Opinion
21-CV-02336 (LTS)
05-17-2021
KASHAWN A. FASHAW, Plaintiff, v. THE STATE OF NEW YORK, et al., Defendants.
ORDER TO AMEND :
Plaintiff is currently in pretrial detention in the Otis B. Bantam Center (OBCC) on Rikers Island. He brings this pro se action under 42 U.S.C. § 1983, alleging that Defendants violated his constitutional rights. Plaintiff also filed an order to show cause seeking immediate injunctive relief, and a motion for pro bono counsel. By order dated April 23, 2021, the Court granted Plaintiff's request to proceed without prepayment of fees, that is, in forma pauperis. For the reasons set forth below, the Court grants Plaintiff leave to file an amended complaint within sixty days of the date of this order.
STANDARD OF REVIEW
The Prison Litigation Reform Act requires that federal courts screen complaints brought by prisoners who seek relief against a governmental entity or an officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a). The Court must dismiss a prisoner's in forma pauperis complaint, or any portion of the complaint, 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 if 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.
The Supreme Court has held that under Rule 8, a complaint must 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
Named as Defendants in this matter are the City of New York; the mayor of the City of New York; the OBCC warden; employees of the New York City Department of Correction (DOC) Office of Mental Health and other city agencies; the State of New York; Governor Cuomo; the commissioner of the New York State Department of Corrections and Community Supervision (DOCCS); the commissioner of the New York State Office of Mental Health for Corrections; the commissioner of the New York State Board of Parole; John and Jane Doe parole officers; and John and Jane Doe employees of the New York State Office of Mental Health.
After Plaintiff submitted his complaint, he submitted an "amended statement of facts." The Court has considered the allegations in both submissions. Ordinarily, however, the Court cannot act upon a letter. Accordingly, any claims or facts Plaintiff wishes the Court to consider going forward must be included in his amended pleadings.
What follows is a summary of the allegations in the complaint. Since 2009, Plaintiff has cycled in and out of city and state custody and the New York City shelter system. During that time, Plaintiff sustained "multiple injuries," was subjected to punitive segregation, and was "expos[ed] to stressful, toxic, violent, cruel and unusual traumatic environmental settings." There was no discharge planning; Plaintiff received no "assistance" with his "impulsive" and "compulsive" behaviors; and his substance abuse and mental health issues went undiagnosed and untreated. (ECF 9 at 4, 8-9, 17, 22, 26, 40-41). Upon being released from custody, Plaintiff ended up living with friends or family members in unhealthy situations because his only other choice was to live in a shelter. (Id. at 43.)
Citations are to the Court's ECF pagination.
In 2015, Plaintiff sustained a work injury, had surgery, and was given opioid pain medication to which he became addicted. According to Plaintiff, the medication "shift[ed]" his "cognitive abilit[ies]," and he also became addicted to crack cocaine. (Id. at 32-33.) As a result of his addiction, Plaintiff grew unable to "distinguish right from wrong," which contributed to the pattern of arrests and incarceration. (Id. at 44.) At some point, Plaintiff was arrested for bringing drug paraphernalia to an appointment with his parole officer. (Id. at 35.)
Plaintiff also appears to challenge a number of state court convictions. In 2009, when Plaintiff was "14-16" years old, he was treated "negligently" as "a common criminalized youth." At a proceeding in the Bronx County Supreme Court, during which time Plaintiff was represented by the "Bronx Defenders Association," he was denied youthful offender status. (Id. at 6-7, 11.) At some point, a warrant was issued for Plaintiff's arrest in Suffolk County, stemming from Plaintiff's attempt to bite an officer, who "attack[ed Plaintiff's] witness for this complaint." (Id. at 9-10.) Plaintiff filed a pro se motion under New York Crim. Proc. L. § 440.10 in state court, and he may have been resentenced. He also refers to a pending § 440.20 motion. (Id. at 20.)
