J. ARCARA, Chief Judge. INTRODUCTION *1 The plaintiff, an inmate at Wende Correctional Facility, filed this action in the Eastern District of New York seeking damages under 42 U.S.C. § 1983 arising from a claim of deliberate indifference to his medical condition in violation of his “Fifth, Eighth, Ninth and Fourteenth Amendment rights.” 1 The action was subsequently transferred to this District, where venue was proper. 1 Although the complaint alleges violations of plaintiff's Fifth, Ninth and Fourteenth Amendment rights, it is clear that the gravamen of his claim is an Eighth Amendment violation of deliberate indifference to a serious medical condition. Counsel for the defendants brought a motion to dismiss the complaint arguing that: (1) the complaint fails to properly “name” the defendants; and (2) even if named properly, the complaint fails to allege that any of the defendants were personally involved in the alleged constitutional deprivation. Plaintiff opposed the motion to dismiss. The matter was deemed submitted without oral argument. For the reasons stated, the Court grants the defendants' motion to dismiss. BACKGROUND Plaintiff asserts that, on or about December 22, 2004, while housed as an inmate at Wende Correctional Facility, he was directed by the mess hall duty officer to clean the mess hall sink. The mess hall duty officer provided plaintiff with “Lime-A-Way LP (a multipurpose lime scale remover) in a spray bottle, gloves and a paper hat.” Compl. at ¶ 6. While preforming the assigned task, the Lime-A-Way dripped on plaintiff's head, causing an “immediate burning sensation.” Plaintiff rinsed his head but was unable to alleviate the burning sensation. He advised Correction Officer Branch about the situation but was not provided with immediate medical attention. Plaintiff alleges that he again requested medical attention and was not afforded a “sick call” treatment but his name was placed on a list to be seen by a medical doctor. Plaintiff saw a doctor on January 25, 2005, who referred © 2017 Thomson Reuters. No claim to original U.S. Government Works. 1 Castillo v. Commissioner New York State Dept. of..., Not Reported in... 2008 WL 4501881 him to a dermatologist. On February 18, 2005, plaintiff saw the dermatologist and was provided with a topical ointment. Plaintiff alleges that the defendants violated his constitutional rights when they failed to provide him with immediate medical attention. DISCUSSION Defendants have moved to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6). In evaluating a 12(b) (6) motion, the Court must accept the factual allegations in the complaint as true. See Erickson v. Pardus, --U.S. ----, ----, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007) (per curiam). The Supreme Court recently clarified standard applicable in evaluating a motion to dismiss under Rule 12(b)(6). See Bell Atlantic Corporation v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The Court replaced the prior standard that “a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief,” see Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), with the requirement that the complaint allege “only enough facts to state a claim to relief that is plausible on its face.” Twombly, 127 S.Ct. at 1974. However, the Supreme Court reaffirmed the principle that the complaint must recite factual allegations sufficient to raise the right to relief about the speculative level, and conclusory allegations or formulaic recitation of the elements will not do. See Twombly, 127 S.Ct. at 1964-65 (“While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.”) (internal quotations and citations omitted). *2 As stated, the defendants move to dismiss the complaint on two grounds. First, they claim that the complaint fails to comply with the requirements of Fed.R.Civ.P. 10(a) (requiring a complaint to “name” a party) because it fails to refer to any of the defendants by name and instead refers to each defendant only by his official title. Second, the defendants assert that dismissal is proper because the complaint fails to allege personal involvement by any of the defendants. Putting aside the issue of whether the defendants are properly named under Rule 10(a), the Court finds that complaint must be dismissed because it fails to allege personal involvement by any of the defendants. It is well settled that § 1983 does not permit liability for monetary damages on the basis of respondeat superior. See Monell v. Department of Soc. Serv., 436 U.S. 658, 694, n. 58, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.1995); Wright v. Smith, 21 F.3d 496, 501 (2d Cir.1994). To be liable