The opinion of the court was delivered by: JOHN T. ELFVIN, Senior District Judge
Plaintiff, who is incarcerated in the Monroe County Jail
Correctional Facility, has requested permission to proceed in
forma pauperis pursuant to 28 U.S.C. § 1915(a) and has both met
the statutory requirements and furnished the Court with a signed
Authorization. Accordingly, plaintiff's request to proceed as a
poor person is hereby granted. For the reasons set forth below,
some of his claims are dismissed, his motion for appointment of
counsel is denied at this time, and service by the United States
Marshal is directed.
In the complaint, plaintiff sets forth one claim. Plaintiff
alleges that on December 13, 2004 he was denied adequate medical
attention while held at the Monroe County Jail, despite his
requests and dramatic symptoms. He claims that he was feeling the
"chills" and vomiting, but a nurse sent him away. He then
suffered a stroke and was placed in a wheel chair. Nevertheless, the doctor did not see him for two
days. Further, despite the doctor's order for medication,
plaintiff alleges that he did not receive the medication. He
claims that he suffered for six days, and was unable to walk. He
claims that despite his two grievances to the Sheriff, which
allegedly went unanswered, his complaints were not remedied.
Plaintiff crossed out the blank section provided for a second
claim and indicated that the attached copies of grievances
regarding further denials of medication were still pending.
Sections 1915(e)(2)(B) and 1915A(a) of 28 U.S.C. require the
Court to conduct an initial screening of this complaint. In
evaluating the complaint, the Court must accept as true all
factual allegations and must draw all inferences in plaintiff's
favor. See King v. Simpson, 189 F.3d 284, 287 (2d Cir. 1999).
Dismissal is not appropriate "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); and see Chance v. Armstrong, 143 F.3d 698,
701 (2d Cir. 1998).
Plaintiff brings this action pursuant to 42 U.S.C. § 1983. "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)). Based on its
evaluation of the complaint, the Court finds that some of plaintiff's claims must be dismissed pursuant
to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b) because they fail
to state a claim upon which relief may be granted.
Plaintiff names the Monroe County Jail, Medical Personal et al., Mental
Health, Head Nurse of Mental Health 7:00 and 3:00, Dr. Connie, and Booking
Nurse 12/13/04 7:00 and 3:00, as defendants. A prerequisite for liability
under a § 1983 claim is "personal involvement" by the defendants in the
alleged constitutional deprivation. Spencer v. Doe, 139 F.3d 107,
112 (2d Cir. 1998).
A defendant may be "personally involved" in causing a
constitutional deprivation if: (1) defendant
participated directly in the alleged infraction; or
(2) acting in a supervisory capacity, defendant (a)
failed to remedy a continuing or egregious wrong
after learning of a violation, (b) created a policy
or custom under which the unconstitutional practices
occurred or allowed such policy or custom to
continue, or (c) was "grossly negligent" in managing
subordinates who actually caused the constitutional
Candelaria v. Coughlin, 787 F.Supp. 368, 372 (S.D.N.Y. 1992)
(citing Williams v. Smith, 781 F.2d 319
, 323-24 (2d Cir.
1986)). "The bare fact that [the defendant] occupies a high
position in the New York prison hierarchy is insufficient to
sustain [plaintiff's] claim" Colon v. Coughlin, 58 F.3d 865,
874 (2d Cir. 1995). A claim which fails to demonstrate a
defendant's personal involvement in the alleged constitutional
deprivation is subject to sua sponte dismissal. See Neitzke v.
Williams, 490 U.S. 319
, 323 n. 2 (1989); Montero v. Travis,
171 F.3d 757
, 761-62 (2d. Cir. 1999). Here, plaintiff has not
provided any indication that the Monroe County Jail, and every
doctor, nurse, and mental health worker at the Monroe County Jail
was personally involved in the complained-of events. Accordingly, plaintiff's claims against Monroe County Jail, Medical Personal
et al., and Mental Health must be dismissed.
The claims are sufficient to survive this initial review as to
Dr. Connie and to the Head Nurse of Mental Health and the Booking
Nurse working the 7:00 a.m. and 3:00 p.m. shift on December 13,
2004. Plaintiff is directed to identify the "John Doe" defendants
through discovery as soon as possible, and then apply to this
Court for an order directing amendment of the caption and service
on these defendants as soon as they have been identified.
Because plaintiff has met the statutory requirements of
28 U.S.C. § 1915(a) and filed an Authorization with respect to the
filing fee, his request to proceed in forma pauperis is hereby
granted. For the reasons discussed above, plaintiff's claims
against Monroe County Jail, Medical Personal et al., and Mental
Health are dismissed with prejudice pursuant to
28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A. The U.S. Marshal is directed to
serve the summons and complaint on Dr. Connie.
Because issue has not yet been joined in other words, because
defendants have not responded to the complaint yet there is
insufficient information to make the necessary assessment of
plaintiff's claims under the standards promulgated by Hendricks
v. Coughlin, 114 F.3d 390, 392 (2d Cir. 1997), and Hodge v.
Police Officers, 802 F.2d 58 (2d Cir. 1986). Therefore
plaintiff's motion for appointment of counsel is denied without
prejudice at this time. It is ...