Plaintiff is currently being denied adequate mental health treatment at OBCC, and he seeks immediate injunctive relief, appointment of pro bono counsel, and damages. (ECF 2-2 at 58, 67, ECF 78, 2-1 at 1.) Attached to the original complaint are multiple incident reports, grievances, personal injury claim forms, and medical records. (ECF 2-1 at 41-73.) Most documents appear to be from 2020 and concern events occurring at OBCC.
DISCUSSION
A. Section 1983 and personal involvement
To state a claim under § 1983, a plaintiff must allege both that: (1) a right secured by the Constitution or laws of the United States was violated, and (2) the right was violated by a person acting under the color of state law, or a "state actor." West v. Atkins, 487 U.S. 42, 48-49 (1988).
A plaintiff proceeding under § 1983 must also allege facts showing the defendants' direct and personal involvement in the alleged constitutional deprivation. See Spavone v. N.Y. State Dep't of Corr. Serv., 719 F.3d 127, 135 (2d Cir. 2013) ("It is well settled in this Circuit that personal involvement of defendants in the alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.") (internal quotation marks omitted). A defendant may not be held liable under § 1983 solely because that defendant employs or supervises a person who violated the plaintiff's rights. See Iqbal, 556 U.S. at 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).
There are no facts in the complaint showing how each individual defendant was personally involved in the events underlying Plaintiff's claims. Plaintiff cannot assert viable claims against individuals in supervisory positions, including the governor, the mayor, and commissioners of city and state agencies, simply because they are in positions of authority. In fact, Plaintiff names multiple defendants in the caption of the complaint but asserts no specific facts against any of them in the body of the complaint. See Iwachiw v. New York State Dep't of Motor Vehicles, 299 F. Supp.2d 117, 121 (E.D.N.Y. 2004) (quoting Dove v. Fordham Univ., 56 F. Supp. 2d 330, 335 (S.D.N.Y. 1999) ("[W]here the complaint names a defendant in the caption but contains no allegations indicating exactly how the defendant violated the law or injured the plaintiff, a motion to dismiss the complaint in regard to that defendant should be granted"), aff'd, 396 F.3d 525 (2d Cir. 2005).
The complaint also fails to set forth specific facts suggesting that Plaintiff's constitutional rights were violated. Instead, Plaintiff relies exclusively on legal conclusions and "unadorned, the-defendant-unlawfully-harmed-me accusation[s]," Iqbal, 556 U.S. at 678, which are insufficient to state a claim under Rule 8 of the Federal Rules of Civil Procedure. Plaintiff is granted leave to file an amended complaint to provide facts explaining how each individual defendant violated his constitutional rights.
B. Claims against New York City
To state a claim against the City of New York, it is not enough for the plaintiff to allege that one of the municipality's employees or agents engaged in some wrongdoing. Instead, he must show that the municipality itself caused the violation of the plaintiff's rights. See Connick v. Thompson, 563 U.S. 51, 60 (2011) (relying on Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 692 (1978)). In other words, to state a § 1983 claim against a municipality, a plaintiff must allege facts showing (1) the existence of a municipal policy, custom, or practice, and (2) that the policy, custom, or practice caused the violation of the plaintiff's constitutional rights. See Jones v. Town of East Haven, 691 F.3d 72, 80 (2d Cir. 2012); Bd. of Cnty. Comm'rs of Bryan Cnty. v. Brown, 520 U.S. 397, 403 (1997).
The complaint does not set forth facts giving rise to an inference that a municipal policy, custom, or practice caused the events giving rise to this complaint. If Plaintiff seeks to hold New York City liable for what occurred, he must set forth facts showing that a city policy, custom, or practice caused his injury.
C. Claims against New York State
"[A]s a general rule, state governments may not be sued in federal court unless they have waived their Eleventh Amendment immunity, or unless Congress has abrogated the states' Eleventh Amendment immunity . . . ." Gollomp v. Spitzer, 568 F.3d 355, 366 (2d Cir. 2009). "The immunity recognized by the Eleventh Amendment extends beyond the states themselves to state agents and state instrumentalities that are, effectively, arms of a state." Id. New York has not waived its Eleventh Amendment immunity to suit in federal court, and Congress did not abrogate the states' immunity in enacting 42 U.S.C. § 1983. See Trotman v. Palisades Interstate Park Comm'n, 557 F.2d 35, 40 (2d Cir. 1977).
