ORDER

MICHAEL TELESCA, Senior District Judge

INTRODUCTION

Plaintiff Victor Clarke Ford, Jr. ("plaintiff"), a former inmate of the Attica Correctional Facility ("Attica"), brings this pro se action against the Superintendent of Attica James Conway ("Conway"), the Deputy Superintendent of Programs at Attica T.G. Eagan ("Eagan"), the Assistant Director of the Inmate Grievance Program, Central Office Review Committee ("CORC") Richard Savage ("Savage") and Commissioner of New York State Department of Correctional Services ("DOCS") Glenn Goord ("Goord") (collectively "defendants"), claiming that they violated his constitutional rights in contravention of 42 U.S.C. § 1983. Specifically,

Plaintiff alleges that: (1) defendants repeatedly violated his Eighth Amendment rights when they failed to provide him adequate medical care and by improperly denying grievances he had filed with respect to those failures; (2) that he was held in custody beyond his release date; (3) that he was denied equal protection of the laws when he was prevented from applying for supplemental social security income ("SSI") benefits prior to June 19, 2003; and (4) he was denied reasonable accommodation when defendants modified and/or disregarded a "no shower chair" order. Plaintiff's request that the Court appoint him counsel is denied without prejudice because there is insufficient information before the Court at this time to make the necessary assessment of plaintiff's claims under the standards promulgated by Hendricks v. Coughlin, 114 F.3d 390, 392 (2d Cir. 1997), and Hodge v. Police Officers, 802 F.2d 58 (2d Cir. 1986). Thus, it is plaintiff's responsibility to retain an attorney or press forward with this lawsuit pro se. 28 U.S.C. § 1654.

For the reasons discussed below: (1) plaintiff's request to proceed as a poor person is granted; (2) plaintiff's reasonable accommodation claim (Complaint, First and Second Causes of Action, ¶¶ 5-6), which this Court construes as a claim under Title II of the Americans With Disabilities Act ("ADA"), 42 U.S.C. § 12132) is dismissed with prejudice against the named defendants, pursuant to 28 U.S.C. § 1915(e)(2)(B), unless plaintiff files an amended complaint by April 1, 2004 alleging an ADA Title II claim against the New York State Department of Correctional Services; (3) plaintiff's equal protection claim in relation to his delayed application for SSI benefits (Complaint, Third Cause of Action) is dismissed, unless plaintiff files an amended complaint by April 1, 2004 as directed below; (4) plaintiff's Eighth Amendment claims based on the defendants' alleged failure to provide adequate medical care and failure to rectify such deficiencies (Complaint, First, Second, Fourth, and Fifth Causes of Action, ¶¶ 5, 6, 7-8) are dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B), unless plaintiff files an amended complaint by April 1, 2004 as directed below. Service by the U.S. Marshals is ordered against defendants James Conway, Richard Savage and Glenn Goord with respect plaintiff's claim that he was held in custody beyond his claimed release date (Complaint, Sixth Cause of Action, ¶ 9).

DISCUSSION

However, 28 U.S.C. § 1915(e)(B)(2) instructs the Court to review each case in which in forma pauperis status is granted and dismiss any action that: (1) is frivolous or malicious; (2) fails to state a claim upon which relief may be granted; or (3) seeks monetary relief against a defendant who is immune from such relief. In evaluating the Complaint, the Court must accept as true all factual allegations, and must draw all inferences in plaintiff's favor. See King v. Simpson, 189 F.3d 284, 287 (2d Cir. 1999). Dismissal is inappropriate "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."Conley v. Gibson, 355 U.S. 41, 45-46 (1957). "This rule applies with particular force where the plaintiff alleges civil rights violations or where the complaint is submitted pro se." Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir. 1998).

In order for plaintiff to state a claim under § 1983, he must allege: (1) that the challenged conduct was attributable at least in part to a person acting under color of state law: and (2) that such conduct deprived plaintiff of a right, privilege, or immunity secured by the Constitution or laws of the United States. Dwares v. City of New York, 985 F.2d 94, 98 (2d Cir. 1993). A. First and Second Causes of Action

In his first and second causes of action, plaintiff alleges that he suffered mental anguish and personal pain when Eagen "modified" a request for a reasonable accommodation with respect to a prescribed order for "no shower chair," and that Conway, Bellamy, and Goord disregarded that order. However, he fails to describe the need for and nature of the "no shower chair" reasonable accommodation, as well as the extent of his alleged injury. While plaintiff does not specifically reference Title II of the ADA in his pleadings, this Court construes the first and second causes of action to allege: (1) a violation Title II of the ADA; and (2) a claim of deliberate indifference under the Eighth Amendment.

