Santos v. Wood

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

FRANCISCO SANTOS,

Plaintiff,

v. 20-CV-721

ORDER

JEFFREY P. WOOD, C.O., JOHN DOE

#1, SGT., TIMOTHY A. PERRY, C.O., J.

HARTMAN, C.O., CHRISTOPHER M.

LEARN, SGT., ROBERT A. RUPPEL,

PSA., ANTHONY J. ANNUCCI, AC., and

KEVIN W. OTT, CP.,

Defendants.

INTRODUCTION

The pro se plaintiff, Francisco Santos, was a prisoner confined at the Auburn

Correctional Facility (“Auburn”) when he filed this action. He asserts claims under

42 U.S.C. § 1983 and alleges that officials at the Elmira Correctional Facility (“Elmira”)

and the New York State Department of Corrections and Community Supervision

(“DOCCS”) have violated his rights under the First, Eighth, and Fourteenth

Amendments to the United States Constitution. Docket Item 1.1 He also has moved to

proceed in forma pauperis (that is, as a person who should have the prepayment of the

1 Santos originally filed this action in the United States District Court for the

Northern District of New York against officials from Elmira and Auburn, as well as

against state-level leadership from DOCCS. But on June 15, 2020, Hon. Lawrence E.

Kahn severed and transferred to this court Santos’s claims against all Elmira

defendants, as well as his related claims against DOCCS defendant Anthony J.

Annucci, under Rule 21 of the Federal Rules of Civil Procedure and 28 U.S.C. §

1404(a). See Docket Item 6.

ordinary filing fee waived because he cannot afford it). Docket Item 2. And he has

moved to preliminarily enjoin the defendants from denying him certain medications.

Docket Item 4.

Because the plaintiff meets the statutory requirements of 28 U.S.C. § 1915(a)

and has filed the required authorization and certification, Docket Items 2 and 3, the

Court grants his motion to proceed in forma pauperis. Therefore, under 28 U.S.C.

§§ 1915(e)(2)(B) and 1915A(a), the Court screens the complaint. For the reasons that

follow, all of the plaintiff's claims may proceed.

DISCUSSION

Section 1915 “provide[s] an efficient means by which a court can screen for and

dismiss legally insufficient claims.” Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007)

(citing Shakur v. Selsky, 391 F.3d 106, 112 (2d Cir. 2004)). A court shall dismiss a

complaint in a civil action in which a prisoner seeks redress from a governmental entity,

or an officer or employee of a governmental entity, if the court determines that the

action (1) fails to state a claim upon which relief may be granted or (2) seeks monetary

relief against a defendant who is immune from such relief. See 28 U.S.C.

§ 1915A(b)(1)-(2). Generally, a court will afford a pro se plaintiff an opportunity to

amend or to be heard prior to dismissal “unless the court can rule out any possibility,

however unlikely it might be, that an amended complaint would succeed in stating a

claim.” Abbas, 480 F.3d at 639 (citation omitted); see also Cuoco v. Moritsugu, 222

F.3d 99, 112 (2d Cir. 2000) (“A pro se complaint is to be read liberally. Certainly the

court should not dismiss 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.”

(quoting Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999))). But

leave to amend pleadings may be denied when any amendment would be “futile.” Id.

I. SCREENING THE COMPLAINT

In evaluating the complaint, this Court accepts all factual allegations as true and

draws all inferences in the plaintiff’s favor. See Larkin v. Savage, 318 F.3d 138, 139 (2d

Cir. 2003) (per curiam); King v. Simpson, 189 F.3d 284, 287 (2d Cir. 1999). “Specific

facts are not necessary,” and the plaintiff “need only ‘give the defendant fair notice of

what the . . . claim is and the grounds upon which it rests.’” Erickson v. Pardus, 551

U.S. 89, 93 (2007) (alteration in original) (quoting Bell Atlantic Corp. v. Twombly, 550

U.S. 544, 555 (2007)); see also Boykin v. Keycorp, 521 F.3d 202, 213 (2d Cir. 2008)

(“[E]ven after Twombly, dismissal of a pro se claim as insufficiently pleaded is

appropriate only in the most unsustainable of cases.”). Although “a court is obliged to

construe [pro se] pleadings liberally, particularly when they allege civil rights violations,”

McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004), even pleadings submitted

pro se must meet the notice requirements of Rule 8 of the Federal Rules of Civil

Procedure, see Wynder v. McMahon, 360 F.3d 73, 76 (2d Cir. 2004).