Plaintiff's claim for damages under § 1983 against the State of New York are therefore barred by the Eleventh Amendment and are dismissed.
D. Deliberate Indifference
Plaintiff appears to assert some claims that arose when he was a pretrial detainee and others that arose when he was a convicted prisoner. If Plaintiff was a pretrial detainee at the time of the events giving rise to his claims, the claims arise under the Due Process Clause of the Fourteenth Amendment. If he was a convicted prisoner, his claims arise under the Cruel and Unusual Punishments Clause of the Eighth Amendment. Bell v. Wolfish, 441 U.S. 520, 536 n.16 (1979); Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir. 2017). Whether Plaintiff was a pretrial detainee or convicted prisoner, he must satisfy two elements to state such a claim: (1) an "objective" element, which requires a showing that the challenged conditions are sufficiently serious, and (2) a "mental" element, which requires a showing that the officer acted with at least deliberate indifference to the challenged conditions. Darnell, 849 F.3d at 29.
The objective element of a deliberate indifference claim is the same for pretrial detainees and convicted prisoners - "the inmate must show that the conditions, either alone or in combination, pose an unreasonable risk of serious damage to his health" or safety, which "includes the risk of serious damage to 'physical and mental soundness.'" Id. at 30 (citing Walker v. Schult, 717 F.3d 119, 125 (2d Cir. 2013), and quoting LaReau v. MacDougall, 473 F.2d 974, 978 (2d Cir. 1972)); see also Farmer v. Brennan, 511 U.S. 825, 828 (1994) ("A prison official's 'deliberate indifference' to a substantial risk of serious harm to an inmate violates the Eighth Amendment."). "[P]rison officials violate the Constitution when they deprive an inmate of his basic human needs such as food, clothing, medical care, and safe and sanitary living conditions." Walker, 717 F.3d at 125 (internal quotation marks omitted).
The second element - the "subjective" or "mental" element - varies depending on whether a plaintiff is a pretrial detainee or convicted prisoner. A convicted prisoner must allege 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 be drawn that a substantial risk of serious harm exists, and he must also [have] draw[n] the inference." Darnell, 849 F.3d at 32 (quoting Farmer, 511 U.S. at 837). A pretrial detainee must allege "that the defendant-official acted intentionally to impose the alleged condition, or recklessly failed to act with reasonable care to mitigate the risk that the condition posed to the pretrial detainee even though the defendant-official knew, or should have known, that the condition posed an excessive risk to health or safety." Id. at 35. The mere negligence of a correction official is not a basis for a claim of a federal constitutional violation under section 1983. See Daniels v. Williams, 474 U.S. 327, 335-36 (1986); Davidson v. Cannon, 474 U.S. 344, 348 (1986).
Under either standard, Plaintiff has failed to allege facts showing how any defendant was deliberately indifferent to his safety or serious mental-health needs. If Plaintiff files an amended complaint, he must provide specific facts supporting such a claim.
E. Claims arising out of shelter experiences
To the extent that Plaintiff brings this action because he was sent to undesirable shelters, or had negative experiences in shelters, he fails to state a claim under the Due Process Clause or any other constitutional provision because neither federal nor New York State law creates a right to placement in a particular type of shelter. See Lindsey v. Normet, 405 U.S. 56, 74 (1972) ("We are unable to perceive in [the Constitution] any constitutional guarantee of access to dwellings of a particular quality. . . [a]bsent constitutional mandate, the assurance of adequate housing and the definition of landlord-tenant relationships are legislative, not judicial, functions"); Jenkins v. New York City Dept. of Homeless Services, 643 F. Supp. 2d 507, 512 (S.D.N.Y. 2009) ("The Plaintiff has no claim for deprivation of property without due process because he does not have a property right to placement in a particular type of shelter under New York law.").
