Opinion
No. 04-CV-6192CJS(Fe).
June 24, 2004
MEMORANDUM and ORDER
INTRODUCTION
Plaintiff Michael Baczkowski, an inmate of the Attica 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). Prior to the Court's review of plaintiff's complaint pursuant to 28 U.S.C. § 1915, plaintiff filed another complaint on the forms provided by the Court, which explicitly withdrew his prior Claim Four and added a new Claim Four and a Claim Five. This new complaint is hereby deemed an Amended Complaint (Docket No. 3). The Amended Complaint has now been reviewed pursuant to 28 U.S.C. § 1915. Plaintiff claims that defendants, the New York State Department of Parole, the Department of Correctional Services, Attica Correctional Facility and the Office of Mental Health's Dr. Gumbula, violated his constitutional rights in various ways between 1999 and 2004. Plaintiff seeks monetary damages and, with regard to Claim Two, monetary damages or "to have a secure singleized [sic] treatment plan with single living for privacy due to physical injuries, medical stability upon a 2005 release." For the reasons discussed below, plaintiff's request to proceed as a poor person is granted, several of his claims are dismissed pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A, and unless plaintiff files an amended complaint as directed below, the remaining claims may be dismissed with prejudice pursuant to §§ 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. Section 1915(e)(2)(B) of 28 U.S.C. provides that the Court shall dismiss a case in which in forma pauperis status has been granted if the Court determines that the action (i) is frivolous or malicious; (ii) fails to state a claim upon which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief. In addition, 28 U.S.C. § 1915A(a) requires the Court to conduct an initial screening of "a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity," id., regardless of whether or not the inmate has sought in forma pauperis status under 28 U.S.C. § 1915. Review of the complaint reveals many difficulties, including that it is often confusing and vague, as will be discussed below. First Claim
Plaintiff claims that the New York State Department of Parole violated his constitutional rights when, in 1999, he was maliciously prosecuted on a parole violation and his defense witness was not called, resulting in his spending an additional fifteen months in prison. Plaintiff brings this civil rights action pursuant to 42 U.S.C. § 1983. A federal civil rights action is not the proper vehicle to challenge a revocation of parole, which is the nature of plaintiff's claims here. In essence, plaintiff claims that he was convicted of a parole violation for which he should not have been prosecuted and that his defense witness was not called at his parole violation hearing.
Parole determinations clearly affect the overall length of a prisoner's term of imprisonment. It is well settled that when a litigant makes a constitutional challenge to a determination which affects the overall length of his imprisonment, the "sole federal remedy is a writ of habeas corpus." Preiser v. Rodriguez, 411 U.S. 475, 500 439 (1973). Moreover, a prisoner may not circumvent the exhaustion prerequisites for habeas corpus relief by suing under 42 U.S.C. § 1983 for injunctive or declaratory relief or for damages. Id., at 489-90; see Heck v. Humphrey, 512 U.S. 477 (1994). Thus, to the extent that plaintiff's claim is that the defendants have revoked his parole in an unconstitutional manner, the complaint must be dismissed.
Even if plaintiff's complaint did state a cognizable constitutional claim, the claim would nevertheless be dismissed because officials of the Parole Board are entitled to absolute immunity from liability for damages for their decisions to grant, deny or revoke parole. Montero v. Travis, 171 F.3d 757, 760 (2d Cir. 1999).
In addition, in New York, a prison inmate has no protected liberty interest in parole. Boothe v. Hammock, 605 F.2d 661, 664 (2d Cir. 1979). The Parole Board has broad discretion to grant or revoke parole under the applicable statutory scheme and, under the statutory framework, prisoners in New York have no legitimate expectation of release prior to the conclusion of their sentences. See, e.g., Barna v. Travis, 239 F.3d 169 (2d Cir. 2001). Plaintiff's claims concerning the fact and manner of his prosecution for a parole violation are dismissed with prejudice.
Second Claim
The facts plaintiff has provided are too limited to allow the Court to determine if he can state a claim. Plaintiff claims that Ed Wing, Discharge Coordinator for Attica Correctional Facility, violated his rights when, in 2002, he failed to prepare a feasible discharge plan, resulting in plaintiff being released to a County where he knew no one, had no place to sleep and spent the first night outdoors because the Department of Social Services (DSS) was closed by the time he arrived in the County. Plaintiff was then sent to an Albany County mission, where his medication was stolen. Plaintiff's claim that the Department of Parole violated his rights in this manner is subject to dismissal with prejudice. Plaintiff's allegations do not state a claim for relief. First, it is not clear from the facts alleged that plaintiff has raised a constitutional claim. Second, it is not clear from the facts alleged that Ed Wing was responsible for the unfortunate things that happened to plaintiff upon his discharge, even if they do state a constitutional claim. Although plaintiff alleges that he needed certain public assistance and the bus arrived in Saratoga County too late in the day for him to seek assistance at the DSS in Saratoga County, it is not clear what Ed Wing's involvement was in the events that resulted in plaintiff spending his first night upon release from prison under a bridge, or, as plaintiff suggests, the responsibility of the Parole Department, or even a combined role.
