Silva v. State of New York

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

SANTO CARRERO SILVA,

Plaintiff,

v. 9:23-CV-1406

(BKS/ML)

STATE OF NEW YORK and MARK

DUANE LENTINI,

Defendants.

APPEARANCES:

SANTO CARRERO SILVA

Plaintiff pro se

13-A-3235

Eastern NY Correctional Facility

Box 338

Napanoch, NY 12458

BRENDA K. SANNES

Chief United States District Judge

DECISION AND ORDER

I. INTRODUCTION

The Clerk has sent to the Court for review a pro se civil rights complaint filed by

plaintiff Santo Carrero Silva ("plaintiff") pursuant to 42 U.S.C. § 1983 ("Section 1983"). Dkt.

No. 1 ("Compl.") at 1. Plaintiff, who is in the custody of the New York State Department of

Corrections and Community Supervision ("DOCCS") at Eastern NY Correctional Facility

("Eastern C.F."), seeks leave to proceed in forma pauperis ("IFP"). Dkt. No. 5 ("IFP

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Application").1

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).2 "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 of plaintiff's IFP Application, the Court finds that plaintiff has

demonstrated sufficient economic need and filed the inmate authorization form required in

the Northern District of New York. Dkt. No. 3. Plaintiff's IFP Application (Dkt. No. 5) is

granted.

III. SUFFICIENCY OF THE COMPLAINT

A. Standard of Review

Having found that plaintiff meets the financial criteria for commencing this action in

forma pauperis, and because plaintiff seeks relief from an officer or employee of a

1 On November 9, 2023, this action was administratively closed due to plaintiff's failure to comply with

the filing fee requirements. Dkt. No. 4. The case was reopened on November 27, 2023, upon receipt of the

required filings. Dkt. Nos. 5 and 6.

2 Section 1915(g) prohibits a prisoner from proceeding IFP where, absent a showing of "imminent

danger of serious physical injury," a prisoner has filed three or more actions that were subsequently dismissed

as frivolous, malicious, or failing to state a claim upon which relief may be granted. See 28 U.S.C. § 1915(g).

The Court has reviewed plaintiff's litigation history on the Federal Judiciary's Public Access to Court Electronic

Records ("PACER") Service. See http://pacer.uspci.uscourts.gov. It does not appear from that review that

plaintiff had accumulated three strikes for purposes of 28 U.S.C. § 1915(g) as of the date this action was

commenced.

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governmental entity, the Court must consider the sufficiency of the allegations set forth in the

complaint in light of 28 U.S.C. §§ 1915(e) and 1915A. Section 1915(e) of Title 28 of the

United States Code directs that, when a plaintiff seeks to proceed in forma pauperis, "the

court shall dismiss the case at any time if the court determines that – . . . (B) 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).3

Similarly, under 28 U.S.C. § 1915A, a court must review any "complaint in a civil

action in which a prisoner seeks redress from a governmental entity or officer or employee of

a governmental entity" and must "identify cognizable claims or dismiss the complaint, or any

portion of the complaint, 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." 28 U.S.C. § 1915A(b). The term "prisoner" includes pretrial

detainees. 28 U.S.C. § 1915A(c) (2006).

Additionally, when reviewing a complaint, the Court may also look to the Federal Rules

of Civil Procedure. Rule 8 of the Federal Rules of Civil Procedure provides that a pleading

which sets forth a claim for relief shall contain, inter alia, "a short and plain statement of the

claim showing that the pleader is entitled to relief." See Fed. R. Civ. P. 8(a)(2). The purpose

of Rule 8 "is to give fair notice of the claim being asserted so as to permit the adverse party

the opportunity to file a responsive answer, prepare an adequate defense and determine

whether the doctrine of res judicata is applicable." Hudson v. Artuz, No. 95 Civ. 4768, 1998

3 To determine whether an action is frivolous, a court must look to see whether the complaint "lacks an

arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989).

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WL 832708, at *1 (S.D.N.Y. Nov. 30, 1998) (quoting Powell v. Marine Midland Bank, No. 95-

CV-0063 (TJM), 162 F.R.D. 15, 16 (N.D.N.Y. June 23, 1995) (other citations omitted)).

A court should not dismiss a complaint if the plaintiff has stated "enough facts to state

a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007). "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). While the court should construe the

factual allegations in the light most favorable to the plaintiff, "the tenet that a court must

accept as true all of the allegations contained in a complaint is inapplicable to legal

conclusions." Id. "Threadbare recitals of the elements of a cause of action, supported by

mere conclusory statements, do not suffice." Id. (citing Twombly, 550 U.S. at 555). Rule 8

"demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Id.

