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In re Brown

January 7, 2009

IN RE ANDREW BROWN, PLAINTIFF,


The opinion of the court was delivered by: Thomas J. McAVOY, Senior United States District Judge

MEMORANDUM DECISION and ORDER

The Clerk has sent the above "Complaint" to the court for its review. (Dkt. No. 1). Plaintiff did not file either an application to proceed in forma pauperis or an inmate authorization form. Although the court would normally order plaintiff to provide this material, a review of the document submitted by plaintiff shows that the case may not proceed.

DISCUSSION

1. Initial Screening

Pursuant to 28 U.S.C. § 1915A, the court is required to review a prisoner complaint in which redress is sought from a governmental entity or an officer or employee of a governmental entity in order to identify cognizable claims or dismiss the complaint or any portion thereof if the complaint

(1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or

(2) seeks monetary relief from a defendant who is immune from such relief.

28 U.S.C. § 1915A(b). See Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007)(stating that both sections 1915 and 1915A are available to evaluate prisoner pro se complaints). In evaluating the complaint, the court must accept all of the factual allegations as true and must draw all inferences in plaintiff's favor. See Fifield v. Eaton, 07-CV-6521, 2007 U.S. Dist. LEXIS 87056, *2 (W.D.N.Y. Nov. 21, 2007)(citing inter alia Larkin v. Savage, 318 F.3d 138, 139 (2d Cir. 2003)(per curiam)).

"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 a speculative level.'" ATSI Communications, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007)(quoting Bell Atl. Corp. v. Twombly, 127 S.Ct. 1955, 1965 (2007)). A complaint may not be dismissed 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." Fiflield, 2007 U.S. Dist. LEXIS 87056 at *2 (quoting McEachin v. McGinnis, 357 F.3d 197, 200 (2d Cir. 2004)).

With this standard in mind, the court will turn to a review of plaintiff's complaint in this case.

2. "Complaint"

Plaintiff addressed his submission to the "Hon. Chief Judge," however, the case has been assigned to me for review. Plaintiff labels his submission a "complaint" and mentions "cruel punishment," however, he names no defendants. Plaintiff also refers to this document as a "letter." He states that he is in the "wrong prison," but then states that "this letter is mostly about . . . sex." The rest of the "complaint" is an obscene description of why he is making this request for sex. The court will refrain from any discussion of plaintiff's ranting regarding this issue. He states that in addition to sex, he wishes to be transferred to a female prison. To the extent that plaintiff's "complaint " or "letter" can be interpreted as an attempt to file a civil rights action under 42 U.S.C. § 1983, he has stated no constitutional basis for such a claim.

The Eighth Amendment contains a provision prohibiting "cruel and unusual punishment."

U.S. CONST. amend. VII. The Eighth Amendment does not mandate comfortable prisons, but does guarantee that the conditions in prison will be at least humane. Gaston v. Coughlin, 249 F.3d 156, 164 (2d Cir. 2001). In order to establish an Eighth Amendment violation, plaintiff must show that the deprivation was objectively, sufficiently serious to deprive plaintiff of the minimal civilized measure of life's necessities, and a sufficiently culpable state of mind on the part of defendant. Id. That ...


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