The Eighth Amendment, which prohibits the infliction of "cruel and unusual punishments," only applies to convicted individuals who are in custody. See U.S. Const. amend. VIII; Cox v. Fischer, 248 F. Supp. 3d 471, 484 (S.D.N.Y. 2017) (noting that the Eighth Amendment is "specifically concerned with the unnecessary and wanton infliction of pain in penal institutions," and serves as "the primary source of substantive protection to" convicted prisoners) (citing Whitley v. Albers, 475 U.S. 312, 327 (1986)).
Because Plaintiff was not a prisoner or in criminal custody when he was in the shelter system, the deliberate indifference standard does not apply to his allegations arising during from his experiences in shelters. It is not clear if there are any other timely constitutional or other federal claims Plaintiff can assert arising out of his experiences in the shelter system.
F. Criminal matters
In Younger v. Harris, 401 U.S. 37 (1971), the Supreme Court of the United States held that a federal court may not intervene in a pending state-court criminal proceeding in the absence of special circumstances suggesting bad faith, harassment, or irreparable injury that is both serious and immediate. See Heicklen v. Morgenthau, 378 F. App'x 1, 2 (2d Cir. 2010) (summary order) (quoting Gibson v. Berryhill, 411 U.S. 564, 573-74 (1973)). Younger abstention is appropriate in only three categories of state-court proceedings: (1) state criminal prosecutions; (2) civil enforcement proceedings that are "akin to criminal prosecutions"; and (3) civil proceedings "that implicate a State's interest in enforcing the orders and judgments of its courts." Sprint Commc'n, Inc. v. Jacobs, 571 U.S. 69, 72-73 (2013).
A state criminal proceeding ordinarily provides an adequate forum to raise federal constitutional challenges to a prosecution. Cullen v. Fliegner, 18 F.3d 96, 103 (2d Cir. 1994). Thus, the Younger abstention doctrine applies when a plaintiff seeks a federal court's intervention in a state criminal action while that plaintiff's criminal matter is pending. See Randolph v. Vance, No. 19-CV-6377, 2019 WL 3564562, at *1-2 (S.D.N.Y. Aug. 5, 2019).
Plaintiff may be seeking this Court's intervention in his state criminal action, which appears to be pending. The Court dismisses Plaintiff's claims for injunctive relief arising from his pending state-court criminal action under the Younger abstention doctrine. If Plaintiff seeks release, or is challenging the constitutionality of a conviction, he may file a petition for habeas corpus relief under 28 U.S.C. § 2254 after exhausting his available state-court remedies. See 28 U.S.C. § 2254(b)(1)(A).
When success on a plaintiff's civil rights claim would "necessarily imply the invalidity of his conviction or sentence," the plaintiff cannot proceed with the civil rights action unless the conviction or sentence has been invalidated. Heck v. Humphrey, 512 U.S. 477, 487 (1994). If Plaintiff seeks damages for a conviction that has not been overturned or otherwise called into question, he cannot proceed with section 1983 claims for damages that would necessarily be inconsistent with his conviction.
A prisoner seeking habeas relief under section 2254 must generally file a petition within one year from the latest of four benchmark dates: (1) when the judgment of conviction becomes final; (2) when a government-created impediment to making such a motion is removed; (3) when the constitutional right asserted is initially recognized by the Supreme Court, if it has been made retroactively available to cases on collateral review; or (4) when the facts supporting the claim(s) could have been discovered through the exercise of due diligence. See 28 U.S.C. § 2244(d)(1)-(2).
G. Statute of limitations
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). Many of Plaintiff's allegations arise out of events that occurred more than three years ago.
Moreover, it appears that some of Plaintiff's older claims, arising from events occurring while he was in DOCCS custody, did not occur within this District. Under 28 U.S.C. § 1391(b), a civil action may be brought in "(1) a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located; (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated; or (3) if there is no district in which an action may otherwise be brought as provided in this section, any judicial district in which any defendant is subject to the court's personal jurisdiction with respect to such action." Plaintiff is hereby notified that this Court is not the proper venue for claims arising from events that did not occur within this District. If Plaintiff seeks to pursue those claims, he must file a complaint in the proper district court.