Thus, a pleading that contains only allegations which "are so vague as to fail to give the

defendants adequate notice of the claims against them" is subject to dismissal. Sheehy v.

Brown, 335 F. App'x 102, 104 (2d Cir. 2009).

The Court will construe the allegations in the complaint with the utmost leniency. See,

e.g., Haines v. Kerner, 404 U.S. 519, 520 (1972) (holding that a pro se litigant's complaint is

to be held "to less stringent standards than formal pleadings drafted by lawyers.").

B. Summary of the Complaint

Plaintiff completed portions of a pre-printed, form complaint, but the pleading contains

few factual allegations without dates and times. See generally Compl. Accompanying

plaintiff's complaint are 53 pages of exhibits. See Dkt. No. 1-1. None of the exhibits

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however, are referenced or cited in the complaint. Notwithstanding these pleading

deficiencies, the Court has carefully reviewed the complaint for purposes of Sections 1915

and 1915A, mindful of the Second Circuit's instruction to extend special solicitude to pro se

litigants and liberally construe their pleadings.

Plaintiff claims that, while in the care of defendant Dr. Mark Duane Lentini ("Lentini")

at Albany Medical Center, plaintiff was not provided with a Spanish speaking interpreter and

was "led to believe" that he would undergo a surgical procedure on "only one (1) toe."

Compl. at 4. After the procedure, Lentini informed plaintiff that he had operated on four toes

and that plaintiff "lost movement altogether in his foot[.]" Id. Plaintiff argues that "Eastern

Correctional Facility does not have pain management required that the plaintiff really needs."

Id.

Construing the complaint liberally, plaintiff asserts medical malpractice and negligence

claims. Compl. at 7. Plaintiff seeks injunctive relief and monetary damages. Id.

IV. ANALYSIS

Plaintiff seeks relief pursuant to 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." Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990)); see also

Myers v. Wollowitz, No. 95-CV-0272, 1995 WL 236245, at *2 (N.D.N.Y. Apr. 10, 1995)

(McAvoy, C.J.) (finding that "[Section] 1983 is the vehicle by which individuals may seek

redress for alleged violations of their constitutional rights"). "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). In order to

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maintain a Section 1983 action, a plaintiff must allege two essential elements. First, "the

conduct complained of must have been committed by a person acting under color of state

law." Pitchell v. Callan, 13 F.3d 545, 547 (2d Cir.1994). Second, "the conduct complained of

must have deprived a person of rights, privileges or immunities secured by the Constitution

or laws of the United States." Id.

"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). As the Supreme Court has noted, a defendant may only be held

accountable for his actions under Section 1983. See Iqbal, 556 U.S. at 683 ("[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). This is true even for supervisory officials.

See Tangreti v. Bachmann, 983 F.3d 609, 618 (2d Cir. 2020) ("There is no special rule for

supervisor liability."). "[A] plaintiff must plead and prove 'that each Government-official

defendant, [including supervisors,] through the official's own individual actions, has violated

the Constitution.' " Id. (quoting Iqbal, 556 U.S. at 676).

A. Eleventh Amendment and State of New York

The Eleventh Amendment has long been construed as barring a citizen from bringing

a suit against his or her own state in federal court, under the fundamental principle of

"sovereign immunity." U.S. Const. amend. XI ("The Judicial power of the United States shall

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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."); Hans v. Louisiana, 134 U.S. 1, 10-21 (1890); Idaho v. Coeur d'Alene Tribe

of Idaho, 521 U.S. 261, 267 (1997); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S.

89, 100 (1984). Eleventh Amendment immunity is lost only if Congress unequivocally

abrogates states' immunity or a state expressly consents to suit. Gollomp v. Spitzer, 568

F.3d 355, 365-66 (2d Cir. 2009). It is well-settled that Congress did not abrogate states'

immunity through 42 U.S.C. § 1983, see Quern v. Jordan, 440 U.S. 332, 343-45 (1979), and

that New York State has not waived its immunity from suit on the claims asserted in plaintiff's

complaint. See generally Trotman v. Palisades Interstate Park Comm'n, 557 F.2d 35, 38-40

(2d Cir. 1977); Dawkins v. State of New York, No. 93-CV-1298 (RSP/GJD), 1996 WL 156764

at *2 (N.D.N.Y. 1996).

In Ex Parte Young, 209 U.S. 123 (1908), the Supreme Court established an exception

to state sovereign immunity in federal actions where an individual brings an action seeking

injunctive relief against a state official for an ongoing violation of law or the Constitution.