for monetary damages under § 1983, a defendant must have had some personal involvement in the alleged constitutional deprivations. See Colon, 58 F.3d at 873; Wright, 21 F.3d at 501. Personal involvement by a supervisory defendant may be shown by evidence that: (1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference to the right of inmates by failing to act on information indicating that unconstitutional acts were occurring.” Colon, 58 F.3d at 873. Even accepting the allegations in plaintiff's complaint as true, plaintiff has not alleged any facts suggesting that the defendants in this case had personal knowledge of the alleged deprivation of medical care. Plaintiff does not claim that any of the defendants participated in the alleged deprivation or had any personal knowledge that medical care was being denied. Although plaintiff does allege that the defendants have “have adopted polices, practices and procedures which Defendants knew or should have reasonably known would be ineffective in delivering medical treatment and care,” see Compl. at ¶ 15, such conclusory allegations are insufficient to sustain a § 1983 claim. See Covington v. Coughlin, No. 93 Civ. 8372(JSM), 1994 WL 163692 at *2-3, (S.D.N.Y. Apr.28, 1994) (finding that a “vague reference” to alleged unconstitutional policy is insufficient to establish personal involvement); see also Funches v. Reish, 97 Civ. 7611(LBS), 1998 WL 695904 (S.D.N.Y. Oct. 5, 1998) (dismissing deliberate indifference to medical care claim against Warden of prison facility © 2017 Thomson Reuters. No claim to original U.S. Government Works. 2 Castillo v. Commissioner New York State Dept. of..., Not Reported in... 2008 WL 4501881 based upon conclusory allegation that Warden created “custom” of denying medical care). Plaintiff does not specify the particular policy or custom that each defendant created, or allege how that policy or custom resulted in the alleged deprivation. Plaintiff's theory of liability appears to be grounded simply upon the fact that the defendants were in charge of the prison. However, as stated, § 1983 damages will not be imposed based upon a respondeat superior theory of liability. See Gill v. Mooney, 824 F.2d 192, 196 (2d Cir.1987) (“Dismissal of a § 1983 claim is proper where, as here, the plaintiff does no more that allege that [defendant] was in charge of the prison.”) (internal quotations omitted). See also Ayers v. Coughlin, 780 F.2d 205, 210 (2d Cir.1985) (per curiam ) (“[P]laintiff's claim for monetary damages against [prison officials] requires a showing of more than the linkage in the prison chain of command.”). Absent any indication that the defendants played any role in the alleged constitutional deprivations, plaintiff's deliberate indifference claim must be dismissed. End of Document CONCLUSION *3 For the reasons stated, the defendants' motion to dismiss is granted and the complaint is dismissed in its entirety. The Clerk of the Court is directed to take all steps necessary to close the case. 2 2 Although the Court grants pro se incarcerated inmates with an opportunity to file an amended complaint, that accommodation is unnecessary where, as here, the plaintiff is represented by counsel. SO ORDERED. All Citations Not Reported in F.Supp.2d, 2008 WL 4501881 © 2017 Thomson Reuters. No claim to original U.S. Government Works. © 2017 Thomson Reuters. No claim to original U.S. Government Works. 3 Cash v. Bernstein, Not Reported in F.Supp.2d (2010) 2010 WL 5185047 2010 WL 5185047 Only the Westlaw citation is currently available. United States District Court, S.D. New York. David J. CASH, Plaintiff, v. BERNSTEIN, MD, Defendant. No. 09 Civ.1922(BSJ)(HBP). | Oct. 26, 2010. REPORT AND RECOMMENDATION 1 1 At the time the action was originally filed, the Honorable Leonard B. Sand, United States District Judge, granted plaintiff's application for in forma pauperis status based on plaintiff's ex parte submission (Docket Item 1). Although the present application seeking to revoke plaintiff's in forma pauperis status is non-dispositive, I address it by way of a report and recommendation to eliminate any appearance of a conflict between the decision of a district judge and that of a magistrate judge. PITMAN, United States Magistrate Judge. *1 TO THE HONORABLE BARBARA S. JONES, United States District Judge, I. Introduction By notice of motion dated March 4, 2010 (Docket Item 11), defendant moves pursuant to 28 U.S.C. § 1915(g) to revoke plaintiff's in forma pauperis (“IFP”) status on the ground that plaintiff has previously had at least three Section 1983 actions dismissed as frivolous, malicious or failing to state a