The doctrine of equitable tolling permits a court, "under compelling circumstances, [to] make narrow exceptions to the statute of limitations in order 'to prevent inequity.'" In re U.S. Lines, Inc., 318 F.3d 432, 436 (2d Cir. 2003) (citation omitted). The statute of limitations may be equitably tolled, for example, when a defendant fraudulently conceals from a plaintiff the fact that the plaintiff has a cause of action, or when the plaintiff is induced by the defendant to forego a lawsuit until the statute of limitations has expired. See Pearl, 296 F.3d at 82-83. In addition, New York law provides that where a person "is under a disability because of . . . insanity at the time the cause of action accrues," the applicable statute of limitations will be tolled. N.Y. C.P.L.R. § 208; Gardner v. Wansart, No. 05-CV-3351, 2006 WL 2742043, at *5 n.4 (S.D.N.Y. Sept. 25, 2006) (although mental illness is on its own insufficient for equitable tolling purposes, tolling is appropriate if a plaintiff is insane at the time the cause of action accrues and is "unable to protect [his] legal rights because of an overall inability to function in society"). New York also provides by statute for other circumstances in which a limitations period may be tolled. See, e.g., N.Y. C.P.L.R. § 204(a) (where commencement of an action has been stayed by court order), id. at § 204 (where a dispute has been submitted to arbitration but is ultimately determined to be non-arbitrable), id. at § 207(3) (defendant is outside New York at the time the claim accrues), id. at § 208 (plaintiff is disabled by infancy or insanity), id. at § 210 (death of plaintiff or defendant).
Plaintiff does not allege any facts suggesting that the limitations period should be tolled in this case. Because the failure to file an action within the limitations period is an affirmative defense, however, a plaintiff is generally not required to plead that the case is timely filed. See Abbas v. Dixon, 480 F.3d 636, 640 (2d Cir. 2007). Dismissal is, nonetheless, appropriate where the existence of an affirmative defense, such as the statute of limitations, is plain from the face of the pleading. See Walters v. Indus. and Commercial Bank of China, Ltd., 651 F.3d 280, 293 (2d Cir. 2011) ("[D]istrict courts may dismiss an action sua sponte on limitations grounds in certain circumstances where the facts supporting the statute of limitations defense are set forth in the papers plaintiff himself submitted.") (internal quotation marks and citation omitted); Pino v. Ryan, 49 F.3d 51, 53 (2d Cir. 1995) (affirming sua sponte dismissal of complaint as frivolous on statute of limitations grounds). But district courts should grant notice and opportunity to be heard before dismissing a complaint sua sponte on statute of limitations grounds. See Abbas, 480 F.3d at 640.
The Court grants Plaintiff leave to replead facts showing that his claims are timely.
H. Motion for counsel
The factors to be considered in ruling on an indigent litigant's request for counsel include the merits of the case, Plaintiff's efforts to obtain a lawyer, and Plaintiff's ability to gather the facts and present the case if unassisted by counsel. See Cooper v. A. Sargenti Co., 877 F.2d 170, 172 (2d Cir. 1989); Hodge v. Police Officers, 802 F.2d 58, 60-62 (2d Cir. 1986). Of these, the merits are "[t]he factor which command[s] the most attention." Cooper, 877 F.2d at 172.
Because it is too early in the proceedings for the Court to assess the merits of the action, Plaintiff's motion for counsel is denied without prejudice to renewal at a later date.
LEAVE TO AMEND
Plaintiff proceeds in this matter without the benefit of an attorney. District courts generally should grant a self-represented plaintiff an opportunity to amend a complaint to cure its defects, unless amendment would be futile. See Hill v. Curcione, 657 F.3d 116, 123-24 (2d Cir. 2011); Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988). Indeed, the Second Circuit has cautioned that district courts " should not dismiss [a pro se complaint] without granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated." Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (quoting Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999)).