Plaintiff names Ed Wing, Attica Correctional Facility Discharge Coordinator, in the allegations section of the complaint related to this claim, but he is neither named in the Caption, nor the Parties section of the complaint.
It may be that plaintiff is alleging that Ed Wing failed to prepare any realistic discharge plan for him, and that the failure to do so violated his constitutional rights. He may be alleging that because plaintiff is mentally ill, Mr. Wing was required to prepare a more particular discharge plan, and that although Mr. Wing was responsible for preparing that plan, he failed to do that, knowing that the failure to do so would result in a violation of plaintiff's constitutional rights. As stated above, the facts provided are too limited to allow the Court to determine if plaintiff can state a claim. 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 must state specifically what it was that Ed Wing or other defendants were responsible for, what happened, and how plaintiff was damaged. For example, if the bus arrived too late for plaintiff to seek assistance at DSS, plaintiff must say if defendant Wing was responsible for that, how and how that violated his constitutional rights. If plaintiff was ill and defendant was required to provide a transitional plan that ensured that he was cared for, plaintiff must spell that out in order to help the Court determine whether a constitutional right was involved.
Third Claim
Plaintiff's allegations in this claim are confused and vague; the defendants cannot be expected to defend against the complaint in its current form because it fails to give them fair notice of the claims against them. Plaintiff seems to allege that defendants Department of Correctional Services (DOCS), Attica Correctional Facility violated his constitutional rights when, in 2004, after writing letters to, among others, the Office of Mental Health (OMH), DOCS and Attica's Administrator Woeller complaining that he was in danger, he was involved in a fight with another inmate because staff had been telling inmates that he was a snitch and a child molester. Subsequently, a correctional officer falsely accused plaintiff of assaulting him when the officer assaulted and injured plaintiff, whose head was flattened from having been put into a wall and who suffered lumps and a cut. Plaintiff was sentenced to 12 months in the Special Housing Unit (SHU). Plaintiff alleges the administration failed to protect him from some or all of such behavior when he had warned them that his safety was in danger. Plaintiff's claim is subject to dismissal. The Federal Rules of Civil Procedure require that a complaint contain "a short and plain statement of the claim showing that the pleader is entitled to relief," Fed.R.Civ.P. 8(a)(2), and that each averment be "concise, and direct," Fed.R.Civ.P. 8(e)(1). "The function of pleadings under the Federal Rules is to give fair notice of the claim asserted. Fair notice is that which will enable the adverse party to answer and prepare for trial, allow the application of res judicata, and identify the nature of the case so it may be assigned the proper form of trial." 2A Moore's Federal Practice P 8.13, at 8-58 (2d ed. 1994); see Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988) ("principal function of pleadings under the Federal Rules is to give the adverse party fair notice of the claim asserted so as to enable him to answer and prepare for trial"). When a complaint fails to comply with these requirements, the district court has the power, on motion or sua sponte, to dismiss the complaint. See Simmons v. Abruzzo, 49 F.3d 83, 86-87 (2d Cir. 1995); Salahuddin v. Cuomo, 861 F.2d at 42. "Dismissal, however, is usually reserved for those cases in which the complaint is so confused, ambiguous, vague, or otherwise unintelligible that its true substance, if any, is well disguised," Salahuddin, 861 F.2d at 42, and "if the court dismisses the complaint for failure to comply with Rule 8, it should generally give the plaintiff leave to amend . . . especially . . . when the complaint states a claim that is on its face nonfrivolous," Simmons, 49 F.3d at 86-87.
The Court will permit plaintiff to file an amended complaint in which the necessary allegations regarding this issue are included. Plaintiff has not said to whom, specifically, he complained, when, and how. He has not made clear what he apprised the officials that he was concerned about and why. This is information the Court needs to determine if plaintiff has stated a claim that he sufficiently put specific defendants on notice of a particular concern from which they were responsible to protect him. Plaintiff is alleging that he was put in danger by prison employees because they passed information to other inmates that he was a snitch and a child molester. However, he neither names, nor describes, these individuals. Plaintiff also alleges either that he was set up for a false assault charge and assaulted, or that correctional officer Heberlein engaged in excessive force. It is not clear which. And, with respect to this claim, plaintiff has not named any individual responsible for his harm; he has only named DOCS as a defendant. Plaintiff must allege specifically what each defendant did, or did not do, and how it harmed him. He must be sure to name each defendant he hopes to hold liable in the Caption of the Second Amended Complaint. If he does not know the names of individuals he would like to hold liable, then he may name them as John or Jane Does and describe them by appearance, shift, etc. sufficient for them to be identified during discovery.