claim upon which relief could be granted, and has not shown that he is in imminent danger of serious physical injury. Defendant further seeks an order directing that the action be dismissed unless plaintiff pays the full filing fee within thirty (30) days. For the reasons set forth below, I respectfully recommend that defendant's motion be granted. II. Facts Plaintiff, a sentenced inmate in the custody of the New York State Department of Correctional Services, commenced this action on or about January 12, 2009 by submitting his complaint to the Court's Pro Se office. Plaintiff alleges, in pertinent part, that he has “a non-healing ulcer that is gane green [sic ]” and that defendant Bernstein “did not want to treat the ulcer right” (Complaint, dated March 3, 3009 (Docket Item 2) (“Compl.”), at 3). The action was originally commenced against two defendants—Dr. Bernstein and Dr. Finkelstein. The action was dismissed as to Dr. Finkelstein because the complaint contained no allegations whatsoever concerning Dr. Finkelstein (Order dated February 18, 2010 (Docket Item 9)). On March 4, 2010, the sole remaining defendant—Dr. Bernstein—filed the current motion. Plaintiff failed to submit a response. Accordingly, on August 20, 2010, I issued an Order advising plaintiff that if he wished to oppose the motion, he must submit his opposition by September 15, 2010 and that after that date I would consider the motion fully submitted and ripe for decision (Order dated August 20, 2010 (Docket Item 15)). The only submission plaintiff has made in response to my Order is a multi-part form issued by the New York State Department of Correctional Services entitled “Disbursement or Refund Request.” 2 By this form, plaintiff appears to request that the New York State Department of Correctional Services pay the filing fee for this action. The form is marked “Denied.” 2 Plaintiff sent this form directly to my chambers, and it has not been docketed by the Clerk of the Court. The form will be docketed at the time this Report and Recommendation is issued. III. Analysis 28 U.S.C. § 1915 permits an indigent litigant to commence an action in a federal court without prepayment of the filing fee that would ordinarily be charged. Although an indigent, incarcerated individual need not prepay the filing fee at the time at the time of filing, he must subsequently pay the fee, to the extent he is able to do so, through periodic withdrawals from his inmate accounts. 28 U.S.C. § 1915(b); Harris v. City of New York, 607 F.3d 18, 21 (2d Cir.2010). To prevent abuse of the judicial system by inmates, paragraph (g) of this provision denies © 2017 Thomson Reuters. No claim to original U.S. Government Works. 1 Cash v. Bernstein, Not Reported in F.Supp.2d (2010) 2010 WL 5185047 incarcerated individuals the right to proceed without prepayment of the filing fee if they have repeatedly filed meritless actions, unless such an individual shows that he or she is in imminent danger of serious physical injury. See Ortiz v. McBride, 380 F.3d 649, 658 (2d Cir.2004) (“[T]he purpose of the PLRA ... was plainly to curtail what Congress perceived to be inmate abuses of the judicial process.”); Nicholas v. Tucker, 114 F.3d 17, 19 (2d Cir.1997). Specifically, paragraph (g) provides: *2 In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury. 28 U.S.C. § 1915(g). If an inmate plaintiff seeks to avoid prepayment of the filing fee by alleging imminent danger of serious physical injury, there must be a nexus between the serious physical injury asserted and the claims alleged. Pettus v. Morgenthau, 554 F.3d 293, 298 (2d Cir.2009). Section 1915(g) clearly prevents plaintiff from proceeding in this action without prepayment of the filing fee. The memorandum submitted by defendant establishes that plaintiff has had his IFP status revoked on at least four prior occasions as a result of his repeatedly filing meritless actions. • In 2005, plaintiff commenced an action in the United States District Court for the Northern District of New York seeking to have his infected leg amputated. Nelson 3 v. Lee, No. 9:05–CV–1096 (NAM)(DEP), 2007 WL 4333776 (N.D.N.Y. Dec. 5, 2007). In that matter, the Honorable Norman A. Mordue, Chief United States District Judge, accepted and adopted the Report and Recommendation of the Honorable David E. Peebles, United States Magistrate Judge, that plaintiff had brought three or more prior actions that had been dismissed for failure to state a claim and that plaintiff's IFP status should, therefore, be revoked. 2007 WL 4333776 at *1–*2. 