The Court grants Plaintiff leave to file an amended complaint to provide more facts about his claims. Plaintiff must name as the defendants in the caption and in the "Statement of Claim" those individuals who he alleges were involved personally in the deprivation of his federal rights. If Plaintiff does not know the name of a defendant, he may refer to that individual as "John Doe" or "Jane Doe" in both the caption and the body of the amended complaint. The naming of "John Doe" or "Jane Doe" defendants, however, does not toll the three-year statute of limitations period governing this action and Plaintiff shall be responsible for ascertaining the true identity of any "John Doe" or "Jane Doe" defendants and amending his complaint to include the identity of any "John Doe" or "Jane Doe" defendants before the statute of limitations period expires. Should Plaintiff seek to add a new claim or party after the statute of limitations period has expired, he must meet the requirements of Rule 15(c) of the Federal Rules of Civil Procedure.
The caption is located on the front page of the complaint. Each individual defendant must be named in the caption. Plaintiff may attach additional pages if there is not enough space to list all of the defendants in the caption. If Plaintiff needs to attach an additional page to list all defendants, he should write "see attached list" on the first page of the amended complaint. Any defendants named in the caption must also be discussed in Plaintiff's statement of claim.
For example, a defendant may be identified as: "Correction Officer John Doe #1 on duty August 31, 2020, in the Sullivan Correctional Facility clinic, during the 7 a.m. to 3 p.m. shift."
In the "Statement of Claim" section of the amended complaint form, Plaintiff must provide a short and plain statement of the relevant facts supporting each claim against each defendant. Plaintiff should include all of the information in the amended complaint that Plaintiff wants the Court to consider in deciding whether the amended complaint states a claim for relief. That information should include:
At this stage, Plaintiff need not prove his allegations, provide documentary evidence, or cite case law. What the Court requires is a clear and concise recounting of the events giving rise to this complaint, and an explanation of how each named defendant was personally involved in what occurred. Accordingly, Plaintiff need not attach supporting documents or other materials to his amended complaint.
a) the names and titles of all relevant people;
b) a description of all relevant events, including what each defendant did or failed to do, the approximate date and time of each event, and the general location where each event occurred;
c) a description of the injuries Plaintiff suffered; and
d) the relief Plaintiff seeks, such as money damages, injunctive relief, or declaratory relief.
Essentially, Plaintiff's amended complaint should tell the Court: who violated his federally protected rights and how; when and where such violations occurred; and why Plaintiff is entitled to relief. Because Plaintiff's amended complaint will completely replace, not supplement, the original complaint, any facts or claims that Plaintiff wants to include from the original complaint must be repeated in the amended complaint.
CONCLUSION
Plaintiff is granted leave to file an amended complaint that complies with the standards set forth above. Plaintiff must submit the amended complaint to this Court's Pro Se Intake Unit within sixty days of the date of this order, caption the document as an "Amended Complaint," and label the document with docket number 21-CV-02336 (LTS). An Amended Civil Rights Complaint form is attached to this order. No summons will issue at this time. If Plaintiff fails to comply within the time allowed, and he cannot show good cause to excuse such failure, the complaint will be dismissed for failure to state a claim upon which relief may be granted.
The motion for counsel and the unsigned order to show cause are denied without prejudice.
The Clerk of Court is directed to mail a copy of this order to Plaintiff and note service on the docket.
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 in forma pauperis 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). SO ORDERED. Dated: May 17, 2021
New York, New York
/s/ Laura Taylor Swain
LAURA TAYLOR SWAIN
Chief United States District Judge __________ Write the full name of each plaintiff. -against- __________ Write the full name of each defendant. If you cannot fit the names of all of the defendants in the space provided, please write "see attached" in the space above and attach an additional sheet of paper with the full list of names. The names listed above must be identical to those contained in Section IV. ___CV__________
(Include case number if one has been assigned) AMENDED COMPLAINT
(Prisoner) Do you want a jury trial?
[ ] Yes [ ] No
NOTICE
The public can access electronic court files. For privacy and security reasons, papers filed with the court should therefore not contain: an individual's full social security number or full birth date; the full name of a person known to be a minor; or a complete financial account number. A filing may include only: the last four digits of a social security number; the year of an individual's birth; a minor's initials; and the last four digits of a financial account number. See Federal Rule of Civil Procedure 5.2.
