Everson v. Onondaga County

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

_____________________________________________

KEVIN M. EVERSON,

Plaintiff,

5:23-cv-00707-TJM-TWD

v.

ONONDAGA COUNTY,

Defendant.

_____________________________________________

APPEARANCES:

KEVIN M. EVERSON

Plaintiff, pro se

23-B-2684

Franklin Correctional Facility

P.O. Box 10

Malone, NY 12953

THÉRÈSE WILEY DANCKS, United States Magistrate Judge

ORDER AND REPORT-RECOMMENDATION

I. INTRODUCTION

The Clerk has sent to the Court for review a complaint submitted by pro se plaintiff

Kevin M. Emerson (“Plaintiff”) alleging Onondaga County violated his civil rights. (Dkt. No.

1.) Plaintiff, who is currently in the custody of New York State Department of Corrections and

Community Supervision (“DOCCS”) at the Franklin Correctional Facility in Malone, New

York,1 has not paid the filing fee for this action and seeks leave to proceed in forma pauperis

(“IFP application”).2 (Dkt. Nos. 2, 7.)

II. IFP APPLICATION

“28 U.S.C. § 1915 permits an indigent litigant to commence an action in a federal court

without prepayment of the filing fee that would ordinarily be charged.” 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) and Harris v. City of New York, 607 F.3d 18, 21 (2d

Cir. 2010)).

Upon review, Plaintiff’s IFP application demonstrates economic need. (Dkt. No. 2.) He

also re-filed the inmate authorization form required in this District. (Dkt. No. 7.) Because

Plaintiff has met the statutory requirements of 28 U.S.C. § 1915(a), and has filed the inmate

authorization form required in this District, he is granted permission to proceed IFP. (Dkt. Nos.

2, 7.)

III. BACKGROUND

At the time of filing, Plaintiff was incarcerated at the Onondaga County Justice Center.

(Dkt. No. 1 at 4.) On June 13, 2023, he filed a Section 1983 complaint form with an attachment

1 Plaintiff filed a change of address on August 7, 2023. (Dkt. No. 9.)

2 Plaintiff filed his complaint and motion to proceed IFP on June 13, 2023. (Dkt. Nos. 1, 2.)

However, Plaintiff did not file the required inmate authorization form with his IFP application.

By Order entered June 21, 2023, this case was administratively closed with an opportunity to

comply with the filing fee requirement. (Dkt. No. 3.) Thereafter, Plaintiff filed his inmate

authorization form required in this District, and the Clerk reopened the matter and restored it to

the Court’s active docket. (Dkt. Nos. 7, 8.)

detailing his claims. See id. Plaintiff alleges when he appeared in front of the grand jury, he was

forced to wear shackles despite requesting they be removed. Id. Plaintiff argues the district

attorney did not articulate a reasonable basis for him being shackled in front of the grand jury

and the lack of cautionary instructions to the grand jury caused prejudice against him. Id. at 5.

In response, Plaintiff asked his attorney at the time, Heather Vincent, to move for his indictment

to be dismissed due his “Fourteenth Amendment being violated.”3 Id.

He then alleges the prosecution “elicited a false testimony and allowed the testimony to

stand uncorrected.” Id. at 7. He claims the witness, James Ramish, contradicted himself

multiple times during his testimony proving he has “something to hide.” Id. Further, the “police

statements and grand jury statements both are two different stories and almost seem coerced in

the grand jury as if the witness was coached to say it.” Id. Plaintiff claims he has brought these

issues up multiple times with different attorneys who “pushed [them] aside as if they don’t

matter.” Id. Plaintiff asserts his due process rights were violated “because the outcome could

have been more favorable to the defendant” if these issues were raised. Id.

Next, Plaintiff alleges Assistant District Attorney Louis Mannara (“ADA Mannara”)

committed abuse of process. Id. at 6. Specifically, he claims ADA Mannara “gloated and

boasted to [Plaintiff’s attorney] that he ‘spanked [Plaintiff’s] ass in the courtroom’” and

“bragged” how he planned “to sentence [Plaintiff] to possibly the max sentence” on his case. Id.

