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Wingate v. Gives

February 13, 2009


The opinion of the court was delivered by: Debra Freeman, United States Magistrate Judge


Following the Court's resolution of defendants' motions to dismiss the Amended Complaint, the following claims brought pursuant to 42 U.S.C. § 1983 by pro se plaintiff Blake Wingate ("Plaintiff") currently remain in this case: (1) claims for malicious prosecution against defendants Rachel Alvarez and Rebecca Asman, both New York City police officers, and (2) claims that the other remaining defendants, by failing to ensure that Plaintiff received a prescribed medical diet while he was incarcerated at various Riker's Island facilities during the period from 2004 to 2005, were deliberately indifferent to his medical needs. Since the date when those motions were decided, Plaintiff has been released from custody.

Now before the Court are a number of new motions. The first arises out of Plaintiff's representations to the Court that, subsequent to the time he pleaded his Amended Complaint, he was released, re-incarcerated, and then again denied his medical diet. As a result of Plaintiff's statements in this regard, the Court directed him to move for leave to supplement his pleading pursuant to Rule 15(d) of the Federal Rules of Civil Procedure. (See Order, dated Apr. 23, 2008 ("4/23/08 Order") (Dkt. 84), at 3 (directing Plaintiff to file a motion for leave to supplement his Amended Complaint "with respect to the claim that he currently is, and since his return to City custody has been, denied a proper diet).) When Plaintiff then filed an "Addendum" to his pleading, the Court construed this document as a motion to supplement. (See Dkt. 110 ("Addendum," dated June 5, 2008, docketed as "Motion To Supplement the [Amended] Complaint") ("Pl. Mot.").)

Although the Court anticipated that, by filing a motion to supplement, Plaintiff would seek to add allegations of further instances of being denied his medical diet while incarcerated, his motion goes well beyond the proposed addition of such allegations. In his submission, Plaintiff seeks to name 17 new defendants, including, inter alia, the Corporation Counsel of the City of New York, Plaintiff's former criminal defense attorney, an Assistant Attorney General of the State of New York, a Clerk of the New York State courts, the Commissioner of the New York State Department of Corrections, and a Muslim Imam. (See id.) As for the nature of his substantive allegations, although Plaintiff does seek to plead that, when he was re-incarcerated, he was again deprived of his medical diet, he also seeks to add a host of wholly new claims, ranging from a claim of ineffective assistance of counsel to claims regarding various prison conditions or procedures never previously mentioned in his earlier pleading. (Id.)

Also before the court are 15 motions that have been made by other inmates at the Riker's Island facilities at issue, who, like Plaintiff, allege that they have been deprived of their medical diets, and who seek to intervene as plaintiffs in this action. (Dkts. 94-99, 101-08, 119.)

For the reasons set forth herein, Plaintiff's motion to supplement is granted in part and denied in part. The motions to intervene are denied.


Plaintiff filed his Amended Complaint in this action on March 25, 2005. The background of the claims he pleaded at that time is summarized in this Court's Report and Recommendation, dated March 17, 2008 ("3/17/08 R&R") (Dkt. 80) (adopted by 4/23/08 Order (Dkt. 84)), familiarity with which is assumed.

Most of Plaintiff's new allegations appear to be based on the time period from April 4, 2007 (when Plaintiff was rearrested) to June 25, 2008 (when he filed his motion to supplement), a period Plaintiff calls the "second range" (see Pl. Mot., at 3, 11). These new allegations may be summarized as follows:

A. Plaintiff's April 2007 Arrest

On April 4, 2007, Plaintiff was arrested and charged with criminal possession of a controlled substance and resisting arrest. See People ex. rel. Blake Wingate v. New York State Div. of Parole Warden, et al., No. 340213-08, 2008 N.Y. Misc. LEXIS 4622, at *2 (Sup. Ct. Bronx County Aug. 4, 2008) (Clancy, J.S.C.). Plaintiff alleges that the police officer who executed the April 4, 2007 arrest was Sergeant Scott Fields, the same officer who, according to Plaintiff, participated in another false arrest of Plaintiff in 2003. (Pl. Mot., at 11.) Plaintiff further alleges that, in the course of the April 4th arrest, Sergeant Fields beat Plaintiff in the head, face, and body, and sprayed Plaintiff with mace. (Id.)