I. LEGAL BASIS FOR CLAIM
State below the federal legal basis for your claim, if known. This form is designed primarily for prisoners challenging the constitutionality of their conditions of confinement; those claims are often brought under 42 U.S.C. § 1983 (against state, county, or municipal defendants) or in a "Bivens" action (against federal defendants). [ ] Violation of my federal constitutional rights [ ] Other: __________
II. PLAINTIFF INFORMATION
Each plaintiff must provide the following information. Attach additional pages if necessary. __________
First Name __________
Middle Initial __________
Last Name __________ State any other names (or different forms of your name) you have ever used, including any name you have used in previously filing a lawsuit. __________ Prisoner ID # (if you have previously been in another agency's custody, please specify each agency and the ID number (such as your DIN or NYSID) under which you were held) __________
Current Place of Detention __________
Institutional Address __________
County, City __________
State __________
Zip Code
III. PRISONER STATUS
Indicate below whether you are a prisoner or other confined person: [ ] Pretrial detainee [ ] Civilly committed detainee [ ] Immigration detainee [ ] Convicted and sentenced prisoner [ ] Other: __________
IV. DEFENDANT INFORMATION
To the best of your ability, provide the following information for each defendant. If the correct information is not provided, it could delay or prevent service of the complaint on the defendant. Make sure that the defendants listed below are identical to those listed in the caption. Attach additional pages as necessary. Defendant 1:
__________
First Name
__________
Last Name
__________
Shield #
__________
Current Job Title (or other identifying information)
__________
Current Work Address
__________
County, City
__________
State
__________
Zip Code Defendant 2:
__________
First Name
__________
Last Name
__________
Shield #
__________
Current Job Title (or other identifying information)
__________
Current Work Address
__________
County, City
__________
State
__________
Zip Code Defendant 3:
__________
First Name
__________
Last Name
__________
Shield #
__________
Current Job Title (or other identifying information)
__________
Current Work Address
__________
County, City
__________
State
__________
Zip Code Defendant 4:
__________
First Name
__________
Last Name
__________
Shield #
__________
Current Job Title (or other identifying information)
__________
Current Work Address
__________
County, City
__________
State
__________
Zip Code
V. STATEMENT OF CLAIM
Place(s) of occurrence: __________ Date(s) of occurrence: __________
FACTS:
State here briefly the FACTS that support your case. Describe what happened, how you were harmed, and how each defendant was personally involved in the alleged wrongful actions. Attach additional pages as necessary. __________
INJURIES:
If you were injured as a result of these actions, describe your injuries and what medical treatment, if any, you required and received. __________
VI. RELIEF
State briefly what money damages or other relief you want the court to order. __________
VII. PLAINTIFF'S CERTIFICATION AND WARNINGS
By signing below, I certify to the best of my knowledge, information, and belief that: (1) the complaint is not being presented for an improper purpose (such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation); (2) the claims are supported by existing law or by a nonfrivolous argument to change existing law; (3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and (4) the complaint otherwise complies with the requirements of Federal Rule of Civil Procedure 11. I understand that if I file three or more cases while I am a prisoner that are dismissed as frivolous, malicious, or for failure to state a claim, I may be denied in forma pauperis status in future cases. I also understand that prisoners must exhaust administrative procedures before filing an action in federal court about prison conditions, 42 U.S.C. § 1997e(a), and that my case may be dismissed if I have not exhausted administrative remedies as required. I agree to provide the Clerk's Office with any changes to my address. I understand that my failure to keep a current address on file with the Clerk's Office may result in the dismissal of my case. Each Plaintiff must sign and date the complaint. Attach additional pages if necessary. If seeking to proceed without prepayment of fees, each plaintiff must also submit an IFP application. __________
Dated
__________
Plaintiff's Signature __________
First Name __________
Middle Initial __________
Last Name __________
Prison Address __________
County, City __________
State __________
Zip Code Date on which I am delivering this complaint to prison authorities for mailing: __________