# Myers v. Hill

> District Court, N.D. New York · February 3, 2021

URL: https://www.frixlaw.com/law-library/cases/10313519

## Case

- **Court:** District Court, N.D. New York
- **Decided:** February 3, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10313519

## How later opinions describe it (automated extraction)

- holding that a county public defender does not act under color of state law when performing traditional advocacy functions in a criminal proceeding

## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
MICHAEL MYERS,

Plaintiff, 9:20-CV-1214
(BKS/DJS)
v.
TEVIN HILL,
Defendant.
APPEARANCES:
MICHAEL MYERS
13462261604
Plaintiff, pro se
Central New York Psychiatric Center
P.O. Box 300
Marcy, NY 13403
HON. LETITIA A. JAMES BRENDA T. BADDAM, ESQ.
New York State Attorney General Assistant Attorney General
Attorney for Defendant Hill
The Capitol
Albany, NY 12224
BRENDA K. SANNES
United States District Judge
DECISION AND ORDER
I. INTRODUCTION
On or about October 5, 2020, pro se plaintiff Michael Myers ("plaintiff"), an individual
civilly committed to the Central New York Psychiatric Center ("CNYPC"), commenced this
action with the filing of a complaint, accompanied by an application to proceed in the action
in forma pauperis ("IFP"). Dkt. Nos. 1-2. On November 24, 2020, the Court issued a
Decision and Order granting plaintiff's IFP application and accepting plaintiff's complaint only
to the extent that it asserted Fourteenth Amendment excessive force and state law assault
claims against defendant Tevin Hill, who is employed at CNYPC. Dkt. No. 3 ("November
Order") at 6, 13. The remaining causes of action asserted in plaintiff's complaint were

dismissed without prejudice for failure to state a claim upon which relief may be granted
pursuant to 28 U.S.C. § 1915 ("Section 1915"). Id. at 14.
On December 28, 2020, the Court received plaintiff's amended complaint, which is
accepted for filing. Dkt. No. 5 ("Am. Compl."). The Clerk has now forwarded plaintiff's
amended complaint to the Court for review.
II. PLAINTIFF'S AMENDED COMPLAINT
A. Governing Legal Standard

The legal standard governing the review of a pro se plaintiff's complaint pursuant to
Section 1915 was discussed at length in the November Order and will not be restated in this
Decision and Order. November Order at 2-3.
. B. Summary of the Amended Complaint
The allegations set forth in plaintiff's amended complaint are generally the same as
those included in his original complaint. At all times relevant to this action, plaintiff was
confined in CNYPC. The amended complaint names the following individuals as defendants:

(1) CNYPC Treatment Assistant ("TA")-1 Tevin Hill,1 (2) TA-1 Morgan, (3) TA-2 Supervisor
Wilson, (4) TA-2 Supervisor Amy Bennidict, (5) Mental Hygiene Legal Services ("MHLS")

1 Although the original and amended complaints list this defendant's first name as "Travis," the record
now reflects that his correct first name is "Tevin." See Dkt. Nos. 9-10.
2
Attorney Megan Dorr, (6) MHLS Attorney Lawrence Sheets, and (7) CNYPC Director of Risk
Management Alyssa Mosnal. Id. at 2-4. The following facts are as alleged in the amended
complaint.
On September 24, 2020, at approximately 5:30 p.m., plaintiff observed defendants

Morgan and Hill were not wearing face masks to reduce the transmission of COVID-19. Am.
Compl. at 4. Plaintiff asked defendant Wilson, who supervises defendants Morgan and Hill,
why she was not directing Morgan and Hill to wear their masks. Id. Defendant Wilson
responded by telling plaintiff she did not have the authority "to force them to wear a mask"
but that she would speak to them again about doing so. Id.
Later in the day on September 24, 2020, defendant Hill yelled at plaintiff for
complaining to defendant Wilson. Id. at 4. Plaintiff asked both defendants Hill and Morgan

to speak to a supervisor, and both refused. Id. at 5. When plaintiff then told defendant
Morgan that he was "having a mental distress and need[ed] to see a doctor as soon as
possible," defendant Morgan refused to summon help. Id. Plaintiff was asked to return to
his room and wait for a supervisor. Id. Although defendant Bennidict, a supervisor, arrived
on plaintiff's unit, she did not speak to plaintiff while she was there. Id. Defendant Morgan
told plaintiff that defendant Bennidict "instructed [defendants] Morgan and . . . Hill to write
[plaintiff] up for complaining [and] . . . grandstanding." Id. at 5-6. Defendant Hill then "took
[plaintiff] into the dayroom and slapped [plaintiff] on [the] right side of [his] face." Id. at 6.