1. ADA Claims

Title II of the ADA provides, in pertinent part, that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132. While the Supreme Court has held that Title II extends to prisons, See Pennsylvania Dept. of Corrections v. Yeskey, 524 U.S. 206 (1998), the ADA does not provide for liability against individual defendants in either their individual or official capacities. Garcia v. S.U.N.Y. Health Sciences Center of Brooklyn, 280 F.3d 98, 107 (2d Cir. 2001); Sha v. Memorial Sloan-Kettering Cancer Center, 2000 WL 1760883 (S.D.N.Y. Nov. 30, 2000); Parkinson v. Goord, 116 F. Supp.2d 390, 399 (W.D.N.Y. 2000) (citing cases). As such, plaintiff's ADA claims plead First and Second Causes of Action are dismissed in their entirety against defendants Savage, Conway, Bellamy and Goord.

However, plaintiff may file an amended complaint against the proper party — the DOCS — alleging a violation of Title II of the ADA for its alleged failure to provide him a reasonable accommodation. However, in order to set forth a claim under Title II of the ADA, a plaintiff must allege that (1) he is a "qualified individual with a disability" within the meaning of the [ADA]; (2) he is being excluded from participation in, or being denied the benefits of some service, program, or activity by reason of his disability; and (3) the entity that provides the service, program, or activity is a public entity. E.g., Clarkson v. Coughlin, 898 F. Supp. 1019, 1037 (S.D.N.Y. 1995);see also 42 U.S.C. § 12132.

Under the ADA a "disability" is defined as "a physical or mental impairment that substantially limits one or more of the major life activities of such individual." 42 U.S.C. § 12102(2)(A). Moreover, the Second Circuit Court of Appeals has held that Congress has abrogated the State's sovereign immunity under Title II of the ADA only to the extent that the alleged violation "was motivated by discriminatory animus or ill will based on the plaintiff's disability", Garcia, 280 F.3d at 111; see also Sworn v. Western New York Children's Psychiatric Center, 269 F. Supp.2d 152, 156 (W.D.N.Y. 2003); Winokur v. Office of Court Admin., 190 F. Supp.2d 444, 449 (E.D.N.Y. 2002). Accordingly, if plaintiff intends to try to pursue a claim under Title II of the ADA against DOCS his amended complaint must set forth facts, not legal conclusions, that (1) he is an individual with a disability as defined by the ADA — "a physical or mental impairment that substantially limits one or more of the major life activities of such individual", 42 U.S.C. § 12102(2)(A); (2) he was excluded or denied the benefits of some program, activity or service while at Attica on account of his disability; and (3) the alleged violation "was motivated by discriminatory animus or ill will based on [his] disability." The failure by plaintiff to set forth facts with respect to each of these elements of a claim under Title II of the ADA, will lead to the dismissal of any amended claim against DOCS with prejudice.

2. Eighth Amendment Claims

The Eighth Amendment claims alleged in plaintiff's First and Second Causes of Action against defendants Savage, Conway, Bellamy and Goord are dismissed without prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), because they fail to state a claim upon which relief may be granted.

A claim for denial of medical care rises to the level of a constitutional violation only where the facts alleged show that a defendant was deliberately indifferent to a plaintiff's serious medical needs. See Estelle v. Gamble, 429 U.S. 97, 104-05 (1976); Ross v. Kelly, 784 F. Supp. 35, 43-44 (W.D.N.Y. 1992), aff'd, 970 F.2d 896 (2d Cir. 1992), cert. denied, 506 U.S. 1040 (1992). This standard contains both an objective and subjective component. First, a plaintiff's medical needs must be objectively serious. "A serious medical condition exists where `the failure to treat a prisoner's condition could result in further significant injury or the unnecessary and wanton infliction of pain.'" Harrison v. Barkley, 219 F.3d 132, 136-137 (2d Cir. 2000) (quoting Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998) (internal quotation marks omitted)). Second, a plaintiff must adequately allege that the prison official had actual knowledge of plaintiff's serious medical need and was deliberately indifferent to it. See Farmer v. Brennan, 511 U.S. 825, 837 (1994); Brock v. Wright, 315 F.3d 158 (2d Cir. 2003); Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994).

