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Darvie v. Countryman

August 11, 2008


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


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.


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


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 ...

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