UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK
August 11, 2008
JOSEPH DARVIE, PLAINTIFF,
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 and Title II of the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12131 et seq., 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 are (1) Plaintiff's second motion to proceed in forma pauperis, (2) his Amended Complaint (attempting to correct the pleading deficiencies identified in my Report-Recommendation of July 10, 2008), and (3) his motion for the appointment of counsel. (Dkt. Nos. 9, 10, 11, 12.) For the reasons discussed below, I grant Plaintiff's second motion to proceed in forma pauperis, and I deny without prejudice his motion for the appointment of counsel. I also recommend that the Court sua sponte dismiss the following parts of Plaintiff's Amended Complaint: (1) his claim for inadequate prison conditions under the Eighth Amendment; (2) his claim for inadequate medical care under the Eighth Amendment; and (3) his procedural due process claim under the Fourteenth Amendment.
I. PLAINTIFF'S SECOND MOTION TO PROCEED IN FORMA PAUPERIS
In his second motion to proceed in forma pauperis, Plaintiff hascorrected the deficiencies identified in his first such motion. (See Dkt. No. 6, at 3-4 [Report-Recommendation]; compare Dkt. Nos. 2-3 [Plf.'s First Motion] with Dkt. Nos. 10, 11 [Plf.'s Second Motion].) Accordingly, Plaintiff's in forma pauperis application (Dkt. No. 2) is granted.*fn1
II. PLAINTIFF'S AMENDED COMPLAINT
A. Summary of Plaintiff's Amended Complaint
The filing of Plaintiff's Amended Complaint renders his original Complaint a nullity. See N.D.N.Y. L.R. 7.1(a)(4) ("[A] proposed amended pleading . . . will supersede the original pleading in all respects."); Int'l Controls Corp. v. Vesco, 556 F.2d 665, 668 (2d Cir.1977) ("It is well established that an amended complaint ordinarily supersedes the original, and renders it of no legal effect.") [citations omitted], cert. denied, 434 U.S. 1014 (1978); accord, Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir. 1994); Dluhos v. Floating and Abandoned Vessel, 162 F.3d 63, 68 (2d Cir. 1998).*fn2
Construed with the extra leniency normally afforded to pleadings drafted by pro se civil rights litigants, Plaintiff's Amended Complaint alleges that, between November 16, 2005, and December 2, 2005, at Eastern Correctional Facility ("Eastern C.F."), five employees of the New York State Department of Correctional Services ("Defendants") violated (1) his right against cruel-and-unusual prison conditions under the Eighth Amendment, (2) his right against inadequate-medical care under the Eighth Amendment, (3) his right to procedural due process under the Fourteenth Amendment, (4) his right to equal protection under the law, under the Fourteenth Amendment, and (5) his rights under the Americans with Disabilities Act.*fn3 More specifically, Plaintiff alleges that Defendants violated these rights in the following nine ways:
(1) On November 29, 2005, Defendant Countryman wrongfully refused to let Plaintiff use a "block shower" despite knowing of his possession of a "permit from the medical department" authorizing him to use that shower due to his affliction with multiple sclerosis;*fn4
(2) On November 29, 2005, Defendant Countryman knowingly issued Plaintiff a false misbehavior report charging him with refusing a direct order and committing a movement violation;*fn5
(3) On December 2, 2005, at the disciplinary hearing on the aforementioned misbehavior report, Defendant Simmons wrongfully "allotted [only] fourteen (14) minutes total time for [Plaintiff to defend himself] at the hearing," wrongfully disregarded documentary evidence adduced by Plaintiff during the hearing, and wrongfully denied Plaintiff's request for a witness (a neurologist) on the purported ground that the "[w]itness was not present at [the] time of the incident";*fn6
(4) Between November 16, 2005, and December 7, 2005, Defendants Brown, Coleman and Healy wrongfully failed to prevent or rectify the above-alleged misconduct after being informed of it;*fn7
(5) On December 2, 2005, Defendants wrongfully caused Plaintiff, through the aforementioned misconduct, to be convicted of the two referenced disciplinary charges (i.e., refusing a direct order and committing a movement violation), and to be sentenced to forty-four (44) days of keep-lock confinement and the loss of all privileges--which sentence was modified to thirty (30) days on December 28, 2005, by a correctional officer at another correctional facility;*fn8
(6) By causing him to be wrongfully convicted of the referenced disciplinary charges, Defendants caused Plaintiff to lose the ability to "participate in [prison] programs to [obtain] a [reasonable] chance at parole";*fn9
