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Wilson v. King

May 15, 2008

RICHARD WILSON, PLAINTIFF,
v.
SGT. KING; C.O. JOHN DOE #1; C.O. JOHN DOE #2; DR. E. WEISSMAN; DR. ELLIS; DR. MICHAEL ARONIS; P.A. TICHENOR; NURSE TRAVERS, DEFENDANTS.



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

MEMORANDUM-DECISION and ORDER

I. Background

Presently before this Court is a civil rights complaint filed by Richard Wilson. Wilson has also filed an application for leave to proceed with this action in forma pauperis.

In his pro se complaint, Wilson asserts claims arising out of his confinement at Upstate Correctional Facility.*fn1 Wilson claims that defendants failed to protect him from a known risk of injury by his cellmate, who assaulted Wilson on May 27, 2005. Dkt. No. 1 at 3-5. Wilson further claims that he was denied medical care for the serious injuries suffered in the assault, and was later found unconscious and unresponsive in his cell. Id. at 7. Following surgery on his ruptured spleen, Wilson remained hospitalized for eleven days. Id. at 8-9. Wilson claims that defendants acted with deliberate indifference to his serious medical condition upon his return to Upstate Correctional Facility. Also included in the complaint is a claim that defendant Michael Aronis, MD, the surgeon at Alice Hyde Medical Center, rendered substandard care and committed several errors in the course of the surgery. Id. For a complete statement of Wilson's claims, reference is made to the complaint.

II. Discussion

(A) In Forma Pauperis Application

Based upon a review of Wilson's in forma pauperis application, the Court finds that he has demonstrated sufficient economic need.

(B) The Sufficiency of the Complaint

Since the Court has found that Wilson meets the financial criteria for commencing this case in forma pauperis, the Court must consider the sufficiency of the complaint in light of 28 U.S.C. § 1915(e). Section 1915(e) directs that when a plaintiff seeks to proceed in forma pauperis, the Court:

(2) [S]hall 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)(B). Thus, even if a plaintiff meets the financial criteria to commence an action in forma pauperis, it is the Court's responsibility to determine that a complaint may properly be maintained in the District before it may permit the plaintiff to proceed with his or her action in forma pauperis.

In this case, Wilson asserts several claims for the alleged violation of his constitutional rights pursuant to 42 U.S.C. § 1983. Parties may not be held liable under this section 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); Wise v. Battistoni, No. 92-CV-4288, 1992 WL 380914 (S.D.N.Y. Dec. 10, 1992). It is the duty of the plaintiff to allege state action on the part of each defendant named in a complaint, and a court may dismiss an action under 28 U.S.C. § 1915(e) against a defendant where the plaintiff fails to plead such a nexus. See, e.g., Carollo-Gardner v. Diners Club, 628 F.Supp. 1253, 1256-57 (E.D.N.Y. 1986); DeMatteis v. Eastman Kodak Co., 511 F.2d 306, 311 (2d Cir.), modified on other grounds, 520 F.2d 409 (2d Cir. 1975.).

Plaintiff has named Dr. Michael Aronis as a defendant in this action. Dr. Aronis is identified as the surgeon who operated on plaintiff in May, 2005 at Alice Hyde Medical Center. Plaintiff has not alleged any nexus between the State of New York and this individual, nor does it appear that Alice Hyde Medical Center is a "state actor" for purposes of § 1983. See Schlein v. Milford Hospital, 561 F.2d 427 (2d Cir. 1977) ...


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