3 It appears that plaintiff uses the names David J. Cash and Dennis Nelson interchangeably. In his complaint in this matter, plaintiff states that the Departmental Identification Number, or DIN, assigned to him by the New York State Department of Correctional Services (“DOCS”) is 94–B–0694 (Compl. at 7). DOCS inmate account records submitted by plaintiff in connection with his application for IFP status indicate that DIN 94–B–0694 is assigned to Dennis Nelson. In addition, the DOCS form described in footnote two bears the docket number of this action, but is signed in the name of Dennis Nelson and was sent in an envelope identifying the sender as Dennis Nelson. A subsequent action has been filed in this Court in which the plaintiff identifies himself as Dennis Nelson but lists his DIN as 94–B–0694, the same DIN used by plaintiff here. Finally, plaintiff has submitted nothing to controvert the assertion in defendant's papers that David Cash and Dennis Nelson are the same person. In light of all these facts, I conclude that David Cash and Dennis Nelson are both names used by plaintiff. • In Nelson v. Nesmith, No. 9:06–CV–1177 (TJM) (DEP), 2008 WL 3836387 (N.D.N.Y. Aug. 13, 2008), plaintiff again filed an action concerning the medical care he was receiving for his left leg. The Honorable Thomas J. McAvoy, United States District Judge, accepted the Report and Recommendation of Magistrate Judge Peebles, and revoked plaintiff's IFP status and dismissed the action on the ground that plaintiff had previously commenced at least three actions that had been dismissed on the merits. 2008 WL 3836387 at *1, *7. • In Nelson v. Spitzer, No. 9:07–CV–1241 (TJM) (RFT), 2008 WL 268215 (N.D.N.Y. Jan. 29, 2008), Judge McAvoy again revoked plaintiff's IFP status on the ground that plaintiff had commenced three or more actions that constituted “strikes” under Section 1915(g) and had not shown an imminent threat of serious physical injury. 2008 WL 268215 at *1–*2. • Finally, in Nelson v. Chang, No. 08–CV–1261 (KAM)(LB), 2009 WL 367576 (E.D.N.Y. Feb. © 2017 Thomson Reuters. No claim to original U.S. Government Works. 2 Cash v. Bernstein, Not Reported in F.Supp.2d (2010) 2010 WL 5185047 10, 2009), the Honorable Kiyo A. Matsumoto, United States District Judge, also found, based on the cases discussed above, that plaintiff had exhausted the three strikes permitted by Section 1915(g) and could not proceed IFP in the absence of a demonstration of an imminent threat of serious physical injury. 2009 WL 367576 at *2–*3. *3 As defendant candidly admits, there is one case in which plaintiff's leg infection was found to support a finding of an imminent threat of serious physical injury sufficient to come within the exception to Section 1915(g). Nelson v. Scoggy, No. 9:06–CV–1146 (NAM) (DRH), 2008 WL 4401874 at *2 (N.D.N.Y. Sept. 24, 2008). Nevertheless, summary judgment was subsequently granted for defendants in that case, and the complaint was dismissed. Judge Mordue concluded that there was no genuine issue of fact that plaintiff had received adequate medical care for his leg wound and that the failure of the leg to heal was the result of plaintiff's own acts of self-mutilation and interference with the treatment provided. Nelson v. Scoggy, No. 9:06–CV–1146 (NAM) (DRH), 2009 WL 5216955 at *3–*4 (N.D.N.Y. Dec. 30, 2009). 4 4 Although the form complaint utilized by plaintiff expressly asks about prior actions involving the same facts, plaintiff disclosed only the Scoggy action and expressly denied the existence of any other actions relating to his imprisonment (Compl. at 6). In light of the foregoing, there can be no reasonable dispute that plaintiff has exceeded the three “strikes” allowed by Section 1915(g) and that he cannot, therefore, proceed here without prepaying the filing fee unless he demonstrates an imminent threat of serious physical injury. Plaintiff has declined to attempt to make this showing in response to defendant's motion, and the only suggestion in the record of serious physical injury is the bare statement in the complaint that plaintiff “need[s] to go back to a wound speci [a]list before the gane green [sic ] kills [him]” (Compl. at 5). “However, unsupported, vague, self-serving, conclusory speculation is not sufficient to show that Plaintiff is, in fact, in imminent danger of serious physical harm.” Merriweather v. Reynolds, 586 F.Supp.2d 548, 552 (D.S.C.2008), citing Ciarpaglini v. Saini, 352 F.3d 328, 330 (7th Cir.2003) and White v. Colorado, 157 F.3d 1226, 1231–32 (10th Cir.1998); see also Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir.2003) (imminent danger exception to Section 1915(g) requires “specific fact allegations of ongoing serious physical injury, or of a pattern of misconduct evidencing the likelihood of imminent serious physical injury”). Given the plaintiff's history, as set forth in the cases described above, I conclude that this vague statement is insufficient to support a finding that plaintiff is in imminent danger of serious physical injury. 