The opinion of the court was delivered by: JAMES FRANCIS, Magistrate Judge
REPORT AND RECOMMENDATION
James Cole brings this action pro se pursuant to
42 U.S.C. § 1983, alleging violations of his Eighth Amendment rights during
his incarceration at the Otisville Correctional Facility
("Otisville"). The plaintiff contends that Ernest Edwards, the
Superintendent of Otisville; Glenn S. Goord, the Commissioner of
the New York State Department of Correctional Services ("DOCS");
and Thomas G. Eagen, the Director of DOCS's Inmate Grievance
Program, acted with deliberate indifference towards the
plaintiff's health by not ensuring the safety of the drinking
water when it became contaminated with H. pylori bacteria. Mr.
Cole further maintains that Dr. Robert Sarreck, a physician at
Otisville, and Ms. Hilda Miller, a nurse there, were deliberately indifferent to his
medical needs and afforded inadequate care for a bacterial
infection he allegedly contracted from the water. The plaintiff
seeks one million dollars in compensatory and punitive damages
and requests an injunction requiring that the water and pipes at
Otisville be tested regularly for contamination.
The defendants have brought a motion to dismiss the complaint
pursuant to Rules 12(b)(1), 12(b)(6), (8)(a), and 8(e) of the
Federal Rules of Civil Procedure for lack of subject matter
jurisdiction, failure to state a claim upon which relief may be
granted, and failure to plead facts that support entitlement to
For the reasons stated herein, I recommend that this action be
In 2001, the plaintiff, along with eight other inmates, brought
a pro se action in the Southern District of New York
asserting claims identical to those in this action. On November
20, 2002, the Honorable Allen G. Schwartz, U.S.D.J., dismissed
the complaint without prejudice on the ground that the claims had
not been administratively exhausted. Cherry v. Edwards, 01 Civ.
7886, 2002 WL 31619038, at *2 (S.D.N.Y. Nov. 20, 2002). In
response to this order, the plaintiff and seven other inmates
filed a grievance at the facility on January 2, 2002, requesting
monetary damages and testing of the facility's pipes and water supply. This grievance
was denied on January 12, 2002. (Defendants' Memorandum of Law in
Support of Motion to Dismiss Complaint ("Def. Memo."), Exh. C).
On February 18, 2003, the plaintiff re-filed the same claims in
the Northern District of New York. Cole v. Edwards, 03 Civ.
0203 (N.D.N.Y. 2003). (Def. Memo., Exh. D).*fn1 The
defendants filed a motion to dismiss in June 2003, which the
Honorable Paul A. Magnuso, U.S.D.J., granted in part in November
2003. The court (1) dismissed the claims against Dr. Sarreck and
Ms. Miller without prejudice because they were unexhausted, (2)
dismissed the claims brought against Commissioner Goord and Mr.
Eagen in their official capacities, (3) declined to dismiss the
claims brought against these defendants as individuals, and (4)
ordered the plaintiff to show cause for his failure to properly
serve the complaint on Mr. Edwards. (Def. Memo., Exh. E). The
court declined to dismiss the claims on statute of limitations
grounds because the plaintiff had failed to specify the exact
dates on which he incurred his injuries. In this Memorandum and
Order, Judge Magnuso also denied the defendants' motion to
transfer the plaintiff's case to the Southern District of New
York. (Def. Memo., Exh. E). However, on January 6, 2004, after
noting that the plaintiff had previously filed two similar suits in the Southern District of New York,
Judge Magnuso transferred the Northern District case to this
The complaint in the instant case, which is identical to that
in Cherry and in Mr. Cole's Northern District case, states that
in 1997 and 1998, the water supply at Otisville became
contaminated with H. pylori bacteria. (Complaint, ¶¶ 2, 3,
5).*fn2 During those years, a number of inmates incarcerated
at Otisville began to display active symptoms of a bacterial
infection. (Complaint, ¶¶ 5, 6). After multiple grievances and
complaints made by the inmates to the Inmate Liaison Committee,
DOCS shipped uncontaminated water to the facility for the
inmates' consumption. (Complaint, ¶¶ 2, 3). After several months,
Superintendent Edwards decided that the original water supply was
safe, and ordered the removal of the new water supply.
(Complaint, ¶ 3). Following this decision, the inmates again
began to experience symptoms of H. pylori infection, and they
filed grievances in 1998 and 1999 demanding to have the water
tested for bacteria. (Complaint, ¶¶ 5, 6, 10). The inmates,
however, continued to show symptoms through 2001. (Complaint, ¶¶
5, 6, 10).
The pro se office of the Southern District of New York
received the instant complaint on March 6, 2003, and it was formally filed on July 15, 2003. (Complaint at 1). The defendants
brought this motion to dismiss the complaint on January 5, 2004.
The defendants contend that the plaintiff's claim should be
dismissed because (1) Mr. Cole has engaged in "forum shopping,"
(2) he has failed to show that he is entitled to relief, (3)
Judge Magnuso's Memorandum and Order dismissing the claims
against Dr. Sarreck and Ms. Miller bars the claims against them
here under the principles of res judicata, (4) the plaintiff has
failed to administratively exhaust his claims against Dr. Sarreck
and Ms. Miller, (5) the complaint is time-barred, (6)
Commissioner Goord and Mr. Eagen were not personally involved in
the alleged constitutional deprivations, and (7) the plaintiff
failed to properly serve Mr. Eagen, Dr. Sarreck, and Ms. Miller.
Only the first of these arguments need be reached.
In considering a motion to dismiss pursuant to Rule 12(b) of
the Federal Rules of Civil Procedure, the court must accept as
true all factual allegations in the complaint and must draw all
inferences in favor of the plaintiff. Leatherman v. Tarrant
County Narcotics Intelligence and Coordination Unit,
507 U.S. 163, 164 (1993); York v. Association of the Bar of New York,
286 F.3d 122, 125 (2d Cir. 2002); Hernandez v. Coughlin,
18 F.3d 133, 136 (2d Cir. 1994). Accordingly, the complaint may not
be dismissed "unless it appears beyond doubt that the plaintiff can prove no
set of facts in support of his claim which would entitle him to
relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957) (footnote
omitted). These principles are even more strictly applied where
the plaintiff alleges civil rights violations, Hernandez,
18 F.3d at 136; Branum v. Clark, 927 F.2d 698, 705 (2d Cir. 1991),
or where he is proceeding pro se. Haines v. Kerner,
404 U.S. 519, 520 (1972); McPherson v. Coombe, 174 F.3d 276, 280
(2d Cir. 1999).
The defendants contend that because the plaintiff filed his
complaint in the Northern District of New York on February 18,
2003, and submitted an identical one in the Southern District of
New York on March 6, 2003, the instant action should be ...