According to Plaintiff, this “proves” ADA Mannara had “an ulterior motive . . . as a district

attorney.” Id.

3 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.

Finally, Plaintiff claims Joseph Wetland, an attorney who never represented him,

“exposed” his case to a third party, an inmate named Nathaniel Newton, by giving him pieces of

Plaintiff’s discovery. Id. Newton proceeded to “show other inmates [Plaintiff’s] discovery that

created a compremisal of [Plaintiff’s] defense” and “created a breach of attorney client

communication under the professional rules of conduct.” Id. Additionally, Plaintiff alleges

“the[] district attorney” has withheld his IDs, car titles, and bank cards for three years “creating

hardships for [Plaintiff] almost making it a point to land [Plaintiff] back in jail.” Id.

Plaintiff lists his first cause of action as $100,000 “for hardships created as a result of

injustice including missed wages, loss of personal items, pain and suffering, mental abuse” and

withholding of Plaintiff’s IDs, bank cards, and vehicle titles. Id. at 12. Plaintiff lists his second

cause of action as “relief from incarceration due to violation” of Plaintiff’s Fifth and Fourteenth

Amendments and “Constitutional Rights (Due Process).” He lists his third cause of action as “A

T.R.O. from judge Matthew J. Doran and District Attorney Louis Mannara.” Id.

IV. STANDARD OF REVIEW

Under Section 1915(e), the Court must dismiss a complaint filed IFP if it determines 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); see Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998).

The Court must also dismiss a complaint, or portion thereof, when the Court lacks subject matter

jurisdiction. See Fed. R. Civ. P. 12(h)(3). While the law mandates dismissal on any of these

grounds, the Court is obliged to construe pro se pleadings liberally, Harris v. Mills, 572 F.3d 66,

72 (2d Cir. 2009), and interpret them to raise the “strongest arguments that they suggest.”

Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474-75 (2d Cir. 2006) (internal quotation

marks and citation omitted).

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, 141 F.3d at 437 (“[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 quotation marks 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.

Moreover, a court should not dismiss a pro se complaint “without granting leave to

amend at least once when a liberal reading of the complaint gives any indication that a valid

claim might be stated.” Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999)

(citation and internal quotation marks omitted). However, an opportunity to amend is not

required where “the problem with [the plaintiff’s] causes of action is substantive” such that

“better pleading will not cure it.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000).

V. DISCUSSION

Plaintiff brings this action pursuant to 42 U.S.C. § 1983. (Dkt. No. 1.) To state a claim

under Section 1983, a plaintiff must show that the challenged conduct was committed by a

person acting under color of state law and that such conduct “deprived [him] of rights, privileges,

or immunities secured by the Constitution or laws of the United States.” Cornejo v. Bell, 592

F.3d 121, 127 (2d Cir. 2010) (internal quotation marks and citation omitted). “Section 1983

itself creates no substantive rights; it provides only a procedure for redress for the deprivation of

rights established elsewhere.” Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993).

To state a cognizable claim under Section 1983, a complaint must allege “(1) ‘that some

person has deprived [the plaintiff] of a federal right,’ and (2) ‘that the person who has deprived

[the plaintiff] of that right acted under color of state law.’” Velez v. Levy, 401 F.3d 75, 84 (2d

Cir. 2005) (quoting Gomez v. Toledo, 446 U.S. 635, 640 (1980)) (alteration omitted).