Plaintiff reported defendant Hill's assault to defendant Wilson, who did not take any
action. Am. Compl. at 6. Plaintiff also reported the assault to defendant Mosnal, the Director
of Risk Management. Id. at 7. Defendant Mosnal told plaintiff that Risk Management would
3
not investigate the incident. Id. Plaintiff also reported the assault to defendants Dorr and
Sheets, attorneys for MHLS. Id. at 6. Both defendants Dorr and Sheets refused plaintiff's
requests for assistance. Id. at 8. Defendant Dorr also has ignored plaintiff's requests for
assistance with his Article 10 petition.2 Id. at 9. Plaintiff alleges that CNYPC "will not create

a law library [or] train anyone in the law because that[ i]s . . . assigned to attorneys at
[MHLS]." Id.
The Court has liberally construed plaintiff's amended complaint to assert the following
causes of action: (1) Fourteenth Amendment excessive force against defendant Hill; (2)
Fourteenth Amendment failure to protect against defendants Wilson, Bennidict, Mosnal,
Dorr, and Sheets; (3) First Amendment access to courts against defendants Dorr and
Sheets; and (4) denial of legal assistance and/or legal malpractice against defendants Dorr

and Sheets.3 Am. Compl. at 10. For a complete statement of plaintiff's claims, reference is
made to the amended complaint.
C. Analysis

2 The New York Sex Offender Management and Treatment Act ("SOMTA"), which is codified in Article
10 of the New York Mental Hygiene Law ("MHL"), authorizes and governs the civil management of certain sex
offenders after they complete their terms of imprisonment. Mental Hygiene Legal Serv. v. Cuomo, 785 F.
Supp. 2d 205, 210 (S.D.N.Y. 2011), vacated on other grounds by Mental Hygiene Legal Servs. v.
Schneiderman, 472 F. App'x 45 (2d Cir. 2012). Section 47.03 of the MHL charges MHLS to perform certain
duties, including "provide legal services and assistance . . . related to the admission, retention, and care and
treatment" of those individuals detained in state custody under Article 10 beyond the completion of their term of
imprisonment. MHL § 47.03(c). The Court has liberally construed plaintiff's amended complaint to allege that
defendant Dorr has not fulfilled her obligations under Section 47.03 by, among other things, ignoring plaintiff's
requests for assistance with his Article 10 petition.
3 Although plaintiff's amended complaint cites the Eighth Amendment in support of some of his claims,
as a civilly confined resident at CNYPC, the Eighth Amendment, which prohibits the "cruel and unusual
punishment of those convicted of crimes, is . . . not applicable under the circumstances." Lane v. Carpinello,
No. 07-CV-0751, 2009 WL 3074344, at *18 (N.D.N.Y. Sept. 29, 2009) (citing Youngberg v. Romeo, 457 U.S.
307, 312 (1982)). Instead, plaintiff's claims purportedly predicated on the Eighth Amendment are analyzed
under the Due Process Clause of the Fourteenth Amendment. See Lane, 2009 WL 3074344, at *18 (citing
Dove v. City of New York, No. 03-CV-5052, 2007 WL 805786, at *7 (S.D.N.Y. Mar. 15, 2007)).
4
In part, plaintiff brings this action pursuant to 42 U.S.C. § 1983 ("Section 1983"),
which, as explained in the October Order, establishes a cause of action for "the deprivation
of any rights, privileges, or immunities secured by the Constitution and laws" of the United
States. 42 U.S.C. § 1983. "Section 1983 itself creates no substantive rights[ but] provides .

. . only a procedure for redress for the deprivation of rights established elsewhere." Sykes v.
James, 13 F.3d 515, 519 (2d Cir. 1993).
1. Excessive Force
Mindful of the Second Circuit's instruction that a pro se plaintiff's pleadings must be
liberally construed, see, e.g., Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d
Cir. 2008), the Court will require a response to plaintiff's Fourteenth Amendment excessive
force and state law assault claims asserted against defendant Hill. In so ruling, the Court

expresses no opinion as to whether these claims can withstand a properly filed dispositive
motion.
2. Failure to Protect
As noted in the November Order, "[c]ourts in the Second Circuit have acknowledged
that it is unclear whether a failure to protect claim set forth by a civilly-committed individual
should be analyzed under a 'substantial departure standard,' a general substantive due
process standard or under the standard of deliberate indifference." G.B. v. DiPace, No. 14-