(7) On or about December 16, 2005, Defendants wrongfully "abused [the prison's] disciplinary procedures" by knowingly using those procedures to cause him to be transferred from Eastern C.F. to Clinton Correctional Facility ("Clinton C.F.") because he "could not walk fast enough or well enough to defendant's satisfaction";*fn10
(8) During an unspecified time period, Defendants "procrastinate[d] [for more than one year] in approving treatments [and proper medical examinations] that [would have been beneficial to Plaintiff, specifically his referral to a neurologist], stating that such treatments are not FDA approved;"*fn11 and
(9) Over a 15-month time span at Eastern C.F., Defendants caused 11 misbehavior reports to be filed against Plaintiff because of his disability.*fn12
It should be noted that Plaintiff appears to sue Defendants not simply in their individual or personal capacities but in their official capacities.*fn13
B. Recently Clarified Legal Standard Governing Dismissals under Fed. R. Civ. P. 12(b)(6) for Failure to State a Claim
Under Fed. R. Civ. P. 12(b)(6) of the Federal Rules of Civil Procedure, a complaint may be dismissed "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). It has long been understood that such a dismissal may be based on either or both of two grounds:
(1) the "[in]sufficiency of the pleading" under Fed. R. Civ. P. 8(a)(2);*fn14 or (2) the fact that the claim is not cognizable.*fn15
Rule 8(a)(2) requires that a pleading include "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Such a statement must "give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests."*fn16 The purpose of this rule is to "facilitate a proper decision on the merits."*fn17 A complaint that fails to comply with this rule "presents far too heavy a burden in terms of defendants' duty to shape a comprehensive defense and provides no meaningful basis for the Court to assess the sufficiency of [plaintiff's] claims."*fn18
The Supreme Court has long characterized this pleading requirement under Fed. R. Civ. P. 8(a)(2) as "simplified" and "liberal," and has repeatedly rejected judicially established pleading requirements that exceed this liberal requirement.*fn19 However, it is well established that even this liberal notice pleading standard "has its limits."*fn20 As a result, several Supreme Court decisions, and Second Circuit decisions, exist holding that a pleading has failed to meet this liberal notice pleading standard.*fn21
Most notably, in the recent decision of Bell Atlantic Corporation v. Twombly, the Supreme Court, in reversing an appellate decision holding that a complaint had stated a claim upon which relief could be granted, "retire[d]" the famous statement by the Court in Conley v. Gibson, 355 U.S. 41, 45-46 (1957), 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." 127 S.Ct. 1955, 1968-69 (2007).*fn22 Rather than turning on the conceivability of an actionable claim, the Court clarified, the Rule 8 standard turns on the "plausibility" of an actionable claim. Id. at 1965-74. More specifically, the Court held that, for a plaintiff's complaint to state a claim, his "[f]actual allegations must be enough to raise a right to relief above the speculative level [to a plausible level]" assuming, of course, that all the allegations in the complaint are true. Id. at 1965 [citations omitted]. What this means, on a practical level, is that there must be "plausible grounds to infer [actionable conduct]," or, in other words, "enough fact to raise a reasonable expectation that discovery will reveal evidence of [actionable conduct]." Id.
Of course, the Second Circuit has repeatedly recognized the controlling nature of the clarified plausibility standard that was articulated by the Supreme Court in Twombly. See Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir. 2007) ("[W]e believe the [Supreme] Court [in Bell Atlantic Corp. v. Twombly] is . . . requiring a flexible 'plausibility standard,' which obliges a pleader to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible.") [emphasis in original]; In re Elevator Antitrust Litigation, 502 F.3d 47, 50 (2d Cir. 2007) ("We affirm the district court's dismissal of the conspiracy claims because plaintiffs are unable to allege facts that would provide 'plausible grounds to infer an agreement' [under Bell Atlantic v. Twombly]"); cf. Goldstein v. Pataki, 07- CV-2537, 2008 U.S. App. LEXIS 2241, at *14 (2d Cir. Feb. 1, 2008) ("Twombly requires . . . that the complaint's '[f]actual allegations be enough to raise a right to relief above the speculative level . . . .'") [internal citation omitted].