Under the doctrine, a suit may proceed against a state official in his or her official capacity,

notwithstanding the Eleventh Amendment, when a plaintiff, "(a) alleges an ongoing violation

of federal law and (b) seeks relief properly characterized as prospective." See In re Deposit

Ins. Agency, 482 F.3d 612, 618 (2d Cir. 2007) (quotations and citations omitted); see also

Santiago v. New York State Dep't of Corr. Serv., 945 F.2d 25, 32 (2d Cir. 1991) (holding that

such claims, however, cannot be brought directly against the state, or a state agency, but

only against state officials in their official capacities). Accordingly, plaintiff's claims in this

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action asserted against the State of New York are dismissed pursuant to 28 U.S.C. §§

1915(e) and 1915A as barred by the Eleventh Amendment.

B. State Actor and Lentini

Two essential elements comprise a Section 1983 claim: (1) the defendant acted under

color of state law; and (2) as a result of the defendant's actions, the plaintiff suffered a denial

of his federal statutory rights, or his constitutional rights or privileges. Annis v. County of

Westchester, 136 F.3d 239, 245 (2d Cir. 1998) (citation omitted).

In order to sustain a cause of action under Section 1983, a plaintiff must establish that

defendants acted under the color of state law. See Rounseville v. Zahl, 13 F.3d 625, 628 (2d

Cir. 1994); see also Dennis v. Sparks, 449 U.S. 24, 29 n. 4 (1980) (to act under color of state

law, a plaintiff must allege that a private person was "a willful participant in joint activity with

the State or its agents"). Conclusory allegations that a private party acted in concert with a

state actor does not suffice to state a 1983 claim against a private party. Ciambriello v.

County of Nassau, 292 F.3d 307, 324 (2d Cir. 2002). Rather, a private entity becomes a

state actor when there is "such a close nexus between the state and the challenged action

that the state is responsible for the specific conduct." Fabrikant v. French, 691 F.3d 193, 206

(2d Cir. 2012) (citations omitted).

Courts employ three tests to determine whether private actions are attributable to the

states:

(1) [when] the entity acts pursuant to the coercive power of the

state or is controlled by the state ("the compulsion test"); (2)

when the state provides significant encouragement to the

entity, the entity is a willful participant in the joint activity with

the state, or the entity's functions are entwined with the state

policies ("the joint test" or "close nexus test"); or (3) when the

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entity has been delegated a public function by the state ("the

public function test").

Sybalski v. Indep. Group Home Living Program Inc., 546 F.3d 255, 257 (2d Cir. 2008).

"[T]he provision of medical care to incarcerated prisoners is a public function, even if

private physicians contract with the government to provide those services." Young v. Halle

Hous. Assocs., L.P., 152 F. Supp. 2d 355, 365 (S.D.N.Y. 2001) (citing West v. Atkins, 487

U.S 42, 56 (1988)) ("It is only those physicians authorized by the State to whom the inmate

may turn.").

However, "[w]th regard to doctors who treat prison inmates, the Supreme Court has

held that it is 'the physician's function within the state system, not the precise terms of his

employment, that determines whether his actions can fairly be attributed to the State' in a suit

under 42 U.S.C. § 1983." Doe v. Torres, No. 05 CIV. 3388, 2006 WL 290480, at *9

(S.D.N.Y. Feb. 8, 2006) (citing West, 487 U.S. at 55-56) ("[A] physician employed by [a state]

to provide medical services to state prison inmates . . . act[s] under color of state law for

purposes of § 1983 when undertaking his duties in treating [a prisoner's] injury.")).

Here, the complaint lacks facts suggesting that Lentini is a state actor for the purposes

of a § 1983 action. Lentini did not treat plaintiff at Eastern C.F. and plaintiff has failed to

plead a "close nexus" between Lentini and the staff at Eastern C.F. to suggest a connection

to the alleged deliberate indifference to his medical care.

C. Deliberate Medical Indifference

Even assuming plaintiff identified a proper defendant, his claims are subject to

dismissal. The Eighth Amendment mandates that prison officials provide adequate medical

care to inmates. See Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011). "An Eighth

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Amendment claim arising out of inadequate medical care requires a demonstration of

deliberate indifference to a prisoner's serious medical needs." Id. (internal quotation marks

omitted). A deliberate medical indifference claim has objective and subjective components.

Id. "Objectively, the alleged deprivation must be sufficiently serious, in the sense that a

condition of urgency, one that may produce death, degeneration, or extreme pain exists."

Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996) (internal quotation marks omitted).

As to the subjective element, an official acts with deliberate indifference when he knows of

and disregards an excessive risk to inmate health or safety. See Hill, 657 F.3d at 122 (citing

Farmer v. Brennan, 511 U.S. 825, 837 (1994)).

Here, plaintiff has failed to allege a deliberate indifference claim. As noted above,

plaintiff's complaint contains few factual allegations. Moreover, although plaintiff attached 53

exhibits to his complaint, the exhibits are not referenced anywhere in the pleading. The

Court cannot be tasked with the "unjustified burden" of sifting through the exhibits to

determine what claims plaintiff attempts to assert. See Kenlock v. Orange County, New York,

No. 20-CV-3693, 2021 WL 4267309, at *3 (S.D.N.Y. Sept. 20, 2021).

While plaintiff attempts to assert claims pursuant to Section 1983, the complaint

includes only vague state law causes of action for medical malpractice and negligence. The

protections afforded by the Eighth Amendment do not extend to remedy harms which may be

inflicted as a result of conduct amounting to negligence or medical malpractice but not

encompassing conscious disregard of an inmate's health. See Estelle v. Gamble, 429 U.S.

97, 105-06 (1976). Stated another way, "medical malpractice does not become a

constitutional violation merely because the victim is a prisoner." Id.; see also Smith v.

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Carpenter, 316 F.3d 178, 184 (2d Cir. 2003) ("[T]he Eighth Amendment is not a vehicle for

bringing medical malpractice claims. . . ."); see also Hill, 657 F.3d at 123 ("Medical

malpractice does not rise to the level of a constitutional violation unless the malpractice

involves culpable recklessness 'an act or failure to act by [a] prison doctor that evinces a

conscious disregard of a substantial risk of serious harm.' ") (quoting Chance, 143 F.3d at

703); Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir. 2003) ("A showing of medical

malpractice is . . . insufficient to support an Eighth Amendment claim unless the malpractice

involves culpable recklessness . . . .").

In addition, as discussed above, a plaintiff must allege the personal involvement by a

state actor in an alleged constitutional deprivation, including a claim of deliberate medical

indifference. Here, the complaint does not name any staff members at Eastern C.F. as

defendants or allege facts suggesting staff at Eastern C.F. were personally involved in a

constitutional deprivation. The only individual the complaint identifies in connection the

alleged conduct is Lentini and the complaint lacks facts suggesting Lentini is a state actor for

the purposes of a Section 1983 action. Plaintiff's claims against defendants are therefore

dismissed without prejudice pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A for failure to

state a claim upon which relief may be granted.

In light of his pro se status, the Court will afford plaintiff the opportunity to file an

amended complaint if he desires to proceed with this action. Any such amended complaint,

which shall supersede and replace in its entirety the previous complaint filed by plaintiff, must

contain a caption that clearly identifies, by name, each individual that plaintiff is suing in the

present lawsuit and must bear the case number assigned to this action. The body of

plaintiff's amended complaint must contain sequentially numbered paragraphs containing

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only one act of misconduct per paragraph. Thus, if plaintiff claims that his civil and/or

constitutional rights were violated by more than one defendant, or on more than one

occasion, he should include a corresponding number of paragraphs in his amended

complaint for each such allegation, with each paragraph specifying (i) the alleged act of

misconduct; (ii) the date on which such misconduct occurred; (iii) the names of each and

every individual who participated in such misconduct; (iv) where appropriate, the location

where the alleged misconduct occurred; and, (v) the nexus between such misconduct and

plaintiff's civil and/or constitutional rights.

V. CONCLUSION

WHEREFORE, it is hereby

ORDERED that, if plaintiff wishes to proceed with this action, he must file an amended

complaint as set forth above within thirty (30) days from the date of the filing of this

Decision and Order; and it is further

ORDERED that, if plaintiff timely files an amended complaint, this matter be returned

to the Court for further review; and it is further

ORDERED that, if plaintiff fails to timely file an amended complaint as directed above,

the Clerk shall enter judgment indicating this action is DISMISSED without prejudice

without further order of this Court pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A for

failure to state a claim upon which relief may be granted and for failure to comply with this

Decision and Order. In that event, the Clerk is directed to close this case; and it is further

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ORDERED that the Clerk of the Court shall serve a copy of this Decision and Order

and the complaint, in accordance with the Local Rules of Practice.

Dated: January 23, 2024

Prenr Ba □□□ annee

Brenda K. Sannes

Chief U.S. District Judge

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