CV-0500, 2019 WL 1385840, at *3 (N.D.N.Y. Mar. 27, 2019). As in the November Order, the
Court need not decide at this juncture what standard to apply because, under any of the
standards, plaintiff's amended complaint fails to state a cognizable claim.
While the amended complaint clearly asserts a failure to protect claim against
5
defendants Wilson, Bennidict, Mosnal, Dorr, and Sheets, see Am. Compl. at 10, the pleading
does not contain any allegations supporting the claim. Like plaintiff's original complaint, the
amended complaint does not clearly describe the facts giving rise to the claim. With respect
to any purported suggestion that defendants Wilson, Bennidict, Mosnal, Dorr, and Sheets
should have protected plaintiff from defendant Hill's assault on September 24, 2020, there

are no allegations in the amended complaint plausibly alleging that any of the defendants (1)
deviated from accepted professional judgment by way of ignoring signs or warnings that
defendant Hill may assault plaintiff; (2) acted in a manner that would infer an intention to
injure plaintiff; or (3) acted with deliberate indifference to any knowledge or information that
plaintiff was at imminent risk of serious harm from defendant Hill. The amended complaint
simply fails to allege that there was any reason to know that defendant Hill would assault
plaintiff on September 24, 2020, and that defendants Wilson, Bennidict, Mosnal, Dorr, and
Sheets ignored that information. See Parris v. N.Y.S. Dep't of Corr. Servs., 947 F. Supp. 2d

354, 363 (S.D.N.Y. May 23, 2013) (dismissing a failure to protect claim based on allegations
that the plaintiff was the victim of a surprise attack by another inmate).
To the extent that plaintiff seeks to assert claims against defendants Wilson,
Bennidict, Mosnal, Dorr, and Sheets based on allegations that those individuals did not take
any action after the assault occurred upon learning about it from plaintiff, those claims are
similarly not cognizable. Plaintiff does not allege that he remained at risk of further harm
from defendant Hill after the assault on September 24, 2020. Even assuming an ongoing

risk existed, however, plaintiff also does not allege that he made defendants Wilson,
Bennidict, Mosnal, Dorr, and Sheets aware of an actual (rather than hypothetical) ongoing
6
risk of harm. Without more, the amended complaint alleges only that defendants Wilson,
Bennidict, Mosnal, Dorr, and Sheets somehow violated plaintiff's constitutional rights by
failing to act on information that his rights had been violated in the past by defendant Hill.
These allegations do not give rise to a cognizable constitutional claim. See Harnett v. Barr,
538 F. Supp. 2d 511, 524 (N.D.N.Y. 2008) ("If [an] official is confronted with a [constitutional]

violation that has already occurred and is not ongoing, then the official will not be found
personally responsible for failing to remedy a violation." (internal quotation marks omitted)).
For the foregoing reasons, plaintiff's failure to protect claims asserted against
defendants Wilson, Bennidict, Mosnal, Dorr, and Sheets are dismissed for failure to state a
claim upon which relief may be granted pursuant to Section 1915(e)(2)(B)(ii).
3. Access to Courts
The legal standard governing First Amendment denial of court access claims was set

forth in the November Order and will not be restated in this Decision and Order. November
Order at 10-11.
Like plaintiff's original complaint, the facts giving rise to a court access claim are not
clearly alleged in the amended complaint. To the extent the claim is based on allegations
that defendants Dorr and Sheets ignored plaintiff's reports that defendant Hill had assaulted
him, there are no allegations that the failure to provide assistance hindered plaintiff's legal
efforts to pursue this (or any other) lawsuit. Because plaintiff's amended complaint fails to
plausibly allege that he suffered an actual injury for purposes of a First Amendment court

access claim, the claim is dismissed for failure to state a claim upon which relief may be
granted pursuant to Sections 1915(e)(2)(B)(ii).
7
To the extent that plaintiff's court access claim arises from allegations that there is no
dedicated law library or access to legal assistance in the CNYPC, that claim is also subject
to dismissal because the amended complaint fails to allege that plaintiff has suffered any
prejudice in connection with a non-frivolous legal claim as a result of the absence of a law
library at CNYPC.

