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Darvie v. Countryman

July 10, 2008

JOSEPH DARVIE, PLAINTIFF,
v.
M. COUNTRYMAN, CORRECTIONAL OFFICER, EASTERN C.F.; K. SIMMONS, CORRECTIONAL LIEUTENANT; EASTERN C.F.; J. COLEMAN, CORRECTIONAL CAPTAIN, EASTERN, C.F.; P. HEALY, DEPUTY SUPERINTENDENT OF SECURITY, EASTERN C.F.; WILLIAM. BROWN, SUPERINTENDENT, EASTERN C.F.; DEFENDANTS.



The opinion of the court was delivered by: George H. Lowe, United States Magistrate Judge

ORDER and REPORT-RECOMMENDATION

This pro se prisoner civil rights action, commenced by Joseph Darvie ("Plaintiff") pursuant to 42 U.S.C. § 1983, has been referred to me by the Honorable Gary L. Sharpe, United States District Judge, to hear and determine all pretrial matters (of a non-dispositive nature) and issue report-recommendations on all dispositive matters before the Court, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c). Currently before the Court is Plaintiff's motion for leave to proceed in forma pauperis. (Dkt. No. 2.) For the reasons discussed below, I deny Plaintiff's motion without prejudice, and I recommend that the Court issue an Order sua sponte dismissing his Complaint (pursuant to 28 U.S.C. §§ 1915[e][2][B][ii], 1915A and Fed. R. Civ. P. 12[h][3]) if he does not, within thirty (30) days of the date of the Court's final Order with respect to this Report-Recommendation, do the following two things: (1) file with the Court a signed Amended Complaint that corrects the pleading deficiencies described below in Part II.B. of this Report-Recommendation; and (2) file a completed and signed copy of the Northern District of New York's Inmate Authorization Form and its Application to Proceed Without the Full Prepayment of Fees (including the "Certificate" portion of that Application).

I. SUMMARY OF PLAINTIFF'S COMPLAINT

Construed with the extra leniency normally afforded to pleadings drafted by pro se civil rights litigants, Plaintiff's Complaint alleges that, between November 29, 2005, and December 2, 2005, five employees of the New York State Department of Correctional Services ("Defendants") violated his rights under the Eighth and Fourteenth Amendments in the following ways at Eastern Correctional Facility ("Eastern C.F."): (1) they wrongfully refused to let Plaintiff use a shower despite his possession of a valid medical excuse / permit authorizing him to use the shower due to his affliction with multiple sclerosis; (2) they issued him a false misbehavior report charging him with refusing a direct order and committing a movement violation; (3) they wrongfully denied his request for a witness (a neurologist) at his resulting disciplinary hearing (at which he was convicted of the disciplinary charge); (4) they wrongfully failed to rectify the above-alleged misconduct after learning of it; and (5) they wrongfully caused him, through the aforementioned actions, to be subjected to keep-lock confinement and the loss of all privileges for a period of thirty (30) days (i.e., from November 29, 2005, to December 29, 2005). (See generally Dkt. No. 1 [Plf.'s Compl.].)

Among the other injuries Plaintiff alleges are the following: (1) intentionally causing him to be transferred from Eastern Correctional Facility to Clinton Correctional Facility (where he fell down several times); (2) causing the loss and/or destruction of various of his personal property during or after his prison transfer; (3) causing him to lose back pay from "Industry employment" due to his placement in keep-lock confinement; (4) causing him to spend funds to file an Article 78 proceeding in New York State Supreme Court; and (5) leaving a record of his disciplinary conviction in his "Inmate Assignment Program" File, which will adversely affect his chance of release on parole. (Id. at Parts III and V.) It should be noted that Plaintiff sues Defendants in both their individual and official capacities. (Id. at Part V.)

II. DISCUSSION

A. Plaintiff's Motion for Leave to Proceed In Forma Pauperis

Plaintiff has signed an Inmate Authorization Form permitting DOCS to deduct (over time) the required filing fee of three-hundred-fifty-dollars from his prison trust fund account. (Dkt. No. 3.) However, that Inmate Authorization Form permits DOCS to disburse that amount to the U.S. District Court for the Southern District of New York (the Court from which this action has been transferred). (Id.) Plaintiff must sign an Inmate Authorization Form permitting DOCS to disburse that amount to the U.S. District Court for the Northern District of New York.

Furthermore, Plaintiff has submitted a Request to Proceed In Forma Pauperis. (Dkt. No. 2.) However, that Request (which was submitted on a form from the U.S. District Court for the Southern District of New York), does not contain a Certification from the appropriate official at Plaintiff's correctional facility with regard to the balance, and average balance, in any account in Plaintiff's name at the facility. (Id.) As a result, Plaintiff's Request does not satisfy this Court's requirement that such information be provided in his Application to Proceed without the Full Prepayment of Fees. I decline to overlook this failure in light of Plaintiff's allegation of facts indicating that there may be such an account in his name, specifically, his allegation that (1) he once enjoyed the right to participate in prison programming which resulted in what he calls "Industry employment," and (2) he suffers from multiple sclerosis, for which he may be receiving public benefits.

For both of these reasons, I deny Plaintiff's motion to proceed in forma pauperis without prejudice (i.e., with leave to renew). In addition, since the defects in Plaintiff's motion would be corrected if he completed and signed the Northern District of New York's Inmate Authorization Form and Application to Proceed Without the Full Prepayment of Fees, I direct the Clerk's Office to send him those two forms along with a copy of this Order. Finally, I recommend that the Court issue an Order dismissing Plaintiff's Complaint if, within thirty (30) days of the date of the Court's final Order with respect to this Report-Recommendation, Plaintiff does not file a completed and signed copy of (1) the Northern District of New York's Inmate Authorization Form and (2) its Application to Proceed Without the Full Prepayment of Fees, including the "Certificate" portion of that Application (unless he pays the Court's filing fee of three-hundred fifty dollars).

B. Pleading Deficiencies in Plaintiff's Complaint

Setting aside the deficiencies in Plaintiff's motion for leave to proceed in forma pauperis, I find that Plaintiff's Complaint is subject to sua sponte dismissal (pursuant to 28 U.S.C. §§ 1915[e][2][B][ii], 1915A, and Fed. R. Civ. P. 12[h][3]) because there are four fatal problems with Plaintiff's Complaint.

1. Lack of Subject-Matter Jurisdiction Over Claims Against Defendants in Their Official Capacities

The Eleventh Amendment has long been construed as barring a citizen from bringing a suit against his or her own state in federal court, under the fundamental principle of "sovereign immunity." See U.S. Const. amend XI ("The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign ...


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