Opinion
5:24-cv-0522 (BKS/TWD)
10-25-2024
DAVID L. KIRBY, III, Plaintiff, v. MAMOUN ABRAHAM,[1] Defendant.
DAVID L. KIRBY, III Plaintiff, pro se Onondaga County Justice Center
DAVID L. KIRBY, III Plaintiff, pro se Onondaga County Justice Center
REPORT-RECOMMENDATION AND ORDER
Therese Wiley Dancks United States Magistrate Judge
I. INTRODUCTION
On April 15, 2024, pro se Plaintiff David L. Kirby, III, commenced this action by filing a complaint naming the Syracuse Police Department as the sole defendant. Dkt. No. 1. Plaintiff did not pay the Court's filing fee or file a motion to proceed in forma pauperis (“IFP”), and the Court administratively closed the case. Dkt. No. 2. Plaintiff subsequently submitted a complete application to proceed IFP, and the case was reopened. Dkt. Nos. 3, 4, 5. On June 14, 2024, the undersigned granted Plaintiffs IFP application and performed an initial review of the complaint. Dkt. No. 6. On June 24, 2024, Plaintiff filed an amended complaint. Dkt. No. 7. In light of Plaintiffs amended complaint, the Court terminated the pending Report-Recommendation, and referred the action back to the undersigned for an initial review of the amended complaint. Dkt. No. 9.
The Court will also consider the two letters, Dkt. Nos. 10 and 11, fded by Plaintiff. See Dkt. No. 12.
II. SUFFICIENCY OF THE AMENDED COMPLAINT
Because Plaintiff is proceeding IFP and is a prisoner suing one or more government employees, his amended complaint must be reviewed in accordance with 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b).
See 28 U.S.C. § 1915A(c) (“As used in this section, the term ‘prisoner' means any person incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms and conditions of parole, probation, pretrial release, or diversionary program.”). Prisoners are not exempt from paying the full filing fee even when they have been granted permission to proceed IFP. See 28 U.S.C. § 1915(b)(1); see also Cash v. Bernstein, No. 09-CV-1922, 2010 WL 5185047, at *1 (S.D.N.Y. Oct. 26, 2010) (“Although an indigent, incarcerated individual need not prepay the filing fee at the time of filing, he must subsequently pay the fee, to the extent he is able to do so, through periodic withdrawals from his inmate accounts.” Id. (citing 28 U.S.C. § 1915(b) wad Harris v. City of New York, 607 F.3d 18, 21 (2d Cir. 2010)).
A. Relevant Legal Standard
The Court shall dismiss a complaint in a civil action if it is frivolous, malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. See 28 U.S.C. § 1915(e)(2)(B)(i)-(iii); 28 U.S.C. § 1915A(b).
A claim is frivolous when it “lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989), abrogated on other grounds by Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007); see also Denton v. Hernandez, 504 U.S. 25, 33 (1992) (holding that “a finding of factual frivolousness is appropriate when the facts alleged rise to the level of the irrational or the wholly incredible”); Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998) (“[A]n action is ‘frivolous' when either: (1) the factual contentions are clearly baseless ... or (2) the claim is based on an indisputably meritless legal theory.”).
To survive dismissal for failure to state a claim, a complaint must contain a short and plain statement of the claim showing that the pleader is entitled to relief. Fed.R.Civ.P. 8(a)(2). This short and plain statement of the claim must be “plausible on its face.” Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The statement of the claim must do more than present “an unadorned, the-defendant-harmed-me accusation.” Id. It must “give the defendant fair notice of what the claim is and the grounds upon which it rests.” Twombly, 550 U.S. at 555 (internal punctuation and citations omitted); see also Fed.R.Civ.P. 8(a)(2).
In determining whether a complaint states a claim upon which relief may be granted, “the court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor.” Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994). “[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.
In reviewing a pro se complaint, the court has a duty to show liberality toward pro se litigants, see Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990) (per curiam), and should exercise “extreme caution ... in ordering sua sponte dismissal of a pro se complaint before the adverse party has been served and both parties (but particularly the plaintiff) have had an opportunity to respond.” Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983) (internal citations omitted).
Generally, before the Court dismisses a pro se complaint or any part of the complaint sua sponte, the Court should afford the plaintiff the opportunity to amend at least once; however, leave to re-plead may be denied where any amendment would be futile. Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993).