A. Heck v. Humphrey

Plaintiff asserts claims for Fifth and Fourteenth Amendment due process violations,

abuse of process, and violation of attorney client privilege. (Dkt. No. 1 at 5-7.) At this juncture,

however, the Court is unable to determine whether these claims are barred by Heck v. Humphrey,

512 U.S. 477, 487 (1994). Heck provides when a claim under Section 1983 calls into question

the validity of an underlying conviction, a district court must dismiss the claim, unless the

conviction has been invalidated. 512 U.S. at 487. Although it is clear that Plaintiff is confined

to Franklin Correctional Facility, he does not specify whether his current confinement is directly

related to the underlying claim, nor whether it is related to the status of any relevant criminal

proceeding. (Dkt. No. 1 at 4-7, 12; Dkt. No. 9.) If any criminal action relative to Plaintiff’s

allegations has since terminated, he must set forth that any convictions have been resolved in his

favor in order to recover damages for due process violations. Because Plaintiff has not alleged

sufficient facts in this regard, the Court cannot determine whether these claims may survive

initial review. Thus, these claims should be dismissed without prejudice, allowing Plaintiff the

opportunity to plead the status of any related underlying criminal proceeding.

B. Onondaga County

However, even if Plaintiff’s claims were not barred by Heck, Plaintiff would need to

establish municipal liability as laid out in Monell v. Dep’t of Soc. Servs. of the City of New York,

436 U.S. 658 (1978). In order to set forth a cognizable claim for municipal liability under

Section 1983, a plaintiff must plead and prove that a deprivation of his constitutional rights was

“caused by a governmental custom, policy, or usage of the municipality.” Jones v. Town of E.

Haven, 691 F.3d 72, 80 (2d Cir. 2012) (citing Monell, 436 U.S. 658); see also Vippolis v. Vill. of

Haverstraw, 768 F.2d 40, 44 (2d Cir. 1985) (“The plaintiff must first prove the existence of a

municipal policy or custom in order to show that the municipality took some action that caused

his injuries beyond merely employing the misbehaving officer.”). A municipality may be liable

for deprivation of constitutional rights under Section 1983 for policies or customs resulting in

inadequate training, supervision, or hiring when the failure to train, supervise, or hire amounts to

deliberate indifference to the rights of those with whom municipal employees will come into

contact. See City of Canton, Ohio v. Harris, 489 U.S. 378, 388-89 (1989). A plaintiff must also

establish a causal connection—an affirmative link—between the policy and the deprivation of

his constitutional rights. City of Oklahoma City v. Tuttle, 471 U.S. 808, 823 (1985) (plurality

opinion). Indeed, municipalities may only be held liable when the municipality itself deprives an

individual of a constitutional right; it “may not be held liable on a theory of respondeat superior.”

Jeffes v. Barnes, 208 F.3d 49, 56 (2d Cir. 2000).

Critically, “a prerequisite to municipal liability under Monell is an underlying

constitutional violation by a state actor.” Henry-Lee v. City of New York, 746 F. Supp. 2d 546,

567 (S.D.N.Y. 2010). As the Second Circuit has noted, “Monell does not provide a separate

cause of action for the failure by the government to train its employees; it extends liability to a

municipal organization where that organization’s failure to train, or the policies or customs that it

has sanctioned, led to an independent constitutional violation.” Segal v. City of New York, 459

F.3d 207, 219 (2d Cir. 2006); see also Henry-Lee, 746 F. Supp. 2d at 567 (noting once a “district

court properly [finds] no underlying constitutional violation, its decision not to address the

municipal defendants’ liability under Monell [is] entirely correct”) (citation omitted)).

Plaintiff has not asserted any of the alleged unconstitutional acts were attributable to a

municipal policy or custom, but rather to certain individuals such as Heather Vincent, ADA

Mannara, Judge Mather J. Doran, and Joseph Wetland.4 (Dkt. No. 1 at 4-7.) “Custom denotes

4 Plaintiff does not list any of these individuals in the caption of his complaint. A party not

named in the caption of the complaint is not a party to the action. 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.”). Moreover, to the

extent Plaintiff will seek to sue any individual prosecutor, such as ADA Mannara, he or she

persistent and widespread practices, and thus proof of a single incident of unconstitutional

activity is not sufficient to impose liability under Monell[.]” Ahern v. City of Syracuse, 411 F.

