Acevedo v. Fischer et al, No. 1:2012cv06866 - Document 133 (S.D.N.Y. 2014)

Court Description: OPINION AND ORDER re: 93 MOTION to Dismiss Second Amended Complaint filed by Tim Ward, 98 MOTION to Dismiss filed by El Hadji Gueye, McDonahue, Ely, Russo, Buntz, DeDazizo, Glass, Long, C. Karson, William A. Lee, La Frese, Pushpa Patil, Jordon, Brian Fischer, Batiell, Lyons, Gardiner, Warrington, Patrick J. Griffin, Henschel. As set forth within, Defendants' motions to dismiss are granted in part and denied in part. Specifically, all of P laintiff's claims against all Defendants - with the exception of his First Amendment interference with mail claims against Defendants Geiss, Lee, and Warrington - are dismissed. The Court also declines to dismiss the First Amendment mail monitor ing claim against Serrano, at least at this stage. Consistent with the accompanying Order, Acevedo shall submit the appropriate forms in order to effect service upon Serrano. Additionally, by way of separate Order, the Court is referring the case to Magistrate Judge Dolinger for General Pretrial. The Clerk of Court is respectfully requested to close the motions pending at docket numbers 93 and 98, and to terminate all Defendants from the case with the exception of Defendants Lee, Geiss, Serrano, and Warrington. SO ORDERED. (See Order.) (Signed by Judge Ronnie Abrams on 9/29/2014) (ajs)

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Acevedo v. Fischer et al Doc. 133 Dockets.Justia.com "It is well settled that, in order to establish a defendant's individual liability in a suit brought under§ 1983, a plaintiff must show, inter alia, the defendant's personal involvement in the alleged constitutional deprivation." Grullon v. City of New Haven, 720 F.3d 133, 138 (2d Cir. 2013 ). "Both the Court of Appeals and numerous district courts in this Circuit have repeatedly held that receipt of letters or grievances is insufficient to impute personal involvement. Were it otherwise, virtually every prison inmate who sues for constitutional torts by prison officials could name the supervisor as a defendant since the plaintiff must pursue his prison remedies, and invariably the plaintiffs grievance will have been passed upon by the supervisor." Harris v. Fischer, 11 CIV. 6260 CM JLC, 2014 WL 3859242, at *3 (S.D.N.Y. Aug. 1, 2014). Here, Acevedo alleges only that the Defendants failed to act on or investigate his grievances and other appeals. Moreover, although he suggests that several of the Defendants were "participant[s]" or had "joined"-he does not specify precisely what they had joined-he does not allege any facts supporting these conclusory and speculative allegations. Even assuming Acevedo is alleging that these individuals "joined" in harassment or verbal abuse, such claims are not actionable under§ 1983. See Toliver v. New York City Dep't of Corr., 10 CIV. 822 RJS JCF, 2013 WL 3779125, at *14 (S.D.N.Y. July 8, 2013). The claims against these Defendants are thus dismissed. 8. Leave to Amend Having concluded that all of Acevedo's claims should be dismissed-with the exception of his interference with mail claims against Lee, Geiss, Serrano, and Warrington-the Court finally must consider whether it should grant him leave to amend. "Generally, leave to amend should be freely given, and a pro se litigant in particular 30 should be afforded every reasonable opportunity to demonstrate that he has a valid claim." Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014). A prose complaint in particular "should not be dismissed without the Court granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated." Id. Whether to grant or deny leave to amend is committed to the "sound discretion of the district court," and leave may be denied "for good reason, including futility, bad faith, undue delay, or undue prejudice to the opposing party." McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir. 2007). Here, the Court has already given Acevedo two opportunities to amend his complaint. (ECF Nos. 7, 38.) Considered together, the SAC and Acevedo's opposition total more than eight hundred pages. Moreover, in its Order granting Plaintiff leave to file the SAC, the Court warned that "[n]o further opportunities to amend shall be granted absent a showing of good cause." (ECF No. 38.) Accordingly, the Court declines to grant Acevedo leave to file a Third Amended Complaint. See Best v. City ofNew York, 12 CIV. 7874 RJS SN, 2014 WL 163899, at *3 (S.D.N.Y. Jan. 15, 2014) (declining to grant leave to amend, where plaintiff had already been given two opportunities to do so, and noting that "the Court can only afford [Plaintiff] so many bites at the apple"); Parker v. DeBuono, 98 CIV. 5765 (NRB), 2000 WL 223841 (S.D.N.Y. Feb. 25, 2000), aff'd sub nom. Parker v. Com'r DeBuono, 242 F.3d 366 (2d Cir. 2000) ("Leave to amend is appropriately denied where, as here, plaintiff has already had two opportunities to replead and the benefit of specific warnings as to his complaints' deficiencies."). CONCLUSION Defendants' motions to dismiss are granted in part and denied in part. Specifically, all of Plaintiff's claims against all Defendants-with the exception of his First Amendment interference with mail claims against Defendants Geiss, Lee, and Warrington-are dismissed. 31 The Court also declines to dismiss the First Amendment mail monitoring claim against Serrano, at least at this stage. Consistent with the accompanying Order, Acevedo shall submit the appropriate forms in order to effect service upon Serrano. Additionally, by way of separate Order, the Court is referring the case to Magistrate Judge Dolinger for General Pretrial. The Clerk of Court is respectfully requested to close the motions pending at docket numbers 93 and 98, and to terminate all Defendants from the case with the exception of Defendants Lee, Geiss, Serrano, and Warrington. SO ORDERED. Dated: September 29, 2014 New York, New York Ro nie Abrams United States District Judge 32

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