The Court assumes familiarity with the factual and procedural background of this

action, as set forth in Judge Kahn’s comprehensive screening order, and refers to

specific details only as necessary to explain its decision. See Docket Item 6 at 3-10.

Briefly, Santos was injured in a motor vehicle accident prior to his incarceration and had

a metal rod surgically inserted into his right femur. While incarcerated, he suffered

ongoing pain from the accident, as well as complications related to the rod. Santos has

sued various Elmira and DOCCS officials for monetary and injunctive relief, asserting

that they acted unconstitutionally in response to his chronic pain. More specifically, he

has sued Anthony J. Annucci, DOCCS Commissioner, and Kevin W. Ott, M.D., under

the Eighth Amendment for deliberate indifference to his serious medical needs;

Sergeant John Doe # 1 and correctional officers Jeffrey P. Wood, Timothy A. Perry, J.

Hartman, and Christopher M. Learn under the First Amendment for retaliating against

him in response to his filing various grievance complaints; and correctional officer

Robert A. Ruppel under the Fourteenth Amendment for denying him due process of law

in the course of a disciplinary hearing. See Docket Item 1 at 2-7, 19-32.

II. SECTION 1983 CLAIMS

“To state a valid claim under 42 U.S.C. § 1983, the plaintiff must allege that the

challenged conduct (1) was attributable to a person acting under color of state law, and

(2) deprived the plaintiff of a right, privilege, or immunity secured by the Constitution or

laws of the United States.” Whalen v. County of Fulton, 126 F.3d 400, 405 (2d Cir.

1997) (citing Eagleston v. Guido, 41 F.3d 865, 875-76 (2d Cir. 1994)). “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) (citing City of Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985)).

A. Official-Capacity Claims

“The Eleventh Amendment bars suits against states and their officials unless the

state consents to suit, Congress abrogates the state’s immunity, or the case falls within

the Ex parte Young exception [for prospective injunctive relief].” Nat’l Ass’n for

Advancement of Colored People v. Merrill, 939 F.3d 470, 475 (2d Cir. 2019). “New

York has not waived its immunity, nor has Congress abrogated it.” Li v. Lorenzo, 712 F.

App’x 21 (2d Cir. 2017) (summary order) (citing Trotman v. Palisades Interstate Park

Comm’n, 557 F.2d 35, 38-40 (2d Cir. 1977); Dube v. State Univ. of N.Y., 900 F.2d 587,

594 (2d Cir. 1990)).

Santos has sued all of the named defendants in both their official and unofficial

capacities. See Docket Item 1 at 2-7. Santos’s official-capacity claims for monetary

damages are barred by the Eleventh Amendment and accordingly dismissed because

leave to amend would be “futile.” See Cuoco v, 222 F.3d at 112. His official-capacity

claims against defendants Annucci and Ott for injunctive relief are not barred by the

Eleventh Amendment, but they nevertheless are barred for the separate reasons

discussed in section III below. All claims against the defendants in their official

capacities therefore are dismissed.

B. Deliberate Indifference Claims against Annucci and Ott (Eighth

Amendment Claims)

A claim of inadequate medical care rises to the level of a constitutional violation

only when a defendant, operating under color of law, was deliberately indifferent to the

plaintiff’s serious medical needs. Estelle v. Gamble, 429 U.S. 97, 104-05 (1976); see

also Ross v. Kelly, 784 F. Supp. 35, 43-44 (W.D.N.Y.), aff'd, 970 F.2d 896 (2d Cir.

1992). ‟A serious medical condition exists where ‛the failure to treat a prisoner's

condition could result in further significant injury or the unnecessary and wanton

infliction of pain.’” Harrison v. Barkley, 219 F.3d 132, 136 (2d Cir. 2000) (quoting

Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998)).