In addition, "personal involvement of defendants in alleged constitutional deprivations
is a prerequisite to an award of damages under [Section] 1983." Wright v. Smith, 21 F.3d
496, 501 (2d Cir. 1994) (citing Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir.
1991); McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir. 1977)). As the Supreme Court has
noted, a defendant may only be held accountable for his actions under Section 1983. See
Ashcroft v. Iqbal, 556 U.S. 662, 683 (2009) ("[P]etitioners cannot be held liable unless they
themselves acted on account of a constitutionally protected characteristic."). In order to
prevail on a Section 1983 cause of action against an individual, a plaintiff must show "a

tangible connection between the acts of a defendant and the injuries suffered." Bass v.
Jackson, 790 F.2d 260, 263 (2d Cir. 1986). Here, the amended complaint fails to allege that
any of the named defendants are responsible for the absence of a law library at CNYPC.
Am. Compl. at 9. Liberally construed, the amended complaint alleges only that the CNYPC
has no law library because MHLS attorneys are charged with providing legal assistance to
residents, but the amended complaint does not otherwise allege that any one person in
particular, including any of the defendants, is responsible for denying CNYPC residents

access to a law library. Id.
While the personal involvement of a defendant is a prerequisite to an award of
8
damages under Section 1983, that rule is limited to cases in which damages are sought.
Bodie v. Morgenthau, 342 F. Supp. 2d 193, 203 (S.D.N.Y. 2004). The lack of personal
involvement is not a bar to an action seeking prospective injunctive or declaratory relief.
Bodie, 342 F. Supp. 2d at 203; Marshall v. Switzer, 900 F. Supp. 604, 615 (N.D.N.Y. 1995).
In this case, plaintiff seeks both damages and injunctive relief. Am. Compl. at 11. In

particular, the amended complaint seeks, among other things, an injunction directing MHLS
to provide legal assistance to CNYPC residents. Id. at 11. There are no allegations,
however, that defendants Hill, Morgan, Wilson, Bennidict, and Mosnal have the authority to
direct MHLS to provide plaintiff with legal assistance. Id. Because an injunction may issue
only "in circumstances where the state official has the authority to perform the required act,"
Schallop v. N.Y.S. Dep't of Law, 20 F. Supp. 2d 384, 391 (N.D.N.Y. 1998), plaintiff's court
access claims seeking injunctive relief against defendants Hill, Morgan, Wilson, Bennidict,
and Mosnal also fail.

As for plaintiff's court access claims seeking injunctive relief against defendants Dorr
and Sheets, as noted above in part II.B. of this Decision and Order, Section 47.03 of the
MHL directs MHLS to provide plaintiff with legal representation. Any injunction directing
defendants Dorr and Sheets to comply with state law therefore amounts to an "obey the law"
injunction that is not favored in this Circuit. See, e.g., S.C. Johnson & Son, Inc. v. Clorox
Co., 241 F.3d 232, 240 (2d Cir. 2001). For that reason, plaintiff's claims seeking injunctive
relief against defendants Dorr and Sheets are dismissed, as well.

4. Malpractice/Failure to Provide Legal Assistance
Liberally construed, the amended complaint appears to assert causes of action
9
against defendants Dorr and Sheets for failing to provide him with legal assistance
concerning the alleged assault by defendant Hill on September 24, 2020. Am. Compl. at 7-9
In particular, plaintiff alleges that, in their capacities as his lawyers related to his Article 10
petition, they are under an obligation to assist him in "object[ing] to care and treatment and
to investigate any abuses and assaults by staffs." Id. at 7. In addition, as relief, plaintiff

seeks, among other things, a finding that defendant Dorr has committed legal malpractice.
Id. at 11. Plaintiff's claims against defendants Dorr and Sheets are dismissed for the
following two reasons.
First, as explained in the November Order, to the extent that plaintiff asserts a cause
of action against defendants Dorr and Sheets pursuant to Section 1983, that claim fails
because the amended complaint fails to allege that those individuals are state actors. See,
e.g., Pitchell v. Callan, 13 F.3d 545, 547 (2d Cir. 1994) ("In order to maintain a section 1983
action, two essential elements must be present: (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."). Court-appointed attorneys do not act under
color of state law merely by virtue of their appointment. See, e.g., Polk Cnty. v. Dodson, 454
U.S. 312, 325 (1981) (holding that a county public defender does not act under color of state
law when performing traditional advocacy functions in a criminal proceeding). Courts in this
Circuit have routinely concluded that MHLS attorneys are not state actors. See Fisk v.

Letterman, 401 F. Supp. 2d 362, 378 (S.D.N.Y. 2005) ("Courts have clearly and consistently
held that court-appointed attorneys do not act under color of state law by virtue of their
10
appointment. This is true even if the attorney is employed by the [MHLS.]" (internal citations
omitted)); see also Scott v. Djeck, No. 09-CV-1122, 2010 WL 145297, at *4 (N.D.N.Y. Jan.
11, 2010) ("An attorney employed by M.H.L.S. is not a state actor for purposes of § 1983.").
While it is true that, court-appointed attorneys may be characterized as state actors under
certain circumstances,4 none of those circumstances are alleged in the amended complaint.