I note that Fed. R. Civ. P. 8's plausibly standard, explained in Twombly, was in no way diminished by the Supreme Court's subsequent decision in Erickson v. Pardus, 127 S.Ct. 2197 (2007). In Erickson, a district court had dismissed a pro se prisoner's civil rights complaint because, although the complaint was otherwise factually specific as to how the prisoner's hepatis C medication had been wrongfully terminated by prison officials for a period of approximately 18 months, the complaint failed to allege facts plausibly suggesting that the termination caused the prisoner "substantial harm." 127 S.Ct. at 2199. The Supreme Court vacated and remanded the case because (1) under Fed. R. Civ. P. 8 and Twombly, all that is required is a "a short and plain statement of the claim" sufficient to "give the defendant fair notice" of the claim and "the grounds upon which it rests," and (2) the plaintiff had alleged that the termination of his hepatitis C medication for 18 months was "endangering [his] life" and that he was "still in need of treatment for [the] disease." Id. at 2200. While Erickson does not elaborate much further on its rationale, a careful reading of the decision (and the dissent by Justice Thomas) reveals a point that is perhaps so obvious that it did not deserve mentioning in the short decision: a claim of deliberate indifference to a serious medical need under the Eighth Amendment involves two elements, i.e., the existence of a sufficiently serious medical need possessed by the plaintiff, and the existence of a deliberately indifferent mental state possessed by prison officials with regard to that sufficiently serious medical need. The Erickson decision had to do with only the first element, not the second element. Id. at 2199-2200. The decision was implicitly recognizing that an allegation by a plaintiff that, during the relevant time period, he suffered from hepatis C is, in and of itself, a factual allegation plausibly suggesting that he possessed a sufficiently serious medical need; the plaintiff need not also allege that he suffered an independent and "substantial injury" as a result of the termination of his hepatis C medication. Id. This point of law is hardly a novel one.*fn23 Thus, the plausibility standard still governs the Court's analysis of the pleading sufficiency of Plaintiff's claims.
Having said all of that, it should be emphasized that, "[i]n reviewing a complaint for dismissal under Fed. R. Civ. P. 12(b)(6), the court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor."*fn24 "This standard is applied with even greater force where the plaintiff alleges civil rights violations or where the complaint is submitted pro se."*fn25 In other words, while all pleadings are to be construed liberally, pro se civil rights pleadings are to be construed with an extra degree of liberality. For example, the mandate to read the papers of pro se litigants generously makes it appropriate to consider a plaintiff's papers in opposition to a defendant's motion to dismiss as effectively amending the allegations of the plaintiff's complaint, to the extent that those factual assertions are consistent with the allegations of the plaintiff's complaint.*fn26 Moreover, "courts must construe pro se pleadings broadly, and interpret them to raise the strongest arguments that they suggest."*fn27
Furthermore, when addressing a pro se complaint, generally a district court "should not dismiss without granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated."*fn28 (Of course, granting a pro se plaintiff an opportunity to amend is not required where, as here, the plaintiff has already been given a chance to amend his pleading.)*fn29
However, when a plaintiff is proceeding pro se, "all normal rules of pleading are not absolutely suspended."*fn30 For example, an opportunity to amend should be denied where "the problem with [plaintiff's] causes of action is substantive" such that "[b]etter pleading will not cure it."*fn31
C. Pleading Deficiencies in Plaintiff's Amended Complaint
As a I found with regard to the entirety of Plaintiff's original Complaint, I find that certain claims asserted in Plaintiff's Amended Complaint are subject to sua sponte dismissal (pursuant to 28 U.S.C. §§ 1915[e][B][ii], 1915A) because there are fatal problems with those claims.