B. Summary of the Amended Complaint
Plaintiff utilized the Court's form complaint for civil rights actions under 42 U.S.C. § 1983. Citations to Plaintiffs amended complaint will be to the pagination generated by CM/ECF, the Court's electronic filing system. Unless otherwise indicated, excerpts from the record are reproduced exactly as they appear in the original and errors in spelling, punctuation, and grammar have not been corrected.
Plaintiff brings this action against Defendant John Doe, a Syracuse Police Officer. Dkt. No. 7. In the “Statement of Facts” section, Plaintiff states, in full:
John Doe hit me with his police car while he was off-duty working as an security guard. The results of me getting hit by car my neck, arm on right side and upper body collarbone was hurting very bad. I had to walk to court holding my arm in my left hand after being deny an arm slang by Justice Center medical staff. Also after that I was placed in handcuffs. Also John Doe illegally searched me which is violating my rights 4th Amendment he searched me after hitting me with car and placing me in handcuffs. Then I was sent to hospital. And that is false arrest and false imprisonment.Id. at 4. Plaintiff lists his first claim as “excessive force” and his second claim as “unconstitutional conditions of confinement.” Id. at 5. Plaintiff seeks monetary damages. Id.
On July 2, 2024, Plaintiff filed a letter stating, “Officer Mamoun Abraham was the officer that struck me with deadly force using his car off-duty knowing that he was not supposed to do that.” Dkt. No. 10. On August 14, 2024, Plaintiff filed another letter, stating, in part, “Brandon Hanks used excessive force, violated my 4th Amendment right by his unreasonable search which led to false arrest and false imprisonment because my rights were violated and no probable cause to arrest me.” Dkt. No. 11.
At the top of the letter, Plaintiff lists three civil action numbers: 5:21-cv-886, 5:24-cv-124, and 5:24-cv-522. Dkt. No. 11. Thus, the letter was filed in all three of Plaintiff's cases. The Clerk's Office and the Court should not be tasked with determining which case Plaintiffs filing should be filed in. In this District, if a litigant has more than one action pending, any paper filed in a case must contain and relate to one civil action number unless the civil actions have been consolidated by the Court. Any motion or other papers purporting to relate to more than one action will not be accepted for filing and may be stricken by the Court. N.D.N.Y. L.R. 10.1(c)(1). On August 15, 2024, Plaintiff was advised by Text Order in Kirby v. Hanks, 5:24-cv-0124 (MAD/ML), proper case identification is required for all filings, which should include a case number, case name, and what relief Plaintiff is seeking.
III. ANALYSIS
Plaintiff brings this action pursuant to 42 U.S.C. § 1983 (“Section 1983”), which establishes a cause of action for ‘“the deprivation of any rights, privileges, or immunities secured by the Constitution and laws' of the United States.” German v. Fed. Home Loan Mortg. Corp., 885 F.Supp. 537, 573 (S.D.N.Y. 1995) (citing Wilder v. Virginia Hosp. Assn, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983)) (footnote omitted). “Section 1983 itself creates no substantive rights, [but] . . . only a procedure for redress for the deprivation of rights established elsewhere.” Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993) (citation omitted).
To state a valid claim under Section 1983, a 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. Cnty. of Fidton, 126 F.3d 400, 405 (2d Cir. 1997).
A. Defendant John Doe
The Court has reviewed Dkt. No. 10, wherein Plaintiff has identified the Doe defendant by name. Therefore, the Court construes Dkt. No. 10 as a request to substitute the name of “Mamoun Abraham” for John Doe, which is granted. While piecemeal pleadings are generally not accepted by the Court, an exception will be made since the letter was filed while the amended complaint was still under initial review. The amended complaint will be deemed to name Mamoun Abraham in place of John Doe and the Court will conduct its initial review accordingly.
The Court reaches a different result, however, with respect to Dkt. No. 11. Because Plaintiffs letter includes three civil action numbers, the submission does not include a caption and, based upon the allegations in the letter, it is not clear which action Plaintiff intended this letter to supplement, the Court does not construe Dkt. No. 11 as a request to amend the amended complaint. Moving forward, Plaintiff is advised he may not attempt to amend his pleadings in a piecemeal manner. See L.R. 15.1.