An isolated failure to provide medical treatment, without more, is generally not

actionable unless the surrounding circumstances suggest a degree of

“deliberate[ness],” rather than inadvertence, in the failure to render meaningful

treatment. See Gill v. Mooney, 824 F.2d 192, 196 (2d Cir. 1987).

Thus, a complaint that a physician has been negligent in diagnosing or

treating a medical condition does not state a valid claim of medical

mistreatment under the Eighth Amendment. Medical malpractice does not

become a constitutional violation merely because the victim is a prisoner.

In order to state a cognizable claim, a prisoner must allege acts or

omissions sufficiently harmful to evidence deliberate indifference to serious

medical needs.

Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996) (quoting Estelle, 429 U.S. at 106

& n.14). At the same time, "while 'mere medical malpractice' is not tantamount to

deliberate indifference, certain instances of medical malpractice may rise to the level of

deliberate indifference,” such as “when the malpractice involves culpable recklessness,

i.e., an act or a failure to act by the prison doctor that evinces a conscious disregard of a

substantial risk of serious harm." Id. (citation omitted).

Here, Santos alleges that defendant Annucci promulgated an “[u]nwritten [p]olicy”

that resulted in Santos’s being denied narcotic medications. See Docket Item 1 at 11-

12. While incarcerated between 2013 and 2015, Santos was prescribed Percocet, a

narcotic pain relief medication. See id. at 11. But in December 2015, his medical

providers stopped providing this medication “due to a[n] ‘[u]nwritten [p]olicy’ that ha[d]

been authorized by [Annucci], stating that ‘[i]nmates . . . held under the [c]ustody of

[DOCCS] and in [the g]eneral [p]opulation shall not be provided with ‘opioid,’ ‘[n]arcotic,’

[and]/or ‘[a]busive[-]potential’ medications.” Id. As a consequence of this policy, and

notwithstanding Santos’s persistent complaints of pain, DOCCS officials at Clinton

Correctional Facility—and later at Attica, Elmira, Southport, and Auburn Correctional

Facilities2—“refused to provide [Santos] with” the previously-prescribed medications,

and Santos “[was] left suffering from . . . increasing[ ] [c]hronic [p]ain [and] [m]uscle

[s]tiffness.” Id. at 12-15.

To establish liability against a prison official under section 1983, a plaintiff must

allege that individual’s personal involvement in the alleged constitutional violation; it is

not enough to assert that the defendant is a “link[ ] in the prison[‘s] chain of command.”

See McKenna v. Wright, 386 F.3d 432, 437 (2d Cir. 2004); Colon v. Coughlin, 58 F.3d

865, 873 (2d Cir. 1995). Moreover, the theory of respondeat superior is not available in

a section 1983 action. See Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir. 2003). But

a supervisory prison official can be found to be personally involved in an alleged

constitutional violation in one of several ways:

(1) the defendant participated directly in the alleged constitutional violation,

(2) the defendant, after being informed of the violation through a report or

appeal, failed to remedy the wrong, (3) the defendant created a policy or

custom under which unconstitutional practices occurred, or allowed the

continuance of such a policy or custom, (4) the defendant was grossly

negligent in supervising subordinates who committed the wrongful acts, or

(5) the defendant exhibited deliberate indifference to the rights of inmates

by failing to act on information indicating that unconstitutional acts were

occurring.

Colon, 58 F.3d at 873 (citing Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994))

(emphasis added).

Santos has adequately alleged that Annucci was personally involved in denying

Santos certain medical treatment through his “policy or custom” of prohibiting the

provision of all narcotic drugs. The question is whether that alleged policy “result[ed] in

2 This severed action concerns Santos’s claims against Annucci only as they

relate to his time at Attica, Elmira, and Southport.

. . . the unnecessary and wanton infliction of pain.’” Harrison, 219 F.3d at 136 (citation

omitted)).