Second, regardless of whether the claims asserted against defendants Dorr and
Sheets arise under Section 1983 or state law, they are barred by the Eleventh Amendment,
which has long been construed as precluding a citizen from bringing a suit against his own
state in federal court, under the fundamental principle of "sovereign immunity." See U.S.
CONST. amend. XI ("The Judicial power of the United States shall not be construed to extend
to any suit in law or equity, commenced or prosecuted against one of the United States by
Citizens of another State, or by Citizens or Subjects of any Foreign State."); Edelman v.
Jordan, 415 U.S. 651, 662-63 (1974); Cory v. White, 457 U.S. 85, 90-91 (1982); Gollomp v.

Spitzer, 568 F.3d 355, 365-66 (2d Cir. 2009). State immunity extends not only to the states,
but also to state agencies. See, e.g., McGinty v. N.Y., 251 F.3d 84, 95 (2d Cir. 2001) ("The
Eleventh Amendment extends immunity not only to a state, but also to entities considered
'arms of the state.'"). Because MHLS is a New York State agency, it is afforded protection
under the Eleventh Amendment. See Shrader v. Granninger, 870 F.2d 874, 876 (2d Cir.
1989) ("[MHLS] is an agency within the judicial branch of New York State government[.]");

4 For example, court-appointed attorneys that are found to have "conspire[d] with a state official to
violate the plaintiff's constitutional rights" is considered a state actor under Section 1983. Fisk, 401 F. Supp. 2d
at 378. In addition, the Supreme Court has opined that court appointed attorneys may "act under color of law
while performing certain administrative and possibly investigative functions." Polk Cnty., 454 U.S. at 325.
11
Sasscer v. Barrios-Paoli, No. 05-CV-2196, 2008 WL 5215466, at *4 (E.D.N.Y. Dec. 8, 2008)
("Because MHLS is a state-funded legal services agency under the direction of the New York
State Office of Court administration, MHLS enjoys the same Eleventh Amendment immunity
from suit in federal court as is enjoyed by the state itself." (internal quotation marks and
citations omitted)). Immunity also extends to state officers, like defendants Dorr and Sheets,

sued for "any remedy for past violations of federal law, including declaratory judgment[.]"
Chinn v. City Univ. of New York Sch. of Law at Queens Coll., 963 F. Supp. 218, 224-25
(E.D.N.Y. 1997) (citing Green v. Mansour, 474 U.S. 64, 72-73 (1985)). To the extent
plaintiff's amended complaint asserts state law claims against defendants Dorr and Sheets,
the "Eleventh Amendment . . . is a bar addressed to federal courts, not federal causes of
action," and, for that reason, plaintiff's state law claims are similarly barred in federal court.
Miles v. Baruch Coll., No. 07-CV-1214, 2008 WL 222299, at *3 (E.D.N.Y. Jan. 25, 2008)
(citing Pennhurst State Sch. & Hosp. v. Haldermann, 465 U.S. 89, 120 (1984) ("The Eleventh

Amendment should not be construed to apply with less force to [pendent] jurisdiction than it
does to the explicitly granted power to hear federal claims.")).
For the foregoing reasons, plaintiff's legal assistance claims asserted against
defendants Dorr and Sheets are dismissed pursuant to Section 1915(e)(2)(B).
III. CONCLUSION
WHEREFORE, it is hereby

ORDERED that plaintiff's amended complaint (Dkt. No. 5) is ACCEPTED for filing
only to the extent that it asserts a Fourteenth Amendment excessive force and a state law
assault claim against defendant Hill; and it is further
12
ORDERED that, except as to the foregoing, the remaining claims asserted in plaintiff's
amended complaint are DISMISSED without prejudice pursuant to 28 U.S.C. §
1915(e)(2)(B); and it is further
ORDERED that a response to the amended complaint shall be filed by defendant Hill,
or his counsel, on or before February 17, 2021; and it is further
ORDERED the Clerk shall serve a copy of this Decision and Order on the parties, as
well as serve copies of any unreported decision cited to in this Decision and Order on the
plaintiff.
IT IS SO ORDERED.
Dated: February 3, 2021

BrendaK.Sannes ss”
U.S. District Judge

13

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10313519. Public record. Not legal advice.