1. Failure to State an Inadequate-Prison-Conditions Claim Under the Eighth Amendment
"[A] prison official violates the Eighth Amendment only when two requirements are met. First, the deprivation must be, objectively, 'sufficiently serious'. . . . [Second,] a prison official must have a 'sufficiently culpable state of mind.'" Farmer v. Brennan, 511 U.S. 825, 834 (1994). "In prison-conditions cases that state of mind is one of deliberate indifference to inmate health or safety . . . ." Farmer, 511 U.S. at 834. Generally, to prevail on a claim of inadequate prison conditions, a plaintiff must show two things: (1) that the conditions of his confinement resulted in deprivation that was sufficiently serious; and (2) that the defendant acted with deliberate indifference to the plaintiff's health or safety. Farmer v. Brennan, 511 U.S. 825, 834 (1994); Davidson v. Murray, 371 F. Supp.2d 361, 370 (W.D.N.Y. 2005).
With respect to the first prong (i.e., the sufficiently serious nature of the deprivation), the denial of a single shower to a prisoner (for whatever reason) does not violate the Eighth Amendment.*fn32 Furthermore, to the extent that Plaintiff is attempting to assert an Eighth Amendment claim based on the prison conditions that he experienced following his disciplinary conviction (e.g., his keep-lock confinement and prison transfer), Plaintiff does not allege facts plausibly suggesting that, taken as a whole, those conditions were so severe as to deprive him of "the minimal civilized measure of life's necessities," Farmer, 511 U.S. at 834, such as medical care, food, water, warmth or a toilet.
With respect to the second prong (i.e., the mental state of the defendants), to the extent that Plaintiff is attempting to assert an Eighth Amendment claim based on the prison conditions to which he was subjected during and after his prison transfer (e.g., the falls that he sustained, and property he lost, during or after his prison transfer, etc.), he fails to allege facts plausibly suggesting that any Defendant in this action knew that he would experience those prison conditions, or even that he would be transferred as a result of their actions. (See Dkt. No. 1 [Plf.'s Compl.].) It must be remembered that "deliberate indifference describes a state of mind more blameworthy than negligence."*fn33 Rather, deliberate indifference is a state of mind akin to criminal recklessness.*fn34 Here, there are no facts alleged plausibly suggesting such recklessness.
For both of these two alternative reasons, I recommend that the Court issue an Order sua sponte dismissing the Eighth Amendment inadequate-prison-conditions claim asserted in Plaintiff's Amended Complaint.
2. Failure to State an Inadequate-Medical-Care Claim Under the Eighth Amendment
Generally, to prevail on a claim of inadequate medical care, a plaintiff must show two things: (1) that the plaintiff had a sufficiently serious medical need; and (2) that the defendant was deliberately indifferent to that serious medical need. Estelle v. Gamble, 429 U.S. 97, 104 (1976); Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998).
To be sufficiently serious for purposes of the Constitution, a medical condition must be "a condition of urgency, one that may produce death, degeneration, or extreme pain." Nance v. Kelly, 912 F.2d 605, 607 (2d Cir. 1990) (Pratt, J. dissenting) [citations omitted], accord, Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1996), cert. denied, 513 U.S. 1154 (1995); Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998). Here, Plaintiff alleges that, during the time in question, he suffered from multiple sclerosis. (Dkt. No. 9, ¶¶ 3, 8 [Plf.'s Am. Compl.].) For the sake of brevity, I will assume that Plaintiff has alleged facts plausibly suggesting that he had a sufficiently serious medical need.
Rather, the problem with Plaintiff's claim (at least from his perspective) is that he has failed to allege facts plausibly suggesting that any of the five Defendants in this action was deliberately indifferent to that seriousmedical need. As explained above in Part II.C.1. of this Report-Recommendation, deliberate indifference describes a state of mind more blameworthy than negligence; deliberate indifference is a state of mind akin to criminal recklessness. Here, Plaintiff's inadequate-medical-care claim alleges that, during an unspecified time period, Defendants "procrastinate[d] [for more than one year] in approving treatments [and proper medical examinations] that [would have been beneficial to Plaintiff, specifically his referral to a neurologist], stating that such treatments are not FDA approved."*fn35
For the sake of argument, I will assume that this year-long delay occurred within the three-year statute-of-limitations period--even though Plaintiff appears to allege that the delay occurred more than three years ago, and that he is relying on the "continuing violation doctrine." (Dkt. No. 9, ¶ 3 [Plf.'s Am. Compl.].) I will also assume that the facts alleged plausibly suggest that the delay in approving a referral to a nuerologist was reckless--although this is far from certain, in my mind. (Id.)