To that end, Santos also alleges that defendant Dr. Ott failed to provide

constitutionally-sufficient medical care. In March 2019, Santos was evaluated by Dr. Ott

for his “increasing[ ] [p]ain [and] [m]uscle [s]tiffness . . . on his back and right leg

throughout the day on a daily basis.” Docket Item 1 at 29. Dr. Ott “stated and informed

[Santos] that the adequate [t]reatment [p]lan for him . . . would consist of [p]ain [k]iller

[and] [m]uscle [r]elaxer [m]edication[,] as it ha[d] been prescribed to [Santos] during [a]

past consultation.” Id. at 30. Dr. Ott also “stated and informed [Santos] that [Santos]

[was] already schedule[d] for appointments” for various diagnostic testing, including an

MRI and CT scan, and to meet with various specialists, including a neurosurgeon and a

pain medicine specialist. Id. But after Santos “made a verbal complaint to [Dr. Ott]

about [Annucci’s] ‘[u]nwritten [p]olicy[,]’ . . . [Dr. Ott] immediately cancelled [and] denied”

the appointments and rescinded his prescriptions. Id. at 30-31. Dr. Ott stated: “Since

you . . . remind me, I . . . don’t even know how you got [these appointments], [given that]

we are not even allowed to provide you with [n]arcotic [m]edication. [The appointments]

w[ould] be redundant, [and a] waste of time and money.” Id. at 31.

Santos has adequately alleged that Annucci and Dr. Ott deliberately caused him

pain by denying him access to certain prescribed medications. As alleged in the

complaint, Dr. Ott was aware of Santos’s pain and prescribed certain medications to

treat that pain, but he then refused to provide those medications—a refusal based not

on a medical assessment but instead on a policy promulgated by Annucci that failed to

consider inmates’ unique medical needs. Santos’s allegations thus go beyond a dispute

about the proper treatment plan: he alleges that a DOCCS policy or custom leaves

medical providers without the discretion to prescribe indicated medications, and that this

blanket policy caused him needless suffering.

Although Santos does not point to any official statement evidencing the existence

of this policy, that deficiency is not fatal. An unofficial custom, by its nature, will not be

supported by official documentation but instead by practice. And in that respect, Santos

alleges that officials at five different DOCCS facilities cited Annucci’s “policy” in refusing

to provide him narcotic medications. At this early stage, that allegation is sufficient.

Santos’s Eighth Amendment claims against Annucci and Dr. Ott therefore may proceed.

C. Retaliation Claims Against Doe, Wood, Perry, Hartman, and Learn

(First Amendment Claims)

To establish a claim for retaliation under section 1983, a plaintiff must show that

(1) he engaged in constitutionally protected speech or conduct, (2) the defendants took

adverse action against him, and (3) there was a causal connection between the

protected speech or conduct and the adverse action. Espinal v. Goord, 558 F.3d 119,

128 (2d Cir. 2009); see also Gill v. Mooney, 824 F.2d 192, 194 (2d Cir. 1987) (“[A] claim

for relief may be stated under section 1983 if otherwise routine administrative decisions

are made in retaliation for the exercise of constitutionally protected rights.” (citing

Purcell v. Coughlin, 790 F.2d 263, 265 (2d Cir. 1986) (per curiam))). To prove the final

prong, the plaintiff “bears the burden of showing . . . that the protected conduct was a

substantial or motivating factor in the prison officials’ decision to [take the action they

did against the] plaintiff.” Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996) (citing

Mount Healthy Sch. Dist. v. Doyle, 429 U.S. 274, 287 (1977)). The plaintiff may rely on

circumstantial evidence to prove causation. See Colon, 58 F.3d at 872-73; see also

Espinal, 558 F.3d at 129 (“A plaintiff can establish a causal connection that suggests

retaliation by showing that protected activity was close in time to the adverse action.”).

“Ordinarily a plaintiff can survive a motion to dismiss based on the pleadings so

long as he has alleged facts, that if proven, would support a cause of action.” Johnson

v. Eggersdorf, 8 F. App’x 140, 144 (2d Cir. 2001) (summary order). “However, because

of the ‘ease with which claims of retaliation may be fabricated, [courts] examine

prisoners’ claims of retaliation with skepticism and particular care.’” Id. (quoting Colon,

58 F.3d at 872). “Because of the potential for abuse, ‘[courts] insist[ ] on a higher level

of detail in the pleadings.’” Id. (quoting Gill v. Mooney, 824 F.2d 192, 194 (2d Cir.

