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Cooke v. Stern

January 28, 2008

JOHN COOKE, PLAINTIFF,
v.
STERN, SUPT. PROGRAMS, BARE HILL CORRECTIONAL FACILITY; S. FLANAGAN; AND MULLERVILLE, R.N., DEFENDANTS.
JOHN COOKE, PLAINTIFF,
v.
MS. S. FLANAGAN AND MS. K. MULLERVILLE, R.N., CONSOLIDATED DEFENDANTS.



The opinion of the court was delivered by: Gary L. Sharpe, United States District Judge

DECISION and ORDER

The Clerk has sent to the Court for review two civil rights complaints, together with applications to proceed in forma pauperis, from plaintiff John Cooke, who is currently incarcerated at Franklin Correctional Facility.*fn1 See Cooke v. Stern, No. 9:07-CV-1292, Dkt. No. 1 ("Cooke I") and Cooke v. Flanagan, No. 9:08-CV-0074, Dkt. No. 1 ("Cooke II"). For a more complete statement of Cooke's claims, refer to the complaints.

I. Consolidation

The facts alleged in both complaints appear to involve common questions of law and/or fact. In each, Cooke alleges that while incarcerated at Barehill Correctional Facility, defendants were deliberately indifferent to his medical needs; assigned him to programming without taking into consideration his disability; and failed to protect him from a known danger.*fn2

Therefore, the Court consolidates these actions. FED. R. CIV. P. 42(a). Cooke I shall be the lead case and all further filings shall be made inCooke I. The pleading docketed as the complaint in Cooke I shall be the complaint in this consolidated action.

II. In Forma Pauperis Applications

Turning to Cooke's in forma pauperis applications, after reviewing the applications and Cooke's completed inmate authorization forms, the Court finds that the Cooke may properly proceed with this matter in forma pauperis.

III. Must File Amended Complaint

The Court has also considered the sufficiency of the complaint (Cooke I, Dkt. No. 1) in light of 28 U.S.C. § 1915(e) and 28 U.S.C. § 1915A.

Section 1915(e) directs that, when a plaintiff seeks to proceed in forma pauperis, "(2) . . . 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). Thus, even if a plaintiff meets the financial criteria to commence an action in forma pauperis, it is the court's responsibility to determine whether the complaint that the plaintiff has filed may properly be maintained in this District before the court may permit the plaintiff to proceed with his action in forma pauperis. See id.

Moreover, under 28 U.S.C. § 1915A, a court must review any complaint in a civil action in which a prisoner seeks redress from officers or employees of a governmental agency 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); see also Carr v. Dvorin, 171 F.3d 115, 116 (2d Cir. 1999) (per curiam) (citation omitted).

Plaintiff brings this action pursuant to 42 U.S.C. §1983. Section 1983 establishes a cause of action for "the deprivation of any rights, privileges, or immunities secured by the Constitution and laws" of the United States. German v. Fed. Home Loan Mortg. Corp., 885 F.Supp. 537, 573 (S.D.N.Y. 1995) (citing Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983)) (footnote omitted); see also Myers v. Wollowitz, No. 95-CV-0272, 1995 WL 236245, at *2 (N.D.N.Y. Apr. 10, 1995) (McAvoy, C.J.) (§ 1983 "is the vehicle by which individuals may seek redress for alleged violations of their constitutional rights.") (citation omitted). Parties may not be held liable under § 1983 unless it can be established that they have acted under the color of state law. See, e.g., Rounseville v. Zahl, 13 F.3d 625, 628 (2d Cir. 1994) (noting state action requirement under § 1983); Wise v. Battistoni, No. 92-CV-4288, 1992 WL 380914 (S.D.N.Y., Dec. 10, 1992) (same) (citations omitted). State action is an essential element of any § 1983 claim. See Gentile v. Republic Tobacco Co., No. 95-CV-1500, 1995 WL 743719, at *2 (N.D.N.Y. Dec. 6, 1995) (Pooler, J.) (citing Velaire v. City of Schenectady, 862 F.Supp. 774, 776 (N.D.N.Y. 1994)) (McAvoy, C.J.) (citation omitted)).

"It is well settled in this Circuit that 'personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.'" Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (quoting Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir. 1991)) (other citations omitted).

Plaintiff identifies three defendants -- Mr. Stern, Program Superintendent; Ms. S. Flanagan, Senior Counselor; and R.N. Mullerville. Cooke I, Dkt. No. 1 at 1-2. Cooke's present complaint fails to allege specific acts by specific defendants, and thus fails to show personal involvement for all of the defendants. In fact, the body of the complaint contains no allegations whatsoever as to defendants Stern and Flanagan.*fn3 Cook I, Dkt. No. 1 at 4-6. Cooke's complaint does not contain any allegations to support ...


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