However, I cannot imagine how any Defendant could possibly have caused such a delay in referring Plaintiff to a neurologist given that (1) none of them are alleged to be medical care providers but correctional officers or supervisors of correctional officers, and (2) Plaintiff alleges no facts plausibly suggesting that they played any role whatsoever in the decision not to refer Plaintiff to a neurologist.*fn36 Indeed, to the contrary, Plaintiff appears to allege that it was a third-party, a "Dr. Forte" (now deceased) who was responsible for that delay.*fn37
I note that supervisors such as Defendants Coleman, Brown and Healey may not be held liable under 42 U.S.C. § 1983 simply because of their positions as supervisors.*fn38 Rather, supervisory personnel may be considered "personally involved" only if they (1) directly participated in the violation, (2) failed to remedy that violation after learning of it through a report or appeal, (3) created, or allowed to continue, a policy or custom under which the violation occurred, (4) had been grossly negligent in managing subordinates who caused the violation, or (5) exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that the violation was occurring.*fn39 Here, Plaintiff has offered no factual allegations plausibly suggesting such personal involvement by Defendants Coleman, Brown and Healey in the inadequate-medical-care that Plaintiff allegedly received.*fn40
For all of these reasons, I recommend that the Court issue an Order sua sponte dismissing the Eighth Amendment inadequate-medical-care claim asserted in Plaintiff's Amended Complaint.
3. Failure to State a Procedural Due Process Claim Under the Fourteenth Amendment
The Due Process Clause of the Fourteenth Amendment contains both a substantive component and a procedural component. Zinernon v. Burch, 494 U.S. 113, 125 (1990). The substantive component "bars certain arbitrary, wrongful government actions regardless of the fairness of the procedures used to implement them." Zinernon, 494 U.S. at 125 [internal quotations marks and citation omitted]. The procedural component bars "the deprivation by state action of a constitutionally protected interest in life, liberty, or property . . . without due process of law." Id. at 125-126 [internal quotations marks and citations omitted; emphasis in original]. One of the differences between the two claims is that a substantive due process violation "is complete when the wrongful action is taken," while a procedural due process violation "is not complete unless and until the State fails to provide due process" (which may occur after the wrongful action in question). Id. Here, I do not liberally construe Plaintiff's Amended Complaint as attempting to assert anything other than a procedural due process claim under the Fourteenth Amendment. (See Dkt. No. 9, ¶¶ 2, 4-6, 8, 10, 22 [Plf.'s Am. Compl.].).
"[Courts] examine procedural due process questions in two steps: the first asks whether there exists a [protected] liberty or property interest which has been interfered with by the State . . . ; the second examines whether the procedures attendant upon that deprivation were constitutionally sufficient . . . ." Kentucky Dept. of Corr. v. Thompson, 490 U.S. 454, 460 (1989). With regard to the first question (i.e., whether the plaintiff enjoyed a protected liberty interest), the Supreme Court has held that liberty interests protected by the Fourteenth Amendment's Due Process Clause "will generally be limited to freedom from restraint which . . . imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandlin v. Connor, 515 U.S. 472, 483-484 (1995).
Here, Plaintiff alleges that the result of the improperly conducted disciplinary hearing was a sentence of forty-four (44) days of keep-lock confinement (and a commensurate loss of privileges)--only thirty (30) days of which was served.*fn41 Moreover, conspicuously missing from Plaintiff's detailed Amended Complaint are any allegations that, while in keep-lock confinement, he was denied food, clothing, bedding, heat, running water, showers, toiletries, medicine, visitors, books, an opportunity to exercise, etc. (See generally Dkt. No. 9 [Plf.'s Am. Compl.].) In other words, it appears that the conditions of his keep-lock confinement were the ordinary conditions of keep-lock confinement in New York State correctional facilities. Under the circumstances, I find that Plaintiff has not alleged facts plausibly suggesting that he possessed, during the disciplinary hearing, a liberty interest that was protected by the Fourteenth Amendment.*fn42
With regard to Plaintiff's allegations of being issued a false misbehavior report, I note that "a prison inmate has no general constitutional right to be free from being falsely accused in a misbehavior report."*fn43 In addition, "[t]he filing of a false report does not, of itself, implicate the guard who filed it in constitutional violations which occur at a subsequent disciplinary hearing."*fn44
The only way that false accusations contained in a misbehavior report can rise to the level of a constitutional violation is when there has been additional adverse action such as "retaliation against the prisoner for exercising a constitutional right."*fn45 Here, Plaintiff does not allege facts plausibly suggesting such retaliation. (See generally Dkt. No. 9 [Plf.'s Am. Compl.].)