5 5 Plaintiff has sent me several letters describing his wound and its symptoms in detail, and I have no doubt that the wound is serious. However, in granting summary judgment dismissing an action last year based on the same allegations, Judge Mordue of the Northern District found that there was no genuine issue of fact that plaintiff's own conduct was responsible for the ineffectiveness of the treatment he was provided: Furthermore, to the extent that Nelson's medical treatment was delayed, much of the delay was due to his own refusal to cooperate with medical staff and his self-mutilations. Nelson's actions to thwart the medical treatment of his wound cannot be construed as interference or indifference by anyone else.... [T]he medical treatment Nelson received complied with constitutional guarantees as it was appropriate, timely, and delayed only by Nelson's own actions. Nelson v. Scoggy, supra, 2009 WL 5216955 at *4. Given plaintiff's total failure to respond to the pending motion and his failure to even deny that he is actively thwarting treatment of his wound, it would be sheer speculation for me to conclude that he is in imminent danger of a serious injury as a result of defendant's conduct. IV. Conclusion Accordingly, for all the foregoing reasons, I find that plaintiff has had three or more prior actions dismissed as being frivolous, malicious or failing to state a claim and that plaintiff's in forma pauperis status should, therfore, be revoked. If your Honor accepts this recommendation, I further recommend that the action be dismissed unless plaintiff pays the filing fee in full within thirty (30) days of your Honor's final resolution of this motion. V. OBJECTIONS Pursuant to 28 U.S.C. § 636(b)(1)(C) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from receipt of this Report © 2017 Thomson Reuters. No claim to original U.S. Government Works. 3 Cash v. Bernstein, Not Reported in F.Supp.2d (2010) 2010 WL 5185047 to file written objections. See also Fed.R.Civ.P. 6(a). Such objections (and responses thereto) shall be filed with the Clerk of the Court, with courtesy copies delivered to the Chambers of the Honorable Barbara S. Jones, United States District Judge, 500 Pearl Street, Room 1920, and to the Chambers of the undersigned, 500 Pearl Street, Room 750, New York, New York 10007. Any requests for an extension of time for filing objections must be directed to Judge Jones. FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. Thomas End of Document v. Arn, 474 U.S. 140, 155 (1985); United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir.1997); IUE AFL– CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir.1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 57–59 (2d Cir.1988); McCarthy v. Manson, 714 F.2d 234, 237–38 (2d Cir.1983). All Citations Not Reported in F.Supp.2d, 2010 WL 5185047 © 2017 Thomson Reuters. No claim to original U.S. Government Works. © 2017 Thomson Reuters. No claim to original U.S. Government Works. 4 Pucci v. Brown, 423 Fed.Appx. 77 (2011) 423 Fed.Appx. 77 This case was not selected for publication in the Federal Reporter. United States Court of Appeals, Second Circuit. Alfred C. PUCCI, Plaintif–Appellant, v. Barbara Berish BROWN, Defendant–Appellee. No. 10–2448–cv. | May 31, 2011. UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court be AFFIRMED. Attorneys and Law Firms Alfred C. Pucci, pro se, Montrose, NY, for Plaintiff– Appellant. No appearance for Defendant–Appellee. Present: ROBERT D. SACK, DEBRA ANN LIVINGSTON, GERARD E. LYNCH, Circuit Judges. SUMMARY ORDER **1 Plaintiff–Appellant Alfred C. Pucci (“Pucci”), pro se, appeals from a judgment of the United States District Court for the Southern District of New York (Preska, C.J.), entered May 5, 2010, sua sponte dismissing his complaint for lack of subject matter jurisdiction and, in the alternative, for failure to state a claim upon which relief may be granted. We assume the parties' familiarity with the underlying facts, the procedural history of the case, and the issues on appeal. We review a district court's dismissal of a complaint for lack of subject matter jurisdiction de novo. Celestine v. Mount Vernon Neighborhood Health Ctr., 403 F.3d 76, 79–80 (2d Cir.2005). “It is a fundamental precept that End of Document federal courts are courts of limited jurisdiction and lack the