1987)). In the Second Circuit,

prisoner retaliation claims [fall] into three categories: (1) “a retaliation claim

supported by specific and detailed factual allegations which amount to a

persuasive case [and] ought usually to be pursued with full discovery;” (2)

“a complaint which alleges facts giving rise to a colorable suspicion of

retaliation[, and] will support at least documentary discovery;” [or] (3) “a

complaint which alleges retaliation in wholly conclusory terms [and] may

safely be dismissed on the pleadings alone[. In the final category], the

prisoner has no factual basis for the claim other than an adverse

administrative decision and the costs of discovery should not be imposed

on defendants.”

Id. (quoting Flaherty v Coughlin, 713 F.2d 10, 13 (2d Cir. 1983)).

Here, Santos alleges that defendants Doe, Wood, Perry, Hartman, and Learn

retaliated against him for his filing various grievance complaints. See Docket Item 1 at

15. While incarcerated at Elmira in November 2018, Santos filed two grievance

complaints, neither of which appears to have directly concerned Santos’s ongoing

health issues. See Docket Item 1-1 at 53 (alleging that “Debra Fuller at Attica C.F. is

consciously [and] purposely refusing to timely [and] adequately file, process [and]/or

[t]ransmit [Santos’s] grievances [and] . . . [a]ppeal to the [n]ext [s]tages”); id. at 55

(alleging that “Southport Medical PA Ben Oakes . . . retaliate[d] against [Santos] by

failing to provide [him] with medical care”). Doe collected the grievances from the

inmate deposit box, see Docket 1 at 15, but they never reached the Inmate Grievance

Committee, see Docket Item 1-1 at 57. After Santos resubmitted both grievances, Doe,

Wood, and Learn went to Santos’s cell, and Doe “informed [Santos] that the

grievance[s] . . . ha[d] not be[en] filed and w[ould] not be filed as long as [Doe] [was]

working at [Elmira].” Docket Item 1 at 17. Doe went on:

“I . . . will give you some advi[c]e and hope you take it. I will not be

processing [these] grievances and instead, I will thr[ow] them in the garbage

can. I highly advi[s]e you to not make any other attempts to file them or

even use the grievance [p]rogram here at [Elmira], because if you do, [it] is

going to upset me that you are going above my head, again, see, when I

get mad, [a lot] of bad things take place. Look around us, we don’t have

cameras here . . . like Attica does. So, don’t start ruffling the feathers here

kid, if I find out you are attempting to file [these] grievances, you will be

finding out the ha[r]d way how we do things at Elmira.”

Id. at 18. Santos did not file the grievances. Id.

About a month later, however, Santos submitted a “[h]arrassment [c]omplaint”

against Doe. Id. Over the course of the next three months, defendants Wood and

Learn “verbally harass[ed] [and] antagoniz[ed] [Santos].” Id. at 19. On March 15, 2019,

defendants Wood and Perry, accompanied by defendants Learn and Hartman,

conducted a frisk search of Santos. Id. at 20. They did not recover any contraband, so

they “conspire[d] to falsify a[n] [inmate misbehavior report] against [Santos].” Id. The

same four officers later searched Santos again and, although they did not find any

contraband, prepared a report asserting that they had found a “black metal ice pick type

weapon sharpened to a point.” Id. at 20. Based on that report, Santos was placed in

the Special Housing Unit (“SHU”). Id.

Defendant Ruppel held a disciplinary hearing over the course of several days in

March and April 2019. On April 15, 2019, Ruppel found Santos guilty of possessing a

weapon and sanctioned him with 180 days of confinement in the SHU. Id. at 26. But

Santos appealed the finding, and on June 3, 2019, the finding was reversed because

“[p]otentially relevant documentary evidence and witnesses [were] inadequately

addressed for [the] record.’” Id. at 26. Santos nevertheless spent a total of 90 days in

the SHU. Id. at 27.

Santos thus alleges that he engaged in protected activity, that the protected

activity and adverse action were relatively close in time, and that the defendants did not

have a non-retaliatory reason for the adverse action. The complaint therefore alleges

“facts giving rise to a colorable suspicion of retaliation,” see Johnson, 8 F. App’x at 144,

and Santos’s First Amendment claims against Doe, Wood, Perry, Hartman, and Learn

may proceed.

