Opinion
12-CV-2684 (ARR) (LB)
06-12-2012
COLVIN McCUTCHEN, Plaintiff, v. WARDEN MARABELL; WARDEN HALL; DEPUTY WARDEN RAMOS; NEW YORK CITY DEPARTMENT OF CORRECTIONS; DORA B. SCHRIRO, Commissioner; WARDEN RIVERA; CAPTAIN HILL; CAPTAIN JOHNSON; CAPTAIN BAO; OFFICER POST; OFFICER REDDICK; OFFICER SWINNEY-CLARK; CAPTAIN BRIM;Defendants.
NOT FOR ELECTRONIC OR PRINT PUBLICATION
MEMORANDUM AND ORDER
ROSS, United States District Judge:
Colvin McCutchen ("plaintiff), currently held at Rikers Island, files this pro se action pursuant to 42 U.S.C. § 1983, alleging that his constitutional rights were violated during his incarceration at West Facility and the Otis Bantum Correctional Center, Central Punitive Segregation Unit. According to his complaint, plaintiff arrived at West Facility on August 11, 2008, and is being held by the Department of Correction for the Office of Mental Health. He alleges that his medical condition was disregarded during the use of force by corrections officers at West Facility on October 6, 2011. Plaintiff also claims that, from October 21, 2011 to January 13, 2012, he was improperly transferred to the Central Punitive Segregation Unit, where, inter alia, he was subjected to inhumane conditions and deprived of religious services, corrections officers took away his legal documents, and he was improperly forced to undergo strip searches. Plaintiff seeks damages and an injunction against further "unconstitutional treatment."
Plaintiffs request to proceed in forma pauperis is granted pursuant to 28 U.S.C. § 1915. His claims against defendants New York City Department of Correction ("DOC") and Commissioner Dora B. Schriro ("Schriro") are dismissed. Plaintiffs claims against the remaining defendants may proceed as set forth below.
STANDARD OF REVIEW
A district court "shall review, before docketing, if feasible or, in any event, as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity." 28 U.S.C. § 1915A. The court is required to read a plaintiffs pro se complaint liberally and to interpret it as raising the strongest arguments it suggests, particularly where, as here, plaintiffs complaint alleges civil rights violations. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Sealed Plaintiff v. Sealed Defendant #1, 537 F.3d 185, 191 (2d Cir. 2008). Upon review, however, a district court shall dismiss a prisoner's complaint sua sponte if the complaint is "frivolous, malicious, or fails to state a claim upon which relief may be granted" or "seeks monetary relief from a defendant who is immune from such relief." Id; Liner v. Goord, 196 F.3d 132, 134 & n.l (2d Cir. 1999) (noting that, under PLRA, sua sponte dismissal of frivolous prisoner complaints is mandatory). Similarly, a district court shall dismiss an in forma pauperis action where it is satisfied that the action "(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B).
DISCUSSION
In order to maintain a claim under 42 U.S.C. §1983, plaintiff must allege the presence of two elements: "(1) the conduct complained of must have been committed by a person acting under color of state law; and (2) the conduct complained of must have deprived a person of rights, privileges or immunities secured by the Constitution or laws of the United States." Pitchell v. Callan, 13 F.3d 545, 547 (2d Cir. 1994).
The DOC is not a proper party to this action because agencies of the City of New York cannot be sued independently under § 1983. See, e.g., Lauro v. Charles, 219 F.3d 202, 205 n.2 (2d Cir. 2000); Bailey v. N.Y.C. Police Dep't, 910 F. Supp. 116, 117 (E.D.N.Y. 1996) (dismissing § 1983 suit against the New York City Police Department and DOC). Plaintiffs claims are therefore dismissed as against the DOC. 28 U.S.C. §§ 1915(e)(2)(B)(ii); 1915A.
Nor is defendant Schriro, the Commissioner of the DOC, a proper defendant to this action. As a prerequisite to a 1983 damage award, a plaintiff must allege a defendant's direct or personal involvement in the alleged constitutional deprivation. Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994). To sustain such a suit, "a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution." Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). Here, although plaintiff names Schriro as a defendant, there is no allegation that Schriro was personally involved in the alleged deprivation of plaintiffs constitutional rights. The claims against her are dismissed. 28 U.S.C. §§ 1915(e)(2)(B)(ii); 1915A.
CONCLUSION
Plaintiffs complaint against defendants DOC and Schriro are dismissed, and no summons shall issue as to these defendants.
Plaintiffs complaint against the remaining defendants may proceed. The Clerk of Court is directed to issue a summons against those defendants, and the United States Marshals Service is directed to serve the complaint and this order on them, without prepayment of fees. A courtesy copy of the same documents shall also be served on the Corporation Counsel for the City of New York, Special Federal Litigation Division.
The case is referred to the Honorable Lois Bloom, United States Magistrate Judge, for pretrial supervision.
The Court certifies, pursuant to 28 U.S.C. § 1915 (a)(3), that any appeal from this order would not be taken in good faith and therefore in forma pauperis status is denied for purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
SO ORDERED.
___________
Allyne R. Ross
United States District Judge
Date: June 12, 2012
Brooklyn, New York
SERVICE LIST:
Plaintiff:
Colvin McCutchen
#21889
9005 Old River Road
CNYPC/ P.O. Box 300
Marcy, NY 13403-0300