B. Color of State Law
By its terms, Section 1983 applies only where the defendant acts “under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia.” 42 U.S.C. § 1983; Kern v. City' of Rochester, 93 F.3d 38, 43 (2d Cir. 1996) (“[A] plaintiff must allege a violation of rights secured by the Constitution or laws of the United States, and that such violation was committed by a person acting under the color of state law.”). A “defendant in a § 1983 suit acts under color of state law when he abuses the position given to him by the State.” West v. Atkins, 487 U.S. 42, 49-50 (1988). By contrast, “acts of officers in the ambit of their personal pursuits are plainly excluded.” United States v. Giordano, 442 F.3d 30, 42-43 (2d Cir. 2006) (quoting Screws v. United States, 325 U.S. 91, 111 (1945) (plurality opinion)).
“[T]here is no bright line test for distinguishing ‘personal pursuits' from activities taken under color of law.” Pitched v. Cadan, 13 F.3d 545, 548 (2d Cir. 1994). A defendant acts under color of state law for the purposes of Section 1983 when he exercises a power “possessed by virtue of state law and made possible only because the wrongdoer is cloaked with the authority of state law.” Colombo v. O'Connell, 310 F.3d 115, 117-18 (2d Cir. 2002) (citation omitted). The “focus” of the color of law inquiry is on “whether there was an abuse or misuse of a power conferred upon [the state employee] by state authority,” and “look[s] to the nature of the officer's act, not simply his duty status.” Pitched, 13 F.3d at 548-49.
Courts therefore “look at a variety of factors, including, inter alia, whether the officer: (1) was off-duty; (2) identified himself as an officer of the law; (3) was in uniform; (4) was authorized to make an arrest at the time; (5) was carrying handcuffs; (6) was carrying any weapons; (7) flashed a police badge; and (8) placed the plaintiff under arrest or otherwise detained her.” Cotz v. Mastroeni, 476 F.Supp.2d 332, 372 (S.D.N.Y. 2007). An individual engaging in conduct as a private actor can still be liable under Section 1983, but only if he “is a willful participant in joint action with the State or its agents.” Dennis v. Sparks, 449 U.S. 24, 2728 (1980). “Conclusory allegations that [the] private individual conspired or took concerted action with state actors will not suffice” to establish this element. Lienau v. Garcia, No. 12-CV-6572, 2013 WL 6697834, at *5 (S.D.N.Y. Dec. 19, 2013) (citation and internal punctuation omitted).
Mindful of the Second Circuit's instruction that a pro se plaintiffs pleadings must be liberally construed, see, e.g., Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008), the Court assumes for purposes of initial review that defendant Abraham was acting under color of state law.
C. Excessive Force
As noted above, Plaintiff lists excessive force as his first claim. Dkt. No. 7 at 5. “‘[A]ll claims that law enforcement officers have used excessive force ... in the course of an arrest, investigatory stop, or other seizure of a free citizen should be analyzed under the Fourth Amendment and its reasonableness standard.'” Ketcham v. City' of Mount Vernon, 992 F.3d 144, 148-49 (2d Cir. 2021) (quoting Graham v. Connor, 490 U.S. 386, 395 (1989) (emphasis and internal quotation marks omitted)). Examining the reasonableness of the force used “requires careful attention to the facts and circumstances of each particular case, including [1] the severity of the crime at issue, [2] whether the suspect poses an immediate threat to the safety of the officers or others, and [3] whether [the suspect] is actively resisting arrest or attempting to evade arrest by flight.” Id. (quoting Graham, 490 U.S. at 396). An officer may not constitutionally employ “a degree of force beyond that which is warranted by the objective circumstances of an arrest.” Cugini v. City' of New York, 941 F.3d 604, 612 (2d Cir. 2019). Additionally, “[w]hile handcuffs must be reasonably tight to be effective, overly tight handcuffing may constitute excessive force.” Lynch ex rel. Lynch v. City of Mt. Vernon, 567 F.Supp.2d 459, 468 (S.D.N.Y. 2008).
It is well-established “that the use of entirely gratuitous force is unreasonable and therefore excessive.” Tracy v. Freshwater, 623 F.3d 90, 99 n.5 (2d Cir. 2010). But “‘[n]ot every push or shove' amounts to a Fourth Amendment violation. Indeed, a ‘de minimis use of force will rarely suffice to state a Constitutional claim.'” Acosta v. City' of New York, No. 11 Civ. 856, 2012 WL 1506954, at *10 (S.D.N.Y. Apr. 26, 2012) (citing Romano v. Howarth, 998 F.2d 101, 105 (2d Cir. 2005)).
