Opinion
20-CV-10361 (LLS)
07-02-2021
JINJA J.J. JOHNSON, Plaintiff, v. RAMOS, Shield #1764, Correction Officer, et al., Defendants.
ORDER OF DISMISSAL
LOUIS L. STANTON, United States District Judge:
Plaintiff, who is incarcerated at Rikers Island, is proceeding pro se and in forma pauperis (IFP). Plaintiff filed this complaint under 42 U.S.C. § 1983, alleging that Defendants violated her constitutional rights. By order dated February 25, 2021, the Court directed Plaintiff to amend her complaint to address deficiencies in her original pleading. Plaintiff filed an amended complaint on March 22, 2021, and the Court has reviewed it. The action is dismissed for the reasons set forth below.
STANDARD OF REVIEW
The Court must dismiss a complaint, or portion thereof, that is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b); see Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007). The Court must also dismiss a complaint when the Court lacks subject matter jurisdiction. See Fed.R.Civ.P. 12(h)(3). While the law mandates dismissal on any of these grounds, the Court is obliged to construe pro se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret them to raise the “strongest [claims] that they suggest, ” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474-75 (2d Cir. 2006) (internal quotation marks and citations omitted) (emphasis in original).
DISCUSSION
In the original complaint, the Court construed the complaint as asserting the use of excessive force claim and the failure to protect claim. Plaintiff had alleged that in 2020, correctional staff used pepper spray in an area in which Plaintiff may have been present. Because Plaintiff did not allege that any officer sprayed her, or that she suffered an injury because of the use of pepper spray, the Court concluded that Plaintiff had failed to state a claim against any correction officer with respect to an excessive force claim.
Plaintiff also alleged in the original complaint facts suggesting that correction officers had failed to protect her from another prisoner's assault. But because Plaintiff did not allege any facts suggesting that an individual officer actually failed to protect her from an assault, the Court concluded that Plaintiff had failed to state a claim with respect to this claim as well.
In the amended complaint, Plaintiff does not allege any facts, except that she states that the events giving rise to her claims occurred from October 14, 2020, to October 27, 2020. (ECF 7, at 4.) She also states: “I mailed you paperwork without a claim # I got this paperwork the following week.” (Id.)
As the amended complaint does not cure the deficiencies noted in the February 25, 2021 order to amend, the Court dismisses the amended complaint for failure to state a claim. See 28 U.S.C. § 1915(e)(2)(B)(ii).
District courts generally grant a pro se plaintiff leave to amend a complaint to cure its defects, but leave to amend may be denied if the plaintiff has already been given an opportunity to amend but has failed to cure the complaint's deficiencies. See Ruotolo v. City of New York, 514 F.3d 184, 191 (2d Cir. 2008); Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988). Here, the Court finds that the defects in Plaintiff's amended complaint may be cured with a further amendment and grants Plaintiff 30 days to replead her excessive force and failure to protect claims.
CONCLUSION
Plaintiff's complaint, filed in forma pauperis under 28 U.S.C. § 1915(a)(1), is dismissed for failure to state a claim, see 28 U.S.C. § 1915(e)(2)(B)(ii), with 30 days' leave to replead. A civil judgment will not issue at this time.
The Clerk of Court is directed to mail a copy of this order to Plaintiff and note service on the docket.
SO ORDERED.