Here, plaintiff fails to allege both a serious medical need and that the defendants had actual knowledge of the need but were deliberately indifferent to it. Moreover, in order to state a claim under § 1983 plaintiff must allege that each of the defendants were personally involved in the alleged constitutional, violation. Wright v. Smith, 21 F.3d 496 (2d Cir. 1994). A supervisory official cannot be liable solely on account of the acts or omissions of his or her subordinates. Id. at 501. In order to establish a claim against an official or employee of DOCS, a plaintiff must allege that the official or employee (1) directly participated in the alleged constitutional violation; (2) failed to remedy a wrong after learning of it; (3) created or maintained of a policy under which unconstitutional acts occurred; (4) was grossly negligent in managing subordinates who committed the unconstitutional acts; or (5) was deliberately indifferent by failing to act on information indicating that unconstitutional acts were occurring. Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995). Here again plaintiff's complaint fails to sufficiently allege how Conway, Bellamy and Goord were personally involved in failing to provide him adequate medical care.

Accordingly, plaintiff must file an amended complaint by April 1, 2004 in which he sufficiently sets forth an Eighth Amendment inadequate medical care deliberate indifference claim against the defendants in relation to their alleged failure to provide an accommodation to a serious medical need. The amended complaint must allege the nature of the serious medical need, how the defendants had actual knowledge of the serious medical need, how each of the defendants were personally involved in the alleged failure to accommodate or adequately provide necessary medical care for said medical need, how the defendants were deliberately indifferent to the medical need — that is, what facts are there to show that the defendants knew of the medical need but consciously disregarded the serious medical need — and what injuries plaintiff suffered as result of the defendants' failure to accommodate or provide adequate medical care. See 42 U.S.C. § 1997e(e) ("[n]o Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury.").

B. Third Cause of Action

Plaintiff also alleges that defendants Conway, Eagan and Goord denied him equal protection of the law when they prevented him from filing an application for SSI benefits until June 19, 2003. However, a state and its instrumentalities may not deny "any person within its jurisdiction the equal protection of the laws." U.S. Const. Amend. XIV. At its core, the Equal Protection clause prohibits the government from treating similarly situated persons differently. See City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985); Sound Aircraft Services, Inc. v. Town of East Hampton, 192 F.3d 329, 335 (2d Cir. 1999); Brady v. Town of Colchester, 863 F.2d 205, 216 (2d Cir. 1988). Generalized allegations are insufficient to make out an equal protection claim. See Crawford-El v. Britton, 523 U.S. 574, 592 (1998) ("When intent is an element of a constitutional violation . . . the primary focus is not on any possible animus directed at the plaintiff; rather, it is more specific, such as an intent to disadvantage all members of a class that includes the plaintiff. . . .").

In order to claim that defendants' conduct violates his equal protection rights, plaintiff must allege that:

(1) . . . compared with others similarly situated, [plaintiff] was selectively treated, and (2) the selective treatment was motivated by an intention to discriminate on the basis of impermissible considerations, such as race or religion, to punish or inhibit the exercise of constitutional rights, or by a malicious or bad faith intent to injure the person.

Plaintiff's allegations are insufficient because he fails to allege that he was somehow treated selectively or differently from others with respect to filing claims for SSI benefits and that the reason he was treated differently or selectively was based on some unlawful characterization, to punish the exercise of some constitutional right or with a bad faith intent to harm him. His complaint simply alleges that he was prevented from applying for SSI benefits until June 2003 in violation of the defendants' own policies and procedures. Accordingly, plaintiff's Third Cause of Action is dismissed unless plaintiff files an amended complaint which sets forth factual, non-conclusory, allegations concerning: (1) how he was treated differently with respect to applying for SSI benefits; (2) what the alleged unlawful or discriminatory reason or reasons for treating him differently were; and (3) how each of the defendants was personally involved in the allegedly discriminatory conduct. The failure to sufficiently and factually allege each of these elements of a future equal protection claim will lead to the dismissal of said claim with prejudice.