Here, Plaintiffs explanation of the alleged incident with defendant Abraham is conclusory and vague. He has not listed a date on which he was “struck” by the police vehicle and has not described any facts surrounding the alleged incident. Thus, Plaintiff has not provided “a short and plain statement of the claim showing that he is entitled to relief.” Fed.R.Civ.P. 8(a)(2).
Accordingly, the Court recommends dismissal of the excessive force claim without prejudice for failure to state a claim upon which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915(A).
D. False Arrest and False Imprisonment
Liberally construed, Plaintiff alleges he was subjected to “false arrest and false imprisonment.” Dkt. No. 7 at 4. A claim for false arrest or false imprisonment “rest[s] on the Fourth Amendment right of an individual to be free from unreasonable seizures, including arrest without probable cause . . . .” Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996) (citing Lennon v. Miller, 66 F.3d 416, 423 (2d Cir. 1995)). Such claims are one and the same because “[f]alse arrest and false imprisonment overlap; the former is a species of the latter.” Wallace v. Kato, 549 U.S. 384, 388 (2007); see also Jenkins v. City of New York, 478 F.3d 76, 88 n. 10 (2d Cir. 2007) (“False arrest is simply false imprisonment accomplished by means of an unlawful arrest.”) (citation omitted).
“A section 1983 claim for false arrest is substantially the same as a claim for false arrest under New York law.” Jenkins, 478 F.3d at 84 (citing Weyant, 101 F.3d at 852). Accordingly, to state a claim for false arrest and imprisonment, “a plaintiff must show that (1) the defendant intended to confine the plaintiff, (2) the plaintiff was conscious of the confinement, (3) the plaintiff did not consent to the confinement, and (4) the confinement was not otherwise privileged.” Savino v. City of New York, 331 F.3d 63, 75 (2d Cir. 2003) (citing Bernard v. United States, 25 F.3d 98, 102 (2d Cir. 1994)) (internal punctuation omitted). An arrest is privileged if it is based on probable cause. Jenkins, 478 F.3d at 84 (“The existence of probable cause to arrest constitutes justification and is a complete defense to an action for false arrest.”) (internal punctuation and citations omitted). “In general, probable cause to arrest exists when the officers have knowledge or reasonably trustworthy information of facts and circumstances that are sufficient to warrant a person of reasonable caution in the belief that the person to be arrested has committed or is committing a crime.” Weyant, 101 F.3d at 852.
Here, Plaintiff alleges in wholly conclusory fashion he was subject to a false arrest and false imprisonment. He alleges no facts related to his arrest suggesting there was no probable cause for his arrest. Further, to the extent that Plaintiff may be claiming that the alleged unlawful search led to his arrest and, thus, the arrest was unlawful, said claim does not set forth a cognizable false arrest claim because the “fruit of poisonous tree” doctrine applied in criminal cases to exclude evidence derived from an unlawful act-e.g., an unlawful search or seizure- does not apply to § 1983 actions. See Tinsdale v. Hartley, 442 F.Supp.3d 569, 573 (W.D.N.Y. 2020) (citing, inter alia, DiMascio v. City' of Albany, 205 F.3d 1322 (Table), No. 99-7653, 2000 WL 232053, at *1 (2d Cir. 2000) (“We have held . . . that the fruit of the poisonous tree doctrine is inapplicable to civil § 1983 actions.” (internal punctuation omitted))).
Therefore, the Court recommends dismissal of Plaintiff s false arrest or false imprisonment claim without prejudice for failure to state a claim upon which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915(A).
E. Illegal Search
Plaintiff also alleges he was searched “illegally” by defendant Abraham. Dkt. No. 7 at 4. The Fourth Amendment protects individuals “against unreasonable searches and seizures.” U.S. Const, amend. IV. “A warrantless search is ‘per se unreasonable . . . subject to only a few specifically established and well-delineated exceptions.'” United States v. Elliott, 50 F.3d 180, 185 (2d Cir.1996) (quoting Schneckloth v. Bustamante, 412 U.S. 218, 219 (1973)). A search incident to an arrest, however, “constitutes an exception to the warrant requirement” imposed by the Fourth Amendment. Riley v. California, 573 U.S. 373, 382 (2014). Nevertheless, there are limitations upon the scope of an appropriate search incident to an arrest. See Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 652 (1995). Indeed, whether a search incident to an arrest was lawful turns upon whether such search was reasonable. Id. The permissibility of a search “is judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests.” Skinner v. Ry. Labor Executives' Ass 'n, 489 U.S. 602, 619 (1989).