Finally, with regard to Plaintiff's allegation of being wrongfully transferred to another correctional facility, I note that a prisoner has no due process right to not be transferred to another prison.*fn46 Granted, a prisoner has a First Amendment right to not be transferred in retaliation for exercising a constitutional right.*fn47 However, again, here, Plaintiff has not alleged facts plausibly suggesting any such retaliation. (See generally Dkt. No. 9 [Plf.'s Am. Compl.].)
For all of these reasons, I recommend that the Court issue an Order sua sponte dismissing Plaintiff's Fourteenth Amendment procedural due process claim.
4. Equal Protection Claim Under the Fourteenth Amendment
To state a claim for a violation of the Equal Protection Clause, a plaintiff must allege facts plausibly suggesting that he was intentionally treated differently from others similarly situated as a result of intentional or purposeful discrimination directed at an identifiable or suspect class. Travis v. N.Y. State Div. of Parole, 96-CV-0759, 1998 U.S. Dist. LEXIS 23417, at *11 (N.D.N.Y. Aug. 26, 1998) (Sharpe, M.J.), adopted, 96-CV-0759, Decision and Order (N.D.N.Y. filed Nov. 2, 1998) (McAvoy, C.J.). Where the alleged classification involves a "suspect class" or "quasi-suspect class," the alleged classification is subject to "strict scrutiny by a court. Travis, 1998 U.S. Dist. LEXIS 23417, at *11.*fn48 In other circumstances, the alleged classification is subject to only "rational basis scrutiny." Travis, 1998 U.S. Dist. LEXIS 23417, at *11-12. To survive such scrutiny, the alleged classification need only be "rationally related" to a "legitimate state interest." Id.; Holley, 2007 U.S. Dist. LEXIS 64699, at *23; Coleman, 363 F. Supp.2d at 902.
Here, Plaintiff has alleged that he was treated differently from others similarly situated because of his multiple sclerosis condition. (Dkt. No. 9, ¶¶ 4, 5, 10, 22 [Plf.'s Am. Compl.) Specifically, he alleges that he was treated differently from those not afflicted with multiple sclerosis in that he was (1) denied the ability to participate in prison programs, (2) transferred from Eastern C.F. to Clinton C.F. because he "could not walk fast enough or well enough to defendant's satisfaction," and (3) issued eleven misbehavior reports over a 15-month time span at Eastern C.F. (Dkt. No. 9, ¶¶ 4, 5, 8, 10, 11, 22 [Plf.'s Am. Compl.].) In addition, he alleges that, as a result of this disparate treatment, he suffered "ever[-]increasing amounts of pain and discomfort [due to his inability] to continue to [participate in prison] program[s], [and] work, and to basically function as [any] person with total motor coordination." (Id. at ¶ 4.)
I have some trouble finding that Plaintiff has alleged facts plausibly suggesting that (1) his disciplinary conviction, transfer or 11 misbehavior reports were caused by his disability, or (2) that any of those three things caused him physical "pain and discomfort."*fn49 However, given the special solicitude normally afforded to pro se civil rights plaintiffs such as Plaintiff, I am unable to make such a finding sua sponte (i.e., without the benefit of briefing by Defendants on a motion to dismiss for failure to state a claim).
For these reasons, I recommend that the Court not, at this time, issue an Order sua sponte dismissing Plaintiff's Fourteenth Amendment equal protection claim. I emphasize that this recommendation in no way implies that Plaintiff's Fourteenth Amendment equal protection claim is, in fact, viable under Fed. R. Civ. P. 8, 10, and 12.