C. Fourth and Fifth Causes of Action

Plaintiff further alleges that on November 12 and 16, 2002, defendant Conway denied him adequate medical care and treatment, and that defendants Eagen and Goord denied a subsequent grievance that requested a complete investigation into this alleged lack of adequate medical care. Again, these allegations are insufficient to state a claim under the Eighth Amendment and are dismissed with prejudice unless plaintiff files an amended complaint by April 1, 2004. As set forth above, in order to allege an Eighth Amendment claim alleging a failure to provide adequate medical care, plaintiff must allege: (1) the nature of the serious medical need; (2) how the defendants had actual knowledge of the serious medical need; (3) how each of the defendants was personally involved in the alleged failure to provide necessary medical care; (4) how the defendants were deliberately indifferent to the medical need — that is, what facts are there to show that the defendants knew of the medical need but consciously disregarded the serious medical need; and (5) what injuries plaintiff suffered as result of the defendants' failure to provide adequate medical care. The failure to allege any of these factual elements of a claim under the Eighth Should plaintiff file an amended complaint alleging these Eighth Amendment violations and fail to allege any or all of these elements the Court must dismiss the claims with prejudice.

CONCLUSION

Because plaintiff has met the statutory requirements of 28 U.S.C. § 1915(a), his request to proceed in forma pauperis is granted. For the reasons set forth above, several of plaintiff's claims must be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B) unless he files an amended complaint by April 1, 2004 in which he includes the necessary allegations regarding the First and Second Causes of Action to the extent they allege a Title II ADA claim against DOCS; the First and Second Causes of Action to the extent they allege a failure to provide adequate medical care claim under the Eighth Amendment; the Third Cause of Action to the extent it alleges an equal protection claim; and the Fourth and Fifth Causes of Action to the extent they allege a failure to provide adequate medical claim under the Eighth Amendment, as directed above and in a manner that complies with Rules 8 and 10 of the Federal Rules of Civil Procedure.

Plaintiff is advised that an amended complaint is intended tocompletely replace the prior complaint in the action, and thus it "renders [any prior complaint] of no legal effect."International Controls Corp. v. Vesco, 556 F.2d 665, 668 (2d Cir. 1977), cert. denied sub nom., Vesco Co., Inc. v. International Controls Corp., 434 U.S. 1014 (1978); see also Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir. 1994). Therefore, plaintiff's amended complaint must include all of the allegations against each of the defendants against whom the case is going forward — the Sixth Cause of Action against Conway, Savage and Goord — so that the amended complaint may stand alone as the sole complaint in this action which the defendants must answer.

If plaintiff fails to file an amended complaint as directed, the First through Fifth Causes of Action will be dismissed with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B) and service of the remaining false imprisonment claim (Sixth Cause of Action) shall be directed against Conway, Savage and Goord.

ORDER

IT HEREBY IS ORDERED, that plaintiff's motion to proceed in forma pauperis is granted;

FURTHER, that plaintiff's First and Second Causes of Action to the extent they allege a claim under Title II of the ADA against defendants Savage, Conway, Bellamy and Goord are dismissed with prejudice;

FURTHER, that plaintiff is granted leave to file an amended complaint only as directed above by April 1, 2004;

FURTHER, that the Clerk of the Court is directed to send to plaintiff with this order a copy of the original complaint, a blank § 1983 complaint form, and the instructions for preparing an amended complaint;

FURTHER, that in the event plaintiff fails to file an amended complaint as directed above by April 1, 2004, the claims set forth in the First through Fifth Causes of Action are dismissed with prejudice without further order of the Court and the Clerk of the Court shall terminate defendants Eagen and Bellamy as parties to this action;

FURTHER, that in the event plaintiff has failed to file an amended complaint by April 1, 2004, the Clerk of the Court is directed to cause the United States Marshal to serve copies of the Summons, Complaint, and this Order upon defendants Conway, Savage and Goord, without plaintiff's payment therefor, unpaid fees to be recoverable if this action terminates by monetary award in plaintiff's favor;

FURTHER, that, pursuant to 42 U.S.C. § 1997e(g), the defendants are directed to answer the complaint.

SO ORDERED.