Here, the Court finds Plaintiffs allegations regarding the alleged illegal search are entirely conclusory and insufficient to plead a plausible cause of action. Plaintiff merely alleges that defendant Abraham “searched me which is violating my rights,” Dkt. No. 7 at 4, “but fails to support this assertion with any supporting factual allegations.” Lautman v. Vill. of Saugerties, N.Y., No. 1:13-CV-00264 (MAD), 2014 WL 1653189, at *6 (N.D.N.Y. Apr. 23, 2014) (citing First Nationwide Bank v. Gelt Funding Corp., 27 F.3d 763, 771 (2d Cir. 1994)); see also Cannon v. Wood, No. 9:10-cv-1332 (GTS/RFT), 2011 WL 7071100, *7 (N.D.N.Y. Aug. 12, 2011) (dismissing the plaintiffs illegal search claim where the plaintiff merely “states in a conclusory fashion that he was subjected to an illegal search” and the complaint was “devoid of any factual allegations to support this claim”).
Accordingly, the Court recommends dismissal of Plaintiff s illegal search claim without prejudice for failure to state a claim upon which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915(A).
F. Conditions of Confinement
Plaintiff lists “unconstitutional conditions of confinement” as his second claim. Dkt. No. 7 at 5. Even when liberally construed, it is entirely unclear to the Court what “conditions” Plaintiff claims are “unconstitutional” or who was personally involved in the constitutional violation or when and where the alleged deprivation occurred. Accordingly, the Court recommends dismissal of Plaintiffs condition of confinement claim without prejudice for failure to state a claim upon which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915(A).
G. Rule 10
Plaintiff refers to the “Justice Center medical staff' in the body of the amended complaint. See Dkt. No. 7 at 4. Rule 10(a) of the Federal Rules of Civil Procedure provides that, “the title of the complaint must name all the parties.” Fed.R.Civ.P. 10(a). A party not named in the caption of the complaint is not a party to the action. Abbas v. U.S., No. lO-CV-0141, 2014 WL 3858398, at *2 (W.D.N.Y. Aug. 1, 2014) (holding that the failure to name the individual defendants against whom the plaintiff intends to assert claims makes it “infeasible for the Court to determine which of the individual officers mentioned in the body of the complaint should be deemed to be defendants to which claims”).
Accordingly, the Court does not construe any claims in the amended complaint to be asserted against the Justice Center medical staff. See Whitley v. Krinser, No. 06-CV-0575, 2007 WL 2375814, at *1 (W.D.N.Y. Aug. 15, 2007) (“If people are not also named in the caption of the [ ] complaint, they will not be defendants in the case.”).
Even if the amended complaint was liberally construed to assert a Fourteenth Amendment medical indifference claim against the Justice Center medical staff, the claim would fail for two reasons. First, “[p]leadings that do not differentiate which defendant was involved in the unlawful conduct are insufficient to state a claim.” Ying Li v. City of New York, No. 15-CV-1599, 2017 WL 1208422, at *6 (E.D.N.Y. Mar. 31, 2017); see also Wright v. Orleans Cnty., No. 14-CV-0622, 2015 WL 5316410, at *13 (W.D.N.Y. Sept. 10, 2015) (noting in a Section 1983 case that “[g]roup pleading is insufficient for purposes of Rule 8(a)(2) which requires a short and plain statement of the claim showing that the pleader is entitled to relief' (citation and internal punctuation omitted)); Holmes v. Allstate Corp., No. 1 l-CV-1543, 2012 WL 627238, at *7 (S.D.N.Y. Jan. 27, 2012) (“Rule 8(a) is violated where a plaintiff, by engaging in ‘group pleading,' fails to give each defendant fair notice of the claims against it.”); see, e.g., Little v. Mun. Corp., 51 F.Supp.3d 473, 493-94 (S.D.N.Y. 2014) (dismissing without prejudice excessive force claim asserted against “members of the ‘Special Search Team' and ‘ESU Officers'” and noting that, “[t]o the extent that [plaintiff] does not know the names of the members of the Special Search Team or ESU Officers involved, he may name ‘John Doe' defendants and include as much identifying information as he has knowledge of, for the purpose of filing an amended complaint” should he choose to do so).