power to disregard such limits as have been imposed by the Constitution or Congress.” Durant, Nichols, Houston, Hodgson & Cortese–Costa, P.C. v. Dupont, 565 F.3d 56, 62 (2d Cir.2009) (internal quotation marks omitted). Here, Pucci's complaint suggests no basis for federal question jurisdiction, as he is not suing under the Constitution or any federal law. See 28 U.S.C. § 1331. Nor has Pucci pleaded any basis for a federal court to exercise diversity jurisdiction in this matter because, *78 although he and the defendant are alleged to be diverse in citizenship, Pucci has failed to plead any amount in controversy, let alone an amount in excess of $75,000. See, e.g., Lupo v. Human Affairs Int'l, Inc., 28 F.3d 269, 273 (2d Cir.1994) (“[T]he party asserting diversity jurisdiction in federal court has the burden of establishing the existence of the jurisdictional amount in controversy.”); Tongkook Am., Inc. v. Shipton Sportswear Co., 14 F.3d 781, 784 (2d Cir.1994) (“A party invoking the jurisdiction of the federal court has the burden of proving that it appears to a ‘reasonable probability’ that the claim is in excess of the statutory jurisdictional amount.”). Finally, we decline to remand to the district court to permit the pro se plaintiff to replead. On independent review of the record, “we do not find that the complaint liberally read suggests that the plaintiff has a claim that [ ]he has inadequately or inartfully pleaded and that [ ]he should therefore be given a chance to reframe.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir.2000) (internal quotation marks and citation omitted). While Pucci argues that he “entered into an implied and oral contract” with the Defendant–Appellee for certain services, the documents he himself has provided refute this assertion. The record thus leaves no possibility that Plaintiff could assert a viable claim against this defendant. We have considered all of Plaintiff–Appellant's remaining arguments and find them to be without merit. For the foregoing reasons, the judgment of the district court is hereby AFFIRMED. All Citations 423 Fed.Appx. 77, 2011 WL 2133615 © 2017 Thomson Reuters. No claim to original U.S. Government Works. © 2017 Thomson Reuters. No claim to original U.S. Government Works. 1 Scanlon v. Vermont, 423 Fed.Appx. 78 (2011) 423 Fed.Appx. 78 This case was not selected for publication in the Federal Reporter. United States Court of Appeals, Second Circuit. John J. SCANLON, Jr., Plaintiff–Appellant, v. State of VERMONT, et al., Defendant–Appellee. No. 10–4766–cv. | May 31, 2011. UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court be AFFIRMED. Attorneys and Law Firms John J. Scanlon, Jr., Port Charlotte, FL, pro se. No appearance for Defendant–Appellee. PRESENT: ROBERT D. SACK, DEBRA ANN LIVINGSTON and GERARD E. LYNCH, Circuit Judges. SUMMARY ORDER **1 Plaintiff–Appellant John J. Scanlon, Jr. (“Scanlon”), pro se, appeals from an Opinion and Order of the End of Document United States District *79 Court for the District of Vermont (Sessions, J.), entered November 10, 2010, sua sponte dismissing his complaint as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). We assume the parties' familiarity with the underlying facts, the procedural history of the case, and the issues on appeal. We review a district court's sua sponte dismissal of a complaint under § 1915(e) de novo, bearing in mind that, under § 1915(e)(2), a court must dismiss an action “at any time” if it determines that the action is frivolous. Giano v. Goord, 250 F.3d 146, 149–50 (2d Cir.2001). An action is frivolous if it lacks an arguable basis in law or fact—i.e., where it is “based on an indisputably meritless legal theory” or presents “factual contentions [which] are clearly baseless.” Neitzke v. Williams, 490 U.S. 319, 327, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). Having conducted an independent and de novo review of the record in light of these principles, we affirm the district court's judgment for substantially the same reasons stated by the district court in its thorough and well-reasoned decision. Indeed, Scanlon's brief, constituting several pages of the complaint filed in the district court below, effectively fails to respond to the district court's decision, as it contains no reference to that decision or identifiable argument. Accordingly, the judgment of the district court is hereby AFFIRMED. All Citations 423 Fed.Appx. 78, 2011 WL 2133622 © 2017 Thomson Reuters. No claim to original U.S. Government Works. © 2017 Thomson Reuters. No claim to original U.S. Government Works. 1
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