D. Procedural Due Process Claim against Ruppel (Fourteenth

Amendment Claim)

To state a due process claim with respect to a prison disciplinary hearing, an

inmate-plaintiff must allege that (1) “the confinement or restraint complained of create[d]

an ‘atypical and significant hardship . . . in relation to the ordinary incidents of prison

life,’” Cruz v. Gomez, 202 F.3d 593, 597 (2d Cir. 2000) (quoting Sandin v. Conner, 515

U.S. 472, 484 (1995)); and (2) “the state ha[d] granted its inmates, by regulation or by

statute, a protected liberty interest in remaining free from that confinement or restraint,”

id. (quoting Frazier v. Coughlin, 81 F.3d 313, 317 (2d Cir. 1996)). The inmate then must

show that in imposing the confinement or restraint, the defendant denied the inmate

some aspect of the process he was due, namely “[i] advance written notice of the

charges; [ii] a fair and impartial hearing officer; [iii] a reasonable opportunity to call

witnesses and present documentary evidence; [and iv] a written statement of the

disposition, including supporting facts and reasons for the action taken,” see Luna v.

Pico, 356 F.3d 481, 487 (2d Cir. 2004) (citation omitted); see also id. at 488 (“[T]he

requirements of due process are satisfied if some evidence supports the decision by the

prison disciplinary board . . . .” (alteration in original) (quoting Superintendent v. Hill, 472

U.S. 445, 455 (1985))).

Here, Santos alleges that defendant Ruppel “manipulate[d] the hearing

procedure to help cover[ ] up [for] defendants [Doe, Perry, Wood, Hartman, and Learn].”

Docket Item 1 at 25. More specifically, he claims that Ruppel ignored the testimony of

two witnesses who claimed that neither of the March 15, 2019 searches produced

contraband. Id.

Santos has adequately alleged that Ruppel denied him due process of law.

Santos’s claim that Ruppel was not impartial and that his decision was not supported by

“some evidence” is corroborated by DOCCS’s reversal of the decision. See id. at 26.

And the discipline Ruppel imposed—180 days in the SHU, ultimately shortened to 90

days—reasonably could constitute an “atypical and significant hardship . . . in relation to

the ordinary incidents of prison life,” see Cruz, 202 F.3d at 597 (citation omitted).

Although the Second Circuit has explained that “SHU confinements of fewer than 101

days” generally can meet this threshold only “if the conditions were more severe than

the normal SHU conditions . . . or a more fully developed record showed that even

relatively brief confinements under normal SHU conditions were, in fact, atypical,” it also

has “explicitly avoided a bright line rule that a certain period of SHU confinement

automatically fails to implicate due process rights.” Palmer v. Richards, 364 F.3d 60,

64-65 (2d Cir. 2004) (emphasis added). Because 90 days approaches the benchmark

discussed in Palmer, and because the Court does not yet have the benefit of a “fully

developed record” about the conditions of Santos’s confinement in the SHU, the Court

will not sua sponte dismiss Santos’s serious allegations. Santos’s procedural due

process claim against Ruppel may proceed.

E. John Doe Defendants

With respect to the First Amendment retaliation claims asserted against John

Doe No. 13 and “J. Hartman,” and pursuant to Valentin v. Dinkins, 121 F.3d 72 (2d Cir.

1997) (per curiam), DOCCS shall ascertain the full names of John Doe No. 1 and “J.

Hartman.” DOCCS also shall provide an address where these defendants may be

served. DOCCS need not undertake to defend or indemnify these individuals at this

juncture. This order merely provides a means by which Santos may name and properly

serve the defendants as instructed by the Second Circuit in Valentin.

DOCCS shall produce the information specified above regarding the identities of

John Doe No. 1 and “J. Hartman” within 35 days of the date of this order. The

information shall be forwarded to the Court’s Pro se Unit, United States District Court,

2120 Kenneth B. Keating Federal Building, 100 State Street, Rochester, New York

14614. Once this information is provided, Santos’s complaint shall be deemed

3 The complaint indicates that “John Doe #1” was a correctional officer at Elmira

with the rank of sergeant who “was designated as the area [s]upervisor [s]ergeant for

the Inmate Grievance Committee Program . . . between November 13, 2018, and April

30, 2019.” Docket Item 1 at 2. “J. Hartman” was an Elmira correctional officer “[w]hose

designated post was as G-Block Third Officer on March 15, 2019., for the 7-3 shift.” Id.

at 3.

amended to reflect the names of the defendants in place of John Doe No. 1 and “J.