Supp. 2d 132, 139 (N.D.N.Y. 2006) (internal quotation marks and citation omitted). As the

Second Circuit has made clear, “isolated acts . . . by non-policymaking municipal employees are

generally not sufficient to demonstrate a municipal custom, policy, or usage that would justify

municipal liability.” Jones, 691 F.3d at 81 (citing Villante v. Dep’t of Corr., 786 F.2d 516, 519

(2d Cir. 1986)); see also Henderson v. Town of Greenwich, 317 F. App’x 46, 47 (2d Cir. 2009)

(“Proof of a single incident of unconstitutional activity is not sufficient to impose liability under

Monell.”) (quoting City of Oklahoma City, 471 U.S. at 823-24).

VI. CONCLUSION

For the reasons stated herein, it is hereby

ORDERED that Plaintiff’s IFP application (Dkt. No. 2) is GRANTED;5 and it is further

RECOMMENDED that Plaintiff’s complaint be DISMISSED WITH LEAVE TO

AMEND; and it is further

would likely be protected by prosecutorial immunity. Simon v. City of New York, 727 F.3d 167,

171 (2d Cir. 2013). Likewise, to the extent Plaintiff will seek to sue any individual judge, such

as Judge Doran, he or she would likely be immune from suit for damages for any actions taken

within the scope of their judicial responsibilities. Mireles v. Waco, 502 U.S. 9, 11 (1991).

Finally, to the extent Plaintiff will seek to sue Heather Vincent and/or Joseph Wetland, “private

individuals . . . cannot be sued under 42 U.S.C. § 1983 absent a plausible allegation that they

acted under color of state law.” Basile v. Connolly, 538 F. App’x 5, 7 (2d Cir. 2013). Further,

attorneys, whether court appointed or privately retained, are generally not state actors for

purposes of Section 1983. See, e.g., Polk Cty. v. Dodson, 454 U.S. 312, 325 (1981).

5 Plaintiff should note that although his IFP application has been granted, he will still be

required to pay fees that he may incur in this action, including copying and/or witness fees.

ORDERED that the Clerk provide Plaintiff with a copy of this Order and Report-

Recommendation, along with copies of the unpublished decisions cited herein in accordance

with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).

Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen 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 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)

(Supp. 2013); Fed. R. Civ. P. 72, 6(a).

Dated: September 5, 2023

Syracuse, New York

a Wiley Dancks :

United States Magistrate Judge

® If you are proceeding pro se and are served with this Order and Report-Recommendation by

mail, three additional days will be added to the fourteen-day period, meaning that you have

seventeen days from the date the Order and Report-Recommendation was mailed to you to serve

and file objections. Fed. R. Civ. P. 6(d). Ifthe 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. 6(a)(1)(C).

10

2010 WL 5185047 York State Department of Correctional Services, commenced

Only the Westlaw citation is currently available. this action on or about January 12, 2009 by submitting his

United States District Court, complaint to the Court's Pro Se office. Plaintiff alleges, in

S.D. New York. pertinent part, that he has “a non-healing ulcer that is gane

green [sic ]” and that defendant Bernstein “did not want

David J. CASH, Plaintiff, to treat the ulcer right” (Complaint, dated March 3, 3009

v. (Docket Item 2) (“Compl.”), at 3).

BERNSTEIN, MD, Defendant.

The action was originally commenced against two defendants

No. 09 Civ.1922(BSJ)(HBP). —Dr. Bernstein and Dr. Finkelstein. The action was dismissed

| as to Dr. Finkelstein because the complaint contained no

Oct. 26, 2010. allegations whatsoever concerning Dr. Finkelstein (Order

dated February 18, 2010 (Docket Item 9)).

REPORT AND RECOMMENDATION1 On March 4, 2010, the sole remaining defendant—Dr.

