Opinion
No. 04-CV-0189A(SC).
June 17, 2004
MEMORANDUM and ORDER
INTRODUCTION
Plaintiff Rodney Alford, an inmate of the Collins Correctional Facility, has filed this pro se action seeking relief under 42 U.S.C. § 1983 (Docket No. 1) and has both requested permission to proceed in forma pauperis and filed a signed Authorization (Docket No. 2). Plaintiff claims that the defendant, James L. Berbary, violated his constitutional rights by subjecting him to disciplinary proceedings in retaliation for a state lawsuit. For the reasons discussed below, plaintiff's request to proceed as a poor person is granted, and, unless plaintiff is files an amended complaint as directed below, the complaint will be dismissed with prejudice pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A.
DISCUSSION
Because plaintiff has met the statutory requirements of 28 U.S.C. § 1915(a) and filed an Authorization with respect to this action, plaintiff is granted permission to proceed in forma pauperis. Sections 1915(e)(2)(B) and 1915A(a) of 28 U.S.C. require the Court to conduct an initial screening of this complaint. Plaintiff brings this action pursuant to 42 U.S.C. § 1983. "To state a valid claim under 42 U.S.C. § 1983, the plaintiff must allege that the challenged conduct (1) was attributable to a person acting under color of state law, and (2) deprived the plaintiff of a right, privilege, or immunity secured by the Constitution or laws of the United States." Whalen v. County of Fulton, 126 F.3d 400, 405 (2d. Cir. 1997) (citing Eagleston v. Guido, 41 F.3d 865, 875-76 (2d Cir. 1994)).
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 not appropriate "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, 78 S. Ct. 99, 2 L.Ed.2d 80 (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). Based on its evaluation of the complaint, the Court finds that plaintiff's claims must be dismissed pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b) unless plaintiff files an amended complaint as directed below.
Plaintiff alleges that he has been subjected to repeated disciplinary proceedings in retaliation for filing a lawsuit against defendant. Plaintiff maintains that for years prior to the lawsuit, he was not changed with any disciplinary violation, but that since he filed the lawsuit he has been placed in disciplinary confinement more than six times. He argues that the disciplinary charges are false and are brought against him at the direction of Superintendent Berbary. Thus, plaintiff offers more than circumstantial proof; he also presents direct evidence of retaliation. His allegations, if credited, supply a "`specific, nonconclusory factual allegation' that establish[es] improper motive." Crawford-El v. Britton, 523 U.S. 574 (1998); see Colon v. Coughlin, 58 F.3d 865, 872-873 (2d Cir. 1995).
Nevertheless, plaintiff does not provide any details regarding the nature or extent of the confinement. Thus, plaintiff has not established that he possessed a protected liberty or property interest and that he was deprived of that interest without due process. Bedoya v. Coughlin, 91 F.3d 349, 351-52 (2d Cir. 1996); Frazier v. Coughlin, 81 F.3d 313, 316 (2d Cir. 1996). In order to establish the existence of a protected liberty interest, plaintiff must (1) "establish that the confinement or restraint complained of creates an `atypical and significant hardship . . . in relation to the ordinary incidents of prison life;'" Cruz v. Gomez, 202 F.3d 593, 597 (2d Cir. 2000) (quoting Sandin v. Conner, 515 U.S. 472, 484 (1995)), and (2) "establish that `the state has granted its inmates, by regulation or by statute, a protected liberty interest in remaining free from that confinement or restraint,'" id. (quoting Frazier, 81 F.3d at 317). Thus, plaintiff's complaint is subject to dismissal.
However, the Court will permit plaintiff to file an amended complaint in which the necessary allegations regarding this issue are included. Davidson v. Flynn, 32 F.3d 27, 31 (2d Cir. 1994) ("Sparse pleadings by a pro se litigant unfamiliar with the requirements of the legal system may be sufficient at least to permit the plaintiff to amend his complaint to state a cause of action"); Fed.R.Civ.P. 15(a) (leave to amend "shall be freely given when justice so requires"). Plaintiff should provide details regarding the individual sentences and the circumstances of his disciplinary confinements, and provide the total amount of disciplinary confinement to which he has been subjected. See Sealey, 197 F.3d at 587 (aggregating two terms of confinement); Giano v. Selsky, 238 F.3d 223, 226 (2d Cir. 2001) (aggregating periods of confinement at two different facilities). Only upon a finding that plaintiff has a liberty interest in remaining free from the disciplinary confinement, does the Court conduct an analysis of whether the protective procedures afforded to plaintiff at his disciplinary hearing passed constitutional muster. Carter v. Carriero, 905 F. Supp. 99, 103 (W.D.N.Y. 1995) (quoting Kentucky Dep't of Corrections v. Thompson, 490 U.S. 454, 460 (1989)).
Also, plaintiff is seeking to be transferred to another facility rather than monetary damages. He notes in a letter to the Court that this relief is not available in a § 1983 action. Such relief, if available at all, is more properly sought through New York State Article 78 proceeding.
CONCLUSION
Because plaintiff has met the statutory requirements of 28 U.S.C. § 1915(a) and filed an Authorization, his request to proceed in forma pauperis is granted. For the reasons set forth above, plaintiff's complaint must be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B) unless he files an amended complaint by July 27, 2004 in which he includes the necessary allegations regarding his claims 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 to completely 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); 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 so that the amended complaint may stand alone as the sole complaint in this action which the defendants must answer.
Plaintiff is forewarned that if he fails to file an amended complaint as directed, the complaint will be dismissed with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B). Plaintiff is further forewarned that his right to pursue further relief in federal court at public expense will be greatly curtailed if he has three actions or appeals dismissed under the provisions of 28 U.S.C. § 1915(e)(2)(B). See 28 U.S.C. § 1915(g).
ORDER
IT HEREBY IS ORDERED, that plaintiff's motion to proceed in forma pauperis is granted;
FURTHER, that plaintiff is granted leave to file an amended complaint as directed above by July 27, 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 July 27, 2004, the complaint shall be dismissed with prejudice without further order of the Court;
FURTHER, that in the event the complaint is dismissed because plaintiff has failed to file an amended complaint by July 27, 2004, the Clerk of the Court shall close this case as dismissed with prejudice without further order; and
FURTHER, that in the event the complaint is dismissed because plaintiff has failed to file an amended complaint by July 27, 2004, the Court hereby certifies, pursuant to 28 U.S.C. § 1915(a), that any appeal from this Order would not be taken in good faith and leave to appeal to the Court of Appeals as a poor person is denied. Coppedge v. United States, 369 U.S. 438 (1962). Further requests to proceed on appeal in forma pauperis should be directed on motion to the United States Court of Appeals for the Second Circuit in accordance with Rule 24 of the Federal Rules of Appellate Procedure.
SO ORDERED.