Fourth Claim
The Fourth Claim alleges that Dr. Gumbula, a physician at Attica Correctional Facility, failed to employ proper weaning procedures to withdraw him from a certain medication, resulting in cold sweats, nausea and vomiting. Plaintiff appears to be alleging state court tort claims. Without more, this fails to provide a basis for a federal claim, since mere negligence on the part of state officials is not actionable under § 1983. Daniels v. Williams, 474 U.S. 327, 330-31 (1986). Even if this claim demonstrated that the defendant had committed medical malpractice, plaintiff is foreclosed from raising the claim in federal court since a medical malpractice claim is a type of negligence claim and is a state court tort claim, not a federal claim. Id. Plaintiff's claim that Dr. Gumbula was negligent is dismissed with prejudice.
Fifth Claim
The Fifth Claim is that an old injury was worsened when plaintiff slipped in a large water spill in a hall. Plaintiff further alleges that a facility physician examined him and sent him back to his cell without referring him for a consult to a surgeon and that the injury has caused him discomfort. Plaintiff's claim that DOCS was negligent is dismissed with prejudice. As with Claim Four, the claim that DOCS failed to clean up a spill that caused plaintiff to slip alleges, at most, negligence, which is not cognizable in an action pursuant to § 1983.
Plaintiff's claim that he was denied medical care is subject to dismissal as well. A claim of inadequate medical care rises to the level of a constitutional violation only where the facts alleged show that defendant was deliberately indifferent to a plaintiff's serious medical needs. Estelle v. Gamble, 429 U.S. 97, 104-05 (1976). See also Ross v. Kelly, 784 F. Supp. 35, 43-44 (W.D.N.Y.), aff'd, 970 F.2d 896 (2d Cir.), cert. denied, 506 U.S. 1040 (1992). "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)). The Second Circuit pointed out that
[medical] conditions . . . vary in severity and . . . a decision to leave a condition untreated will be constitutional or not depending on the facts of the particular case. Thus, a prisoner with a hang-nail has no constitutional right to treatment, but if prison officials deliberately ignore an infected gash, "the failure to provide appropriate treatment might well violate the Eighth Amendment."Id. (quoting Chance, 143 F.3d at 702).
Plaintiff's allegation is insufficient to indicate that the defendants chose to ignore a medical problem that could lead to plaintiff's further injury or the infliction of pain. The slip and resulting discomfort apparently occurred only approximately two weeks before the complaint was filed. In addition, plaintiff has not asked that DOCS or a specific defendant be required to provide him medical care. Rather, he seeks monetary damages for a period of discomfort while he was in SHU. The Court finds that plaintiff's injuries do not constitute a serious medical need. An isolated failure to provide medical treatment, without more, is generally not actionable unless "the surrounding circumstances suggest a degree of deliberateness, rather than inadvertence, in the failure to render meaningful treatment." Gil v. Mooney, 824 F.2d 192, 196 (2d Cir. 1987). The Court finds that the circumstances surrounding plaintiff's medical situation also do not suggest any degree of deliberateness. Therefore, plaintiff has failed to allege a constitutional violation. Plaintiff's medical claims are hereby dismissed. However, the Court will permit plaintiff to amend the complaint if he believes that he can allege facts which would state a claim.
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 claims against the New York State Department of Parole and Dr. Gumbula are dismissed with prejudice. In addition, plaintiff's claims against the Department of Correctional Services, Ed Wing, and Attica Correctional Facility may be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B) unless he files an amended complaint which includes the necessary allegations regarding his discharge from Attica Correctional Facility in 2002, the events alleged in Claim Three which involve failure to protect and assault and/or excessive force claims, and the denial of medical care claims in Claim Five, 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). 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 may 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's claims against the New York State Department of Parole and Dr. Gumbula are dismissed with prejudice;
FURTHER, that plaintiff is granted leave to file an amended complaint as to only his claims regarding his discharge from Attica Correctional Facility in 2002, the events alleged in Claim Three, and the denial of medical care claims in Claim Five as directed above by July 28, 2004;
FURTHER, that the Clerk of the Court is directed to send to plaintiff with this order a copy of the amended complaint, a blank § 1983 complaint form, and the instructions for preparing an amended complaint.
SO ORDERED.