Bernstein—filed the current motion. Plaintiff failed to submit

1 At the time the action was originally filed, a response. Accordingly, on August 20, 2010, I issued an

Order advising plaintiff that if he wished to oppose the

the Honorable Leonard B. Sand, United States

motion, he must submit his opposition by September 15, 2010

District Judge, granted plaintiff's application for in

and that after that date I would consider the motion fully

forma pauperis status based on plaintiff's ex parte

submitted and ripe for decision (Order dated August 20, 2010

submission (Docket Item 1). Although the present

(Docket Item 15)). The only submission plaintiff has made

application seeking to revoke plaintiff's in forma

in response to my Order is a multi-part form issued by the

pauperis status is non-dispositive, I address it by

New York State Department of Correctional Services entitled

way of a report and recommendation to eliminate

“Disbursement or Refund Request.”2 By this form, plaintiff

any appearance of a conflict between the decision

appears to request that the New York State Department of

of a district judge and that of a magistrate judge.

Correctional Services pay the filing fee for this action. The

form is marked “Denied.”

PITMAN, United States Magistrate Judge.

*1 TO THE HONORABLE BARBARA S. JONES, United 2 Plaintiff sent this form directly to my chambers,

States District Judge, and it has not been docketed by the Clerk of the

Court. The form will be docketed at the time this

Report and Recommendation is issued.

I. Introduction

By notice of motion dated March 4, 2010 (Docket Item 11),

III. Analysis

defendant moves pursuant to 28 U.S.C. § 1915(g) to revoke

28 U.S.C. § 1915 permits an indigent litigant to commence

plaintiff's in forma pauperis (“IFP”) status on the ground that

an action in a federal court without prepayment of the filing

plaintiff has previously had at least three Section 1983 actions

fee that would ordinarily be charged. Although an indigent,

dismissed as frivolous, malicious or failing to state a claim

incarcerated individual need not prepay the filing fee at the

upon which relief could be granted, and has not shown that he

time at the time of filing, he must subsequently pay the fee,

is in imminent danger of serious physical injury. Defendant

to the extent he is able to do so, through periodic withdrawals

further seeks an order directing that the action be dismissed

from his inmate accounts. 28 U.S.C. § 1915(b); Harris v.

unless plaintiff pays the full filing fee within thirty (30) days.

City of New York, 607 F.3d 18, 21 (2d Cir.2010). To prevent

For the reasons set forth below, I respectfully recommend that

abuse of the judicial system by inmates, paragraph (g) of

defendant's motion be granted.

this provision denies incarcerated individuals the right to

proceed without prepayment of the filing fee if they have

II. Facts repeatedly filed meritless actions, unless such an individual

Cir.2004) (“[T]he purpose of the PLRA ... was plainly to 3 It appears that plaintiff uses the names David

curtail what Congress perceived to be inmate abuses of the J. Cash and Dennis Nelson interchangeably. In

judicial process.”); Nicholas v. Tucker, 114 F.3d 17, 19 (2d his complaint in this matter, plaintiff states that

Cir.1997). Specifically, paragraph (g) provides: the Departmental Identification Number, or DIN,

assigned to him by the New York State Department

of Correctional Services (“DOCS”) is 94–B–0694

*2 In no event shall a prisoner bring (Compl. at 7). DOCS inmate account records

a civil action or appeal a judgment submitted by plaintiff in connection with his

in a civil action or proceeding under application for IFP status indicate that DIN 94–

this section if the prisoner has, on B–0694 is assigned to Dennis Nelson. In addition,

3 or more prior occasions, while the DOCS form described in footnote two bears

incarcerated or detained in any facility, the docket number of this action, but is signed in

brought an action or appeal in a court the name of Dennis Nelson and was sent in an

of the United States that was dismissed envelope identifying the sender as Dennis Nelson.

on the grounds that it is frivolous, A subsequent action has been filed in this Court

malicious, or fails to state a claim upon in which the plaintiff identifies himself as Dennis

which relief may be granted, unless the Nelson but lists his DIN as 94–B–0694, the same

prisoner is under imminent danger of DIN used by plaintiff here. Finally, plaintiff has

serious physical injury. submitted nothing to controvert the assertion in

defendant's papers that David Cash and Dennis

Nelson are the same person. In light of all these

28 U.S.C. § 1915(g). facts, I conclude that David Cash and Dennis

Nelson are both names used by plaintiff.

