Opinion
No. 03-CV-6409Fe.
January 29, 2004
DECISION and ORDER
INTRODUCTION
Plaintiff Fred E. Van Gorder, an inmate of the Groveland 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). 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 service by the U.S. Marshals is ordered with respect to the remaining claims.
PLAINTIFF'S ALLEGATIONS
While plaintiff does not set forth his claims with the specificity to be expected from an attorney, he is proceeding pro se and his complaint is afforded a broader interpretation. Plaintiff sets forth nine claims, which are summarized here. He begins his narrative by alluding to events that occurred in 1999. Thereafter, plaintiff alleges that, on August 16, 2000 at Orleans Correctional Facility ("Orleans"), he was assaulted by Sergeant Austin and placed in SHU. He claims that the next day he was assaulted in his cell by three other officers. He asserts that he was struck in the groin and kidney, and that he was denied medical care for injuries resulting from the assaults. Additionally, he claims that while he was housed in the SHU he was denied basic necessities — meals, clothes, and toiletries. Plaintiff states that he was in pain and urinating blood for several days before he was taken to the hospital. At the hospital, the doctors determined that he had passed a kidney stone, but could not account for all his symptoms. He further suffered from a staph infection.
Plaintiff alleges that he was still urinating blood when he was transferred to Gowanda Correctional Facility("Gownada"), apparently on or about September 1, 2000. His condition worsened, but he was merely given pain medication. At some point, plaintiff was transferred to Collins Correctional Facility (Collins"). Only after he filed a grievance was plaintiff taken to the infirmary at Collins, and diagnosed with an antibiotic-resistant staph infection. Plaintiff asserts that he was given the improper dosage of medications during this time. He alleges that he was in great pain, and without proper treatment for over a month.
On September 11, 2001, plaintiff was taken to a hospital for emergency urinary tract complications. As he was returning to the facility, Officer Szefler placed the restraints on as tightly as possible. Plaintiff attempted to speak with the watch commander about the restraints. Apparently in reaction to plaintiff's complaint, Officer Szefler assaulted plaintiff in front of a Lieutenant and three Sergeants. No one assisted plaintiff. Plaintiff claims that he was denied medical attention after this assault.
Additionally, plaintiff raises First Amendment and "access to court" claims, alleging that Officers Kukoleca and Kishbaugh tampered with his in-coming and out-going legal mail following the September 11, 2001 incident with Officer Szefler. Further Officer Hansen, Sergeant Ryes, and Superintendent Giambruno allegedly denied him access to the law library and legal materials between June 1, 2002 and January 30, 2003, in order to disrupt his pending legal actions.
Between September 11, 2001 and January 1, 2002, plaintiff claims that Gowanda medical personnel forced him to perform "self-catherization" in unsanitary conditions. In addition to the Eighth Amendment medical claims, plaintiff alleges that the prison procedure for resolving his problems resulted in further constitutional claims by wilful violations of his privacy. Plaintiff claims that Inmate Grievance Supervisors Tarbell and Weber disregarded his formal requests for privacy throughout the grievance process. They unnecessarily publically discussed his health care, his medical condition and care in front of other inmates, staff and civilians.
Plaintiff claims that he was subjected to a third assault on January 18, 2003. While another inmate actually carried out the assault, plaintiff claims that Officer Hanson, Sergeant Reyes, Sergeant Nadar and Sergeant Baggs conspired to hire that inmate to attack plaintiff. No one came to plaintiff's aid.
Plaintiff alleges that he made Mr. Annucci, Mr. Eagan, and New York State Attorney General Eliot Spitzer aware of the many violations of his rights. He claims that these defendants violated his constitutional rights by failing to intervene.
Plaintiff is seeking $16,450,000 in monetary damages.
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.
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 several of plaintiff's claims must be dismissed pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b) because they fail to state a claim upon which relief may be granted.
Time Barred Claims
In plaintiff's first claim, he includes allegations regarding events that occurred between July 2, 1999 and August 15, 2000, more than three years prior to the filing of this action. To the extent that plaintiff intended to raise claims concerning these earlier events, such claims are not timely, and are therefore dismissed.
