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Henry v. Cuomo

February 19, 2008

PAUL HENRY, TIMMY WALKER, PLAINTIFFS,
v.
HON. ANDREW CUOMO, NYS ATTORNEY GENERAL AND JOHN B. LEMPKE, SUPERINTENDENT, DEFENDANTS.



The opinion of the court was delivered by: Michael A. Telesca United States District Judge

ORDER

INTRODUCTION

Plaintiffs pro se, Paul Henry and Timmy Walker, inmates of the Five Points Correctional Facility, were directed to amend their purported class action complaint to describe how each had been individually subjected to constitutional violation and what each defendant had specifically done that violated their rights (Docket No. 4). Both plaintiffs have now filed amended complaints that allege different things as to each plaintiff, and make no allegations against either of the two named defendants. Each has now named only Andrew Cuomo, Attorney General of the State of New York and John Lempke, Superintendent of Five Points Correctional Facility, omitting to rename Five Points Correctional Facility in their amended complaints. For the reasons discussed below, unless plaintiffs file a second amended complaint as directed below, the amended complaints will be dismissed with prejudice pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A.

DISCUSSION

As with the original complaint, 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(a) require the Court to conduct an initial screening of these amended complaints. In evaluating the amended complaints, the Court must accept as true all of the factual allegations and must draw all inferences in plaintiffs' 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). "To survive dismissal, the plaintiff must provide the grounds upon which his claim rests through factual allegations sufficient 'to raise a right to relief above the speculative level.'" ATSI Communications, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98, 2007 WL 1989336, *5 (2d Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, --- U.S. ----, ----, 127 S.Ct. 1955, 1965 (2007). "The settled rule is that a complaint should not be dismissed for failure to state a claim 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." McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004) (citations and internal quotation marks omitted) (applying both §§ 1915 and 1915A). "This rule applies with particular force where the plaintiff alleges civil rights violations or where the complaint is submitted pro se." Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir. 1998).

Plaintiffs bring 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 amended complaints, the Court finds that, unless plaintiffs file a second amended complaint as directed below, plaintiffs' 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.

Plaintiffs' claims are again all subject to dismissal with prejudice. In the previous complaint there was no indication that the allegations made related to either of the plaintiffs personally. The plaintiffs have now provided further allegations. Nevertheless, they have not allege any facts about the two named defendants, much less their personal involvement in the alleged violations. Nor have they, on the whole, alleged claims with sufficient detail that the Court could determine if they could state a claim against anyone.

Paul Henry's Allegations

Paul Henry alleges that unnamed mailroom personnel opened legal mail outside of his presence; unnamed mailroom personnel delayed, detained and destroyed in-coming and outgoing mail; he had to wait more than a month to see a doctor; C.O. Payne wrote a false misbehavior report that was upheld despite plaintiff showing contradictory evidence to the hearing officer; and finally, in a claim with no indication how the separate allegations relate to each other, plaintiff alleges that he was required to double-cell on pain of being sent to the Box, plaintiff suffers acute bronchitis and was never screened for this, nor diagnosed, and he is exposed to environmental tobacco smoke. The Court also notes that plaintiff clearly indicates that he has not exhausted some of these claims.*fn1

Timmy Walker's Allegations

Timmy Walker alleges that C.O. Payne repeatedly left plaintiff's name off of the "call out" list for religious services; Gallery Officers repeatedly gave his mail to other persons; plaintiff's mail has been delayed and destroyed by unnamed mailroom personnel; and Sgt. DePerno wrote a false misbehavior report.

As indicated above, plaintiffs have each named only Andrew Cuomo, the Attorney General of the State of New York and John Lempke, the Superintendent of Five Points. No allegations in either amended complaint relate to these two named defendants. Plaintiffs both fail to allege that either named defendant did anything, much less that they were responsible for the acts alleged. The following discussion in Richardson v. Goord, 347 F.3d 431 (2d Cir. 2003) makes clear why personal involvement of a defendant, even a supervisory defendant, is required to maintain an action under § 1983:

'[S]upervisor liability in a § 1983 action depends on a showing of some personal responsibility, and cannot rest on respondeat superior.' Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir.2003) (citing Al-Jundi v. Estate of Rockefeller, 885 F.2d 1060, 1065 (2d Cir.1989)). To establish the liability of a supervisory official under § 1983, a plaintiff must show the defendant's personal involvement in the alleged constitutional violations. See Green v. Bauvi, 46 F.3d 189, 194 (2d Cir.1995). By the same token, however, mere 'linkage in the prison chain of command' is insufficient to implicate a state commissioner of corrections or a prison superintendent in a § 1983 claim. Ayers v. Coughlin, 780 F.2d 205, 210 (2d Cir.1985); see also Wright v.Smith, 21 F.3d 496, 501 (2d Cir.1994) (noting that a defendant in a § 1983 action may not be held liable for constitutional violations merely because he held a high position of authority). Supervisor liability under § 1983 "can be shown in one or more of the following ways: (1) actual direct participation in the constitutional violation, (2) failure to remedy a wrong after being informed through a report or appeal, (3) creation of a policy or custom that sanctioned conduct amounting to a ...


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