5. Discrimination Claim Under the Americans with Disabilities Act
Title II of the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12131 et seq. ("ADA") applies to inmates in state prison. See Georgia v. Goodman, 546 U.S. 151, 153-60 (2006) (reversing decision that paraplegic prisoner had not stated claim under Title II of the ADA).*fn50
In order to state a claim of disability discrimination under Title II of the ADA, a plaintiff must allege facts plausibly suggesting the existence of three elements: (1) he is a qualified individual with a disability; (2) he was either excluded from participation in or denied the benefits of a public entity's services, programs or activities or was otherwise discriminated against by the public entity; and (3) such exclusion, denial or discrimination was by reason of his disability. Goonewardena v. New York, 475 F. Supp.2d 310, 324 (S.D.N.Y. 2007).
Here, I have some trouble finding that Plaintiff has alleged facts plausibly suggesting that he was excluded from the unidentified prison program to which he refers because of his disability (as opposed to being so excluded because of his disciplinary conviction). (Dkt. No. 9, ¶¶ 4, 8, 11, 12 [Plf.'s Am. Compl.].) I also have some trouble finding that Plaintiff has alleged facts plausibly suggesting that he was transferred from Eastern C.F. to Clinton C.F. because of his disability (as opposed to being transferred for some other reason such as exceeding what Plaintiff calls the "60 day keeplock within one year rule"). (Dkt. No. 9, ¶¶ 2, 5, 10 [Plf.'s Am. Compl.].) Finally, I have some trouble finding that Plaintiff was issued 11 misbehavior reports by Defendants at Eastern C.F. within a 15 month period because of his disability (as opposed to being issued those reports because of rule violations). (Dkt. No. 9, ¶ 22 [Plf.'s Am. Compl.].) However, again, given the special solicitude normally afforded to pro se civil rights plaintiffs such as Plaintiff, I am unable to so find sua sponte (i.e., without the benefit of briefing by Defendants on a motion to dismiss for failure to state a claim).
For these reasons, I recommend that the Court not, at this time, issue an Order sua sponte dismissing Plaintiff's ADA claim. I emphasize that this recommendation in no way implies that Plaintiff's ADA claim is, in fact, viable under Fed. R. Civ. P. 8, 10, and 12.
6. Denial of Opportunity to Amend Allegations During Appeal from this Report-Recommendation
I anticipate that, during his likely objections to this Report-Recommendation, Plaintiff will assert additional allegations, in an attempt to effectively amend the allegations of his Amended Complaint. I respectfully recommend that the Court, in exercising its discretion on the matter, decline to permit him to so amend his Amended Complaint.
As an initial matter, the special leniency normally afforded pro se civil rights litigants in no way requires the Court to grant a plaintiff an opportunity to amend his pleading when he has already been given a chance to amend his pleading (i.e., through the filing of an Amended Complaint).*fn51 Rather, the decision of whether or not to accept such a proposed amendment rests in the sound discretion of the district court. See Hynes v. Squillance, 143 F.3d 653, 656 (2d Cir. 1998) ("Considerations of efficiency and fairness militate in favor of a full evidentiary submission for the Magistrate Judge's consideration, and we have upheld the exercise of the district court's discretion in refusing to allow supplementation of the record upon the district court's de novo review.") (affirming decision by Scullin, J., of the Northern District of New York) [citations omitted].
Here, Plaintiff has already had the benefit of (1) my Report-Recommendation of July 10, 2008, detailing the deficiencies in his original Complaint, and (2) a full and fair opportunity to correct those deficiencies through the filing of an Amended Complaint. Permitting him to assert self-serving allegations at the last minute, during an appeal from this Report-Recommendation, would undermine the "[c]onsiderations of efficiency and fairness [that] militate in favor of a full . . . submission for the Magistrate Judge's consideration." Hynes, 143 F.3d at 656.
For these reasons, I recommend that the Court, in exercising its discretion on the issue, deny any request by Plaintiff to amend the allegations of his Amended Complaint, during any objections to this Report-Recommendation.
III. PLAINTIFF'S MOTION FOR THE APPOINTMENT OF COUNSEL
Courts cannot utilize a bright-line test in determining whether counsel should be appointed on behalf of an indigent party. Hendricks v. Coughlin, 114 F.3d 390, 392-93 (2d Cir. 1997). Instead, a number of factors must be carefully considered by the court in ruling upon such a motion. Among these factors are:
The indigent's ability to investigate the crucial facts, whether conflicting evidence implicating the need for cross examination will be the major proof presented to the fact finder, the indigent's ability to present the case, the complexity of the legal issues and any special reason in that case why appointment of counsel would be more likely to lead to a just determination.