If an inmate plaintiff seeks to avoid prepayment of the filing

fee by alleging imminent danger of serious physical injury, • In Nelson v. Nesmith, No. 9:06–CV–1177 (TJM)(DEP),

there must be a nexus between the serious physical injury 2008 WL 3836387 (N.D.N.Y. Aug. 13, 2008), plaintiff

asserted and the claims alleged. Pettus v. Morgenthau, 554 again filed an action concerning the medical care

F.3d 293, 298 (2d Cir.2009). he was receiving for his left leg. The Honorable

Thomas J. McAvoy, United States District Judge,

Section 1915(g) clearly prevents plaintiff from proceeding accepted the Report and Recommendation of Magistrate

in this action without prepayment of the filing fee. Judge Peebles, and revoked plaintiff's IFP status and

The memorandum submitted by defendant establishes that dismissed the action on the ground that plaintiff had

plaintiff has had his IFP status revoked on at least four prior previously commenced at least three actions that had

occasions as a result of his repeatedly filing meritless actions. been dismissed on the merits. 2008 WL 3836387 at *1,

*7.

• In 2005, plaintiff commenced an action in the United

States District Court for the Northern District of New • In Nelson v. Spitzer, No. 9:07–CV–1241 (TJM)

York seeking to have his infected leg amputated. (RFT), 2008 WL 268215 (N.D.N.Y. Jan. 29, 2008),

Nelson3 v. Lee, No. 9:05–CV–1096 (NAM)(DEP), 2007 Judge McAvoy again revoked plaintiff's IFP status

WL 4333776 (N.D.N.Y. Dec. 5, 2007). In that matter, on the ground that plaintiff had commenced three

the Honorable Norman A. Mordue, Chief United States or more actions that constituted “strikes” under

District Judge, accepted and adopted the Report and Section 1915(g) and had not shown an imminent

Recommendation of the Honorable David E. Peebles, threat of serious physical injury. 2008 WL 268215

United States Magistrate Judge, that plaintiff had at *1–*2.

brought three or more prior actions that had been

• Finally, in Nelson v. Chang, No. 08–CV–1261

dismissed for failure to state a claim and that plaintiff's

(KAM)(LB), 2009 WL 367576 (E.D.N.Y. Feb. 10,

IFP status should, therefore, be revoked. 2007 WL

2009), the Honorable Kiyo A. Matsumoto, United

cases discussed above, that plaintiff had exhausted that this vague statement is insufficient to support a finding

the three strikes permitted by Section 1915(g) that plaintiff is in imminent danger of serious physical

and could not proceed IFP in the absence of a injury.5

demonstration of an imminent threat of serious

physical injury. 2009 WL 367576 at *2–*3. 5 Plaintiff has sent me several letters describing his

*3 As defendant candidly admits, there is one case in which

wound and its symptoms in detail, and I have

plaintiff's leg infection was found to support a finding of an

no doubt that the wound is serious. However, in

imminent threat of serious physical injury sufficient to come

granting summary judgment dismissing an action

within the exception to Section 1915(g). Nelson v. Scoggy,

last year based on the same allegations, Judge

No. 9:06–CV–1146 (NAM)(DRH), 2008 WL 4401874 at *2

Mordue of the Northern District found that there

(N.D.N.Y. Sept. 24, 2008). Nevertheless, summary judgment

was no genuine issue of fact that plaintiff's own

was subsequently granted for defendants in that case, and

conduct was responsible for the ineffectiveness of

the complaint was dismissed. Judge Mordue concluded that

the treatment he was provided:

there was no genuine issue of fact that plaintiff had received

Furthermore, to the extent that Nelson's medical

adequate medical care for his leg wound and that the failure

treatment was delayed, much of the delay

of the leg to heal was the result of plaintiff's own acts of

was due to his own refusal to cooperate with

self-mutilation and interference with the treatment provided.