Hartman,” and the United States Marshals Service shall effect service.

III. REQUEST FOR PRELIMINARY INJUNCTIVE RELIEF

Santos also asks this Court to order preliminary injunctive relief. Docket Item 4.

“A preliminary injunction is an equitable remedy and an act of discretion by the court.”

Am. Civil Liberties Union v. Clapper, 804 F.3d 617, 622 (2d Cir. 2015). “A party seeking

a preliminary injunction must generally show a likelihood of success on the merits, a

likelihood of irreparable harm in the absence of preliminary relief, that the balance of

equities tips in the party’s favor, and that an injunction is in the public interest.” Id.

(citing Winter v. NRDC, 555 U.S. 7, 20 (2008)). When the moving party is unable to

demonstrate a likelihood of success on the merits, a court still may issue a preliminary

injunction if the moving party shows “sufficiently serious questions going to the merits to

make them a fair ground for litigation and a balance of hardships tipping decidedly

toward the party requesting the preliminary relief.” Citigroup Glob. Mkts., Inc. v. VCG

Special Opportunities Master Fund Ltd., 598 F.3d 30, 35 (2d Cir. 2010) (quoting

Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir. 1979)).

To the extent Santos seeks injunctive relief against defendant Ott related to his

confinement at Elmira, “[i]t is settled in this Circuit that a transfer from a prison facility

moots an action for injunctive relief against the transferring facility.” Candelaria v.

Greifinger, 1998 WL 312375, at *2 (N.D.N.Y. June 8, 1998) (citing Prins v. Coughlin, 76

F.3d 504, 506 (2d Cir. 1996)). Accordingly, Santos’s claim for injunctive relief against

defendant Ott is dismissed.

And to the extent Santos seeks injunctive relief against Annucci, such relief

would relate to his current confinement at Auburn. Because Santos’s Auburn claims

remain with Judge Kahn, Santos’s request for preliminary injunctive relief against

Annucci is denied as well.

CONCLUSION

Because Santos meets the statutory requirements of 28 U.S.C. § 1915(a) and

has filed the required authorization, the Court grants his request to proceed in forma

pauperis. And for the reasons stated above, his claims proceed.

ORDER

In light of the above, IT IS HEREBY

ORDERED that Santos’s motion to proceed in forma pauperis, Docket Item 2, is

GRANTED; and it is further

ORDERED that Santos’s motion for a preliminary injunction, Docket Item 4, is

DENIED; and it is further

ORDERED that Santos’s claims against all defendants in their official capacities

and for injunctive relief are dismissed; and it is further

ORDERED that DOCCS shall provide the Court with the names and addresses

of John Doe No. 1 and “J. Hartman”—or a statement of written reasons why such

identification is improper or impossible—within 35 days of the date of this order; and

it is further

ORDERED that DOCCS’S failure to comply with this order may result in the

Court’s imposing sanctions under Rule 37 of the Federal Rules of Civil Procedure; and it

is further

ORDERED that the Clerk of Court shall cause the United States Marshal to serve

copies of the summons, complaint, and this order upon the named defendants (once

identified), without the plaintiff’s payment therefor, unpaid fees to be recoverable if this

action terminates by monetary award in the plaintiff’s favor; and it is further

ORDERED the Clerk of Court shall forward a copy of this order by email to

Michael Russo, Assistant Attorney General in Charge, Buffalo Regional Office

<Michael.Russo@ag.ny.gov>; and it is further

ORDERED, under 42 U.S.C. § 1997e(g), that once served, the defendants shall

answer the complaint; and it is further

ORDERED that Santos shall notify the Court in writing if his address changes.

The Court may dismiss the action if Santos fails to do so.

SO ORDERED.

Dated: July 6, 2020

Buffalo, New York

/s/ Hon. Lawrence J. Vilardo

LAWRENCE J. VILARDO

UNITED STATES DISTRICT JUDGE