Terminate Control Corp. v. Horowitz, 28 F.3d 1335, 1341 (2d Cir. 1994) (quoting Hodge v. Police Officers, 802 F.2d 58, 61 [2d Cir. 1986]). This is not to say that all, or indeed any, of these factors are controlling in a particular case. Rather, each case must be decided on its own facts. Velasquez v. O'Keefe, 899 F. Supp. 972, 974 (N.D.N.Y. 1995) (citing Hodge, 802 F.2d at 61).
Here, a review of the file reveals that (1) the case does not present particularly novel or complex issues and (2) it appears to the Court as though, to date, Plaintiff has been able to effectively litigate this action. While it is possible that there will be conflicting evidence implicating the need for cross-examination at the time of the trial, as is the case in many actions brought under 42 U.S.C. § 1983 by pro se litigants, "this factor alone is not determinative of a motion for appointment of counsel." Velasquez, 899 F. Supp. at 974. Furthermore, it is highly probable that this Court will appoint trial counsel at the final pretrial conference. Finally, this Court is unaware of any special reasons why appointment of counsel at this time would be more likely to lead to a just determination of this litigation.*fn52
ACCORDINGLY, it is
ORDERED that Plaintiff's second motion to proceed in forma pauperis (Dkt. No. 10) is GRANTED; and it is further
ORDERED that Plaintiff's motion for the appointment of counsel (Dkt. No. 12) is DENIED without prejudice; and it is further
RECOMMENDED that the Court issue an Order sua sponte DISMISSING the following three claims asserted in Plaintiff's Amended Complaint (Dkt. No. 9), pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A: (1) his claim for inadequate prison conditions under the Eighth Amendment; (2) his claim for inadequate medical care under the Eighth Amendment; and (3) his procedural due process claim under the Fourteenth Amendment; and it is further RECOMMENDED that the Court not, at this time, sua sponte dismiss Plaintiff's equal protection claim under the Fourteenth Amendment, or his claim under the Americans with Disabilities Act; and it is further
RECOMMENDED that the Court, in exercising its discretion on the issue, deny any request by Plaintiff to effectively amend the allegations of his Amended Complaint, during any objections to this Report-Recommendation; and it is further
ORDERED that, in the event that this Report-Recommendation is adopted by District Judge Sharpe, the Clerk's Office shall, within FOURTEEN (14) DAYS after the issuance of that Order of adoption, do the following: (1) issue summonses and forward them, along with copies of the Amended Complaint, to the United States Marshal for service upon the named Defendants; (2) forward a copy of the summons and Amended Complaint by mail to the Office of the Attorney General for the State of New York, together with a copy of this Order and Report-Recommendation; (3) provide the Superintendent of Plaintiff's correctional facility, designated by Plaintiff as his current location, with a copy of Plaintiff's authorization form and notify the official that this action has been filed and that Plaintiff is required to pay the entire statutory filing fee of $350.00 pursuant to 28 U.S.C. § 1915; and (4) provide a copy of Plaintiff's authorization form to the Financial Deputy of the Clerk's Office; and it is further
ORDERED that Plaintiff must comply with any requests by the Clerk's Office for any documents that are necessary to maintain this action, and Plaintiff must, upon penalty of dismissal, promptly notify the Clerk's Office and all parties or their counsel of any change in Plaintiff's address.
BE ADVISED that any objections to this Report-Recommendation must be filed with the Clerk of this Court within TEN (10) WORKING DAYS, PLUS THREE (3) CALENDAR DAYS from the date of this Report-Recommendation. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); N.D.N.Y.L.R. 72.1(c); Fed. R. Civ. P. 6(a)(2), (d).
BE ALSO ADVISED that the District Court, on de novo review, will ordinarily refuse to consider arguments, case law and/or evidentiary material that could have been, but were not, presented to the Magistrate Judge in the first instance.*fn53
BE ALSO ADVISED that the failure to file timely objections to this Report-Recommendation will PRECLUDE LATER APPELLATE REVIEW of any Order of judgment that will be entered. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Sec'y of H.H.S., 892 F.2d 15 [2d Cir. 1989]).