B. Alleged Failures To Provide Plaintiff With His Medical Diet

Upon his arrest in April 2007, Plaintiff was initially held in state custody. (Pl. Mot., at 11.) Plaintiff alleges that, while he was being held at New York state correctional facilities including Sing Sing, Attica, Fishkill and Auburn, he received his medical diet only sporadically, if at all. (Id., at 8-10.) Plaintiff also alleges that, during this period of incarceration, he filed multiple grievances with New York State Department of Correctional Services Commissioner Alan Croce, to no avail. (Id., at 10-11.)

On June 3, 2007, Plaintiff was returned to the custody of the New York City Department of Corrections ("NYCDOC"). (Id., at 12.) Over the following year, Plaintiff was held for various periods, which are difficult to determine precisely, at several NYCDOC facilities on Riker's Island, including the Anna M. Kross Center ("AMKC"), the George Motchan Detention Center ("GMDC"), the George R. Vierno Center ("GRVC") and the Robert N. Davoren Center ("RNDC"). (See generally id., at 11-13.)*fn1 Plaintiff alleges that the food service manager of each of these facilities had been notified of his medically prescribed diet, but that each manager generally failed to ensure that inmates with medically prescribed diets received the correct diets. (Id., at 18.) Plaintiff further alleges that his proper medical diet was served to him only sporadically while he was at AMKC (id. at 12), GMDC (id. at 12-13), RNDC (id. at 8) and GRVC (id. at 13). In connection with this issue, Plaintiff has also made specific factual allegations against certain individuals (in addition to the food service managers), who were employed at the relevant facilities. The allegations against these individuals, who include Dr. Trevor Napier, Dietician Ms. Purohit, and Nutritionist Jane Doe (see id., at 13-17, 20, 23-24), are discussed more thoroughly below (see infra at Discussion, Sections II(B)(1), (2) and (4)).

C. Alleged Failure To Process Plaintiff's Grievances

Plaintiff also alleges that, while incarcerated in 2007 and 2008, he filed over 25 complaints and grievances with numerous city and state authorities. (Pl. Mot., at 13.) One individual in particular, identified as Grievance Coordinator Moultre of GRVC, allegedly refused to process Plaintiff's grievances in retaliation for his lawsuit against grievance coordinators from other facilities. (Id., at 13, 21.) The grievances that Plaintiff filed with Ms. Moultre, which she allegedly failed to investigate adequately, relate to the following subjects:

1. out-of-date books and missing law journals in the inmate law library;

2. untrained law clerks staffing the law library;

3. environmental hazards in connection with the location of Riker's Island;

4. Plaintiff's inability to attend his wife's funeral;

5. the loss of one dollar from Plaintiff's prison bank account;

6. unfair limitations on the weight of legal mail permitted to be sent by inmates; and

7. the lack of a scale and postage stamps in the prison mail room. (Id., at 21.)

D. Alleged Failure To Enable Plaintiff To Attend His Wife's Funeral

On May 30, 2008, while Plaintiff was incarcerated, Plaintiff's wife passed away. (Pl. Mot., at 21-22.) Plaintiff alleges that the Imam named in his motion attempted to inform him by telephone of his wife's death, but that Corrections Officer Andujar refused to release Plaintiff from his prison cell to receive the phone call. (Id.) The Imam then proceeded to hold the funeral in Plaintiff's absence. (Id.)

E. Alleged Ineffective Assistance of Counsel and Malicious Prosecution

In connection with Plaintiff's state criminal case, Plaintiff has made specific factual allegations against Victor Knapp, Esq., Andrew Meir, Esq., and Regina Moran. (Pl. Mot., at 24-27.) Plaintiff alleges that Mr. Knapp, Plaintiff's attorney in that case, failed to file a speedy trial motion pursuant to Section 30.30 of the New York Criminal Procedure Law and also failed to obtain certain records to which Plaintiff believed he was entitled. (Pl. Mot., at 25-26.) When Mr. Knapp subsequently withdrew as Plaintiff's counsel, Plaintiff filed an application for the appointment of new counsel. (Id., at 25.) Plaintiff alleges that Ms. Moran, a clerk in Bronx Criminal Court, misfiled that application and, as a result, he was not provided with counsel. (Id.) Despite the fact the Plaintiff was then unrepresented, and without waiver by Plaintiff of his right to counsel, Mr. Meir (the Assistant Attorney General) allegedly proceeded to prosecute the case against him. (Id.)



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