Second, to state a Fourteenth Amendment medical indifference claim, a detainee “must meet two requirements: (1) that Plaintiff[ ] had a serious medical need . . ., and (2) that the Defendants acted with deliberate indifference to such needs.” Charles v. Orange Cnty., 925 F.3d 73, 86 (2d Cir. 2019) (citing Estelle v. Gamble, 429 U.S. 97, 105 (1976); and Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir. 2017)). A detainee's medical need is “sufficiently serious” where it “contemplates a condition of urgency such as one that may produce death, degeneration, or extreme pain.” Charles, 925 F.3d at 86 (citing Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996)). To satisfy the deliberate indifference requirement, a pretrial detainee “can allege either that the defendants knew that failing to provide the complained of medical treatment would pose a substantial risk to his health or that the defendants should have known that failing to provide the omitted medical treatment would pose a substantial risk to the detainee's health.” Id. at 87 (emphasis in original).
Here, even if Plaintiff had alleged a defendant's personal involvement, Plaintiffs sparse allegations do not satisfy either prong of a plausible deliberate indifference to medical needs claim. Plaintiffs conclusory allegation that “I had to walk to court holding my arm in my left hand after being deny an arm slang by Justice Center medical staff' is insufficient given that the Second Circuit has made clear that “mere disagreement over the proper treatment does not create a constitutional claim.” Chance, 143 F.3d at 703. “Nor does the fact that an inmate might prefer an alternative treatment, or feels that he did not get the level of medical attention he preferred.” Sonds v. St. Barnabas Hosp. Corr. Health Servs., 151 F.Supp.2d 303, 311 (S.D.N.Y. 2001) (citing Dean v. Coughlin, 804 F.2d 207, 215 (2d Cir. 1986)).
Thus, dismissal without prejudice would also be warranted for failure to state a claim upon which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915(A).
IV. CONCLUSION
For these reasons, the Court recommends Plaintiff's amended complaint be dismissed in its entirety for failure to state a claim upon which relief may be granted. In recognition of his pro se status, the Court also recommends Plaintiff be granted leave to fde a second amended complaint to cure the deficiencies identified above. See Ruffolo, 987 F.2d at 131.
If the District Court adopts this Report-Recommendation, the second amended complaint must comply with Rules 8 and 10 of the Federal Rules of Civil Procedure. Any second amended complaint should contain all factual allegations relevant to Plaintiffs claims, including, when possible, the dates, times, and places of the alleged underlying acts, as well as each individual who committed each alleged wrongful act, and the paragraphs should be correctly numbered. Any second amended complaint should allege facts demonstrating the personal involvement of any named defendant. See Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994). Any second amended complaint will replace the existing amended complaint and must be a wholly integrated and complete pleading that does not rely upon or incorporate by reference any pleading or document previously filed with the Court. See Jeanty v. Sciortino, No. 6:22-CV-319 (BKS/TWD), 2023 WL 2931863, *14 (N.D.N.Y. Apr. 13, 2023).
WHEREFORE, it is hereby
ORDERED that the Clerk provide the Superintendent of the facility, designated by
Plaintiff as his current location, with a copy of Plaintiff's inmate authorization (Dkt. No. 4), and notify the official that this action has been filed and that Plaintiff is required to pay the Northern District of New York the statutory filing fee of $350.00 in installments, over time, pursuant to 28 U.S.C. § 1915; and it is further
Plaintiff will also be required to pay fees he may incur in this action, including copying and/or witness fees.
ORDERED that the Clerk provide a copy of Plaintiff's inmate authorization (Dkt. No. 4) to the Financial Deputy of the Clerk's Office; and it is further
ORDERED that the Clerk update the docket to substitute Mamoun Abraham for John Doe; and it is further
RECOMMENDED that Plaintiffs amended complaint (Dkt. No. 7) be DISMISSED
WITHOUT PREJUDICE pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915(A) for failure to state a claim upon which relief may be granted; and it is further
RECOMMENDED that Plaintiff be granted leave to file a second amended complaint that cures the deficiencies identified in this Report-Recommendation; and it is further
ORDERED that the Clerk provide Plaintiff a copy of this Report-Recommendation and Order, along with copies of the unpublished decisions cited herein in accordance with the Second Circuit decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
Pursuant to 28 U.S.C. § 636(b)(1), Plaintiff has fourteen (14) days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN (14) DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72.
If you are proceeding pro se and are served with this Report-Recommendation and Order by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the Report-Recommendation and Order was mailed to you to serve and file objections. Fed.R.Civ.P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed.R.Civ.P. 6(a)(1)(C).
IT IS SO ORDERED.