medical staff and his self-mutilations. Nelson's

Nelson v. Scoggy, No. 9:06–CV–1146 (NAM)(DRH), 2009

actions to thwart the medical treatment of his

WL 5216955 at *3–*4 (N.D.N.Y. Dec. 30, 2009).4

wound cannot be construed as interference or

indifference by anyone else.... [T]he medical

4 Although the form complaint utilized by plaintiff treatment Nelson received complied with

expressly asks about prior actions involving the constitutional guarantees as it was appropriate,

same facts, plaintiff disclosed only the Scoggy timely, and delayed only by Nelson's own

action and expressly denied the existence of any actions.

other actions relating to his imprisonment (Compl. Nelson v. Scoggy, supra, 2009 WL 5216955 at *4.

at 6). Given plaintiff's total failure to respond to the

pending motion and his failure to even deny that

In light of the foregoing, there can be no reasonable dispute

he is actively thwarting treatment of his wound, it

that plaintiff has exceeded the three “strikes” allowed by

would be sheer speculation for me to conclude that

Section 1915(g) and that he cannot, therefore, proceed here

he is in imminent danger of a serious injury as a

without prepaying the filing fee unless he demonstrates

result of defendant's conduct.

an imminent threat of serious physical injury. Plaintiff has

declined to attempt to make this showing in response to

defendant's motion, and the only suggestion in the record IV. Conclusion

of serious physical injury is the bare statement in the Accordingly, for all the foregoing reasons, I find that plaintiff

complaint that plaintiff “need[s] to go back to a wound speci has had three or more prior actions dismissed as being

[a]list before the gane green [sic ] kills [him]” (Compl. at frivolous, malicious or failing to state a claim and that

5). “However, unsupported, vague, self-serving, conclusory plaintiff's in forma pauperis status should, therfore, be

speculation is not sufficient to show that Plaintiff is, in fact, revoked. If your Honor accepts this recommendation, I further

in imminent danger of serious physical harm.” Merriweather recommend that the action be dismissed unless plaintiff pays

v. Reynolds, 586 F.Supp.2d 548, 552 (D.S.C.2008), citing the filing fee in full within thirty (30) days of your Honor's

Ciarpaglini v. Saini, 352 F.3d 328, 330 (7th Cir.2003) and final resolution of this motion.

White v. Colorado, 157 F.3d 1226, 1231–32 (10th Cir.1998);

see also Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir.2003)

V. OBJECTIONS

(imminent danger exception to Section 1915(g) requires

Pursuant to 28 U.S.C. § 636(b)(1)(C) and Rule 72(b) of

“specific fact allegations of ongoing serious physical injury,

the Federal Rules of Civil Procedure, the parties shall have

or of a pattern of misconduct evidencing the likelihood

fourteen (14) days from receipt of this Report to file written

of imminent serious physical injury”). Given the plaintiff's

with courtesy copies delivered to the Chambers of the Cir.1997); IUE AFL–CIO Pension Fund v. Herrmann, 9 F.3d

Honorable Barbara S. Jones, United States District Judge, 1049, 1054 (2d Cir.1993); Frank v. Johnson, 968 F.2d 298,

500 Pearl Street, Room 1920, and to the Chambers of the 300 (2d Cir.1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 57–

undersigned, 500 Pearl Street, Room 750, New York, New 59 (2d Cir.1988); McCarthy v. Manson, 714 F.2d 234, 237–

York 10007. Any requests for an extension of time for filing 38 (2d Cir.1983).

objections must be directed to Judge Jones. FAILURE TO

OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT

All Citations

IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE

APPELLATE REVIEW. Thomas v. Arn, 474 U.S. 140, 155 Not Reported in F.Supp.2d, 2010 WL 5185047

End of Document © 2023 Thomson Reuters. No claim to original U.S. Government Works.

