United States District Court, S.D. New York
August 13, 2004.
JAMES COLE, Plaintiff,
ERNEST EDWARDS, Superintendent, Otisville Correctional Facility; GLENN GOORD, Commissioner, Department of Correctional Services; T.G. EAGEN, Director, Central Office Grievance Committee; DR. SARRECK, Medical Staff, Otisville Correctional Facility; H. MILLER, Medical Staff/N.A., Otisville Correctional Facility, Defendants.
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.
A. Standard of Review
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).
B. "Forum Shopping"
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 dismissed
because Mr. Cole engaged in "forum shopping." (Def. Memo. at 8,
"The Second Circuit has long adhered to the first-filed
doctrine in deciding which case to dismiss where there are
competing litigations. Where there are two competing lawsuits,
the first suit should have priority, absent the showing of
balance of convenience or special circumstances giving priority
to the second." Kellen Co. v. Calphalon Corp.,
54 F. Supp. 2d 218, 221 (S.D.N.Y. 1999)
(internal quotation marks, alterations, and citations omitted); accord
Adam v. Jacobs, 950 F.2d 89,
92 (2d Cir. 1991); First City National Bank & Trust Co. v.
Simmons, 878 F.2d 76, 79 (2d Cir. 1989); Semmes Motors, Inc. v. Ford Motor Co.,
429 F.2d 1197, 1203 (2d Cir. 1970). The first-filed rule seeks to
conserve judicial resources and avoid duplicative litigation.
See Adam, 950 F.2d at 92; First City, 878 F.2d at 80;
Kellen, 54 F. Supp. 2d at 221; cf. Colorado River Water
Conservation District v. United States, 424 U.S. 800, 817 (1976)
("As between federal district courts, . . . the general principle
is to avoid duplicative litigation.").
In most cases, the first-filed doctrine is implicated where the
plaintiff in the first action is the defendant in the second.
Semmes, 429 F.2d at 1202; Kellen, 54 F. Supp. 2d at 221. In
such instances, "the plaintiff in the first court is vigorously
pressing his desire to proceed in an appropriate forum of his
choice and objecting to the defendant's thwarting this by a later
suit elsewhere." Semmes, 429 F.2d at 1202. To avoid the
possible inequities arising from this "race to the courthouse,"
Kellen, 54 F. Supp. 2d at 223, the court typically considers a
variety of factors to determine which action should yield to the
other; such factors include: "(1) the convenience of witnesses,
(2) the location of relevant documents and the relative ease of
access to sources of proof, (3) the convenience of the parties,
(4) the locus of the operative facts, (5) the availability of
process to compel attendance of unwilling witnesses; (6) the
relative means of the parties; (7) a forum's familiarity with the
governing law; (8) the weight accorded a plaintiff's choice of forum, (9) trial
efficiency and the interests of justice based on the totality of
the circumstances." Id. at 221. The court may also consider any
"special circumstances," such as whether the defendant in the
second action won the race to the courthouse for "questionable"
reasons a typical example being forum-shopping. Id. at 223.
The instant case is different. Here, the plaintiff filed his
first action in the Northern District of New York, then within
one month simply submitted an identical complaint (the instant
action) in this District. Accordingly, this case does not
implicate the usual concerns underlying a "race to the
courthouse" case, and instead, appears to require a
straightforward application of the first-filed rule. Under this
doctrine, the instant case should be dismissed in favor of the
first-filed Northern District case.
Two notable cases in this Circuit provide support for this
result. In Semmes, a plaintiff filed an action in New Jersey,
then filed an almost identical action in the Southern District of
New York. 429 F.2d at 1200. The Second Circuit imposed a stay on
the second action, refusing to recognize "any exception [to the
first-filed rule] for cases where the same party is plaintiff in
both actions." Id. at 1203. The Second Circuit stated that
"[c]ourts . . . [should] not be called upon to duplicate each
other's work in cases involving the same issues and the same
parties," and noted in particular "the danger that plaintiffs may
engage in forum shopping or, more accurately, judge shopping." Id. Consequently, the
stay was imposed even though the plaintiff voluntarily agreed to
discontinue the first action and the convenience of the parties
and witnesses appeared to favor the second forum.*fn3 Id.
More recently, in Kellen, a court in this district followed
the holding of Semmes and dismissed a second-filed action by a
plaintiff who had previously initiated a similar action in Ohio.
54 F. Supp. 2d at 223-24. As in Semmes, the Kellen Court
found the first-filed doctrine to be equally applicable where the
plaintiff in both actions was the same, and noted that "[t]he
Ohio and New York actions clearly involve the same issues, the
same parties and the same subject matter." Id. at 222. The
Court also noted that the two cases would constitute the same
"claim" or "nucleus of operative fact" for res judicata purposes,
and would therefore "force [the defendant] to defend
simultaneously two lawsuits arising from the same transaction and
requiring substantially the same witnesses and other evidence."
Id. The Court held that "[s]uch a wasteful use of this Court's
resources is unwise and unnecessary." Id. Dismissal of the instant case follows from the reasoning of
Semmes and Kellen. Here, the two cases are not just
"analogous"; they are identical. The complaints filed in the
Northern and Southern Districts are indistinguishable and involve
the same claims, the same parties, and the same subject matter.
Moreover, the Northern District case has now been transferred to
this district, obviating any convenience factors that may have
favored one district over the other. Under these circumstances,
permitting this action to continue would only allow the plaintiff
to engage in "judge shopping," and is unwarranted in light of the
duplicative litigation and waste of judicial resources it would
For the foregoing reasons, I recommend that this action be
dismissed without prejudice to the plaintiff's proceeding with
his first-filed action, which has been docketed in this district
as No. 04 Civ. 1936 (PKC). Pursuant to 28 U.S.C. § 636(b)(1) and
Rules 72, 6(a), and 6(e) of the Federal Rules of Civil Procedure,
the parties shall have ten (10) days from this date to file
written objections to this Report and Recommendation. Such
objections shall be filed with the Clerk of the Court, with extra
copies delivered to the chambers of the Honorable Richard C.
Casey, U.S.D.J., Room 1350, and to the chambers of the
undersigned, Room 1960, 500 Pearl Street, New York, New York
10007. Failure to file timely objections will preclude appellate