Plaintiff brings this action pursuant to 42 U.S.C. § 1983. Three years is the statute of limitations period for claims asserted under 42 U.S.C. § 1983, see Owens v. Okure, 488 U.S. 235, 251, 109 S.Ct. 573, 582, 102 L.Ed.2d 594 (1989); Jewell v. County of Nassau, 917 F.2d 738, 740 (2d Cir. 1990). Plaintiff's complaint and motion for poor person status are both dated August 16, 2003. Since a pro se prisoner litigant's papers are deemed to have been filed when they are placed in the hands of prison officials for mailing, see Houston v. Lack, 487 U.S. 266, 271, 108 S.Ct. 2379, 2382, 101 L.Ed.2d 245 (1998); see also Dory v. Ryan, 999 F.2d 679, 682 (2d Cir. 1993), modified on reh'g, 25 F.3d 81 (2d Cir. 1994), the Court will assume for purposes of this review that the complaint was filed on August 16, 2003.
§ 1983 Claims
In order to state a claim under § 1983, plaintiff must allege (1) that the challenged conduct was attributable at least in part to a person acting under color of state law, and (2) that such conduct deprived plaintiff of a right, privilege, or immunity secured by the Constitution or laws of the United States. Dwares v. City of New York, 985 F.2d 94, 98 (2d Cir. 1993). A prerequisite for liability under a § 1983 claim is "personal involvement" by the defendants in the alleged constitutional deprivation. Spencer v. Doe, 139 F.3d 107, 112 (2d Cir. 1998).
A defendant may be "personally involved" in causing a constitutional deprivation if: (1) defendant participated directly in the alleged infraction; or (2) acting in a supervisory capacity, defendant (a) failed to remedy a continuing or egregious wrong after learning of a violation, (b) created a policy or custom under which the unconstitutional practices occurred or allowed such policy or custom to continue, or (c) was "grossly negligent" in managing subordinates who actually caused the constitutional deprivation.Candelaria v. Coughlin, 787 F. Supp. 368, 372 (S.D.N.Y. 1992) (citing Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir. 1986)). Plaintiff names Eliot Spitzer, New York State Attorney General as a defendant, but provides no basis to find that he was personally involved in any of the complained-of events. There is no indication that Eliot Spitzer participated directly in any of these events, and he does not serve in a supervisory capacity for DOCS. A claim which fails to demonstrate a defendant's personal involvement in the alleged constitutional deprivation is subject to sua sponte dismissal. Sealey v. Giltner, 116 F.3d 47, 51 (2d Cir. 1997); see Neitzke v. Williams, 490 U.S. 319, 323 n. 2, 109 S. Ct. 1827, 1830 n. 2, 104 L.Ed.2d 338 (1989). Accordingly, the claims against Eliot Spitzer are dismissed.
CONCLUSION
Because plaintiff has met the statutory requirements of 28 U.S.C. § 1915(a) and filed an Authorization with respect to the filing fee, his request to proceed in forma pauperis is hereby granted. For the reasons discussed above, any claims arising prior to August 16, 2000 and plaintiff's claims against Eliot Spitzer are dismissed with prejudice pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A. Plaintiff is directed to identify the "John Doe" defendants through discovery as soon as possible, and then apply to this Court for an order directing amendment of the caption and service on these defendants as soon as they have been identified. The U.S. Marshal is directed to serve the summons and complaint on Dan Workman, Sergeant Austin, Doctor Calkins, Doctor Tan, Officer Szefler, Officer Kishbaugh, Officer Kukoleca, Officer Robert Hansen III, Sergeant Reyes, Superintendent Giambruno, Sergeant Baggs, Sergeant Madar, Jeff Weber, Tarbell, T. Eagen, A. Annucci, and Glenn S. Goord regarding the remaining constitutional claims.
ORDER
IT HEREBY IS ORDERED, that plaintiff's request to proceed in forma pauperis is granted;
FURTHER, that any claims arising prior to August 16, 2000 and plaintiff's claims against Eliot Spitzer are dismissed with prejudice;
FURTHER, that the Clerk of the Court is directed to terminate defendant Eliot Spitzer as party to this action;
FURTHER, that the Clerk of the Court is directed to file plaintiff's papers, and to cause the United States Marshal to serve copies of the Summons, Complaint, and this Order upon Dan Workman, Sergeant Austin, Doctor Calkins, Doctor Tan, Officer Szefler, Officer Kishbaugh, Officer Kukoleca, Officer Robert Hansen III, Sergeant Reyes, Superintendent Giambruno, Sergeant Baggs, Sergeant Madar, Jeff Weber, Tarbell, T. Eagen, A. Annucci, and Glenn S. Goord without plaintiff's payment therefor, unpaid fees to be recoverable if this action terminates by monetary award in plaintiff's favor;
FURTHER, that pursuant to 42 U.S.C. § 1997e(g)(2), the defendants are directed to answer the complaint.
SO ORDERED.