2007 WL 2375814 Kasacey and Peck were responsible for, plaintiff's second

Only the Westlaw citation is currently available. amended complaint does not allege sufficient facts to state

United States District Court, claims against Krinser, Kasacey and Peck.

W.D. New York.

In addition, plaintiff was directed that his second amended

Vidal WHITLEY, Plaintiff, complaint “should name in the caption all of the people

v. plaintiff wishes to hold responsible for each violation.

Major KRINSER, Sgt. Robin Brown, Captain Winters, Plaintiff has alleged that people who are not named in the

Corporal Conklin, Deputy Johnson, Lt. Prinzi, Corporal caption were responsible for violation his rights. However,

if these people are not also named in the caption of the

Carlo, Lt. Santillo, Sgt. Garcia, Major Kasacey,

second amended complaint, they will not be defendants in the

Corporal Peck, and Deputy Galling, Defendants.

case.” (Docket No. 11.) Because plaintiff has not named any

No. 06-CV-0575F. additional defendants in the second amended complaint, has

| not included the allegations against the remaining defendants

Aug. 15, 2007. named in his amended complaint, and has failed to state a

claim against Krinser, Kasacey and Peck, the second amended

Attorneys and Law Firms complaint is dismissed in its entirety. However, because of

plaintiff's pro se status and his minimal literacy, the Court

Vidal Whitley, Willard, NY, pro se. will deem the amended complaint the operative pleading in

this case and allow it to proceed against all named defendants

except Krinser, Kasacey and Peck.

DECISION and ORDER

WILLIAM M. SKRETNY, United States District Judge.

CONCLUSION

INTRODUCTION For the reasons set forth above, plaintiffs claims against

defendants Krinser, Kasacey and Peck are dismissed pursuant

*1 By an Order dated February 8, 2007, plaintiff pro se Vidal to 28 U.S.C. § 1915(e)(2)(B) and the amended complaint shall

Whitley was granted permission to file a second amended be served on the remaining defendants set forth in the caption

complaint in this action pursuant to 42 U.S.C. § 1983 to above.

specifically address issues relating to defendants Kasacey,

Krinser and Peck. For the reasons stated below, plaintiff's

second amended complaint is dismissed and the amended

complaint is allowed to go forward at this stage against all ORDER

named defendants except as to defendants Krinser, Kasacey

IT HEREBY IS ORDERED, that the claims against Krinser,

and Peck.

Kasacey and Peck are dismissed with prejudice pursuant to

28 U.S.C. § 1915(e)(2)(B); and,

DISCUSSION FURTHER, the Clerk of the Court is directed to correct the

docket to reflect that Sgt. Robin Brown, Captain Winters,

Section 1915(e) (2)(B) of 28 U.S.C. provides that the Court Corporal Conklin, Deputy Johnson, Lt. Prinzi, Corporal

shall dismiss a case in which in forma pauperis status has been Carlo, Lt. Santillo, Sgt. Garcia and Deputy Galling are

granted if, at any time, the Court determines that the action defendants in this action; and,

“(ii) fails to state a claim upon which relief may be granted.”

Based on its evaluation of the complaint, the Court finds FURTHER, the Clerk of the Court is directed to cause the U.S.

that plaintiffs claims against defendants Krinser, Kasacey and Marshal to serve the amended complaint (Docket No. 10) and

Peck must be dismissed pursuant to 28 U.S.C. § 1915(e)(2) this Order upon the remaining defendants, Sgt. Robin Brown,

(B)(ii) because they fail to state a claim upon which relief

Galling.

All Citations

*2 SO ORDERED. Not Reported in F.Supp.2d, 2007 WL 2375814

End of Document © 2023 Thomson Reuters. No claim to original U.S. Government Works.