The opinion of the court was delivered by: Hon. Glenn T. Suddaby, United States District Judge
Currently before the Court in this pro se prisoner civil rights action is an Amended Complaint filed by Bradley Napierkowski ("Plaintiff"). (Dkt. No. 6.) Plaintiff submitted the Amended Complaint in compliance with this Court's Decision and Order of June 18, 2009 (the "June Order"). (Dkt. No. 5.) For the reasons set forth below, Plaintiff's Amended Complaint is accepted for filing, and the claims therein asserted against Defendants Brian Fischer and Harold Graham are sua sponte dismissed pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A, for failure to state a claim upon which relief might be granted.
By the June Order, the Court found that Plaintiff had failed to state a claim upon which relief could be granted pursuant to 42 U.S.C. § 1983 for two reasons: (1) he failed to allege facts plausibly suggesting that Defendants Brian Fischer and Harold Graham were personally involved in the violation of his constitutional rights; and (2) his allegations of negligence and his disagreement with the course of his medical care were not sufficient to state valid claims of deliberate indifference to a serious medical need under the Eighth Amendment. (Dkt. No. 5 at 8-9.) In light of Plaintiff's pro se status, he was given leave to replead his claims. (Id. at 9.) On July 16, 2009, he submitted an Amended Complaint in compliance with this Court's June Order. (Dkt. No. 6.)
II. ANALYSIS OF PLAINTIFF'S AMENDED COMPLAINT
A. Plaintiff's Claims Against Defendants Fischer and Graham
As an initial matter, Plaintiff has inserted Defendant Harold Graham's name into one sentence of his Amended Complaint. (Dkt. No. 6, ¶ 6.) Specifically, Plaintiff has alleged that "Defendant Harold Graham knows about Dr. Kooi and Nurse 'Jane Doe' intentional indifference and has failed to take corrective measures." (Id.) As a result, Plaintiff has raised the specter of the second and fifth prongs of the test to determine personal involvement of a supervisory official.*fn1 However, he has not alleged any facts plausibly suggesting that Defendant Graham knew about the alleged intentional indifference while it was occurring such that he was able to prevent it from continuing. (See generally Dkt. No. 6, ¶ 6 & "Attached Statement of Facts.") As a result, the second and fifth prongs of the personal-involvement test do not apply under the circumstances. See Dallio v. Hebert, 06-CV-0118, 2009 WL 2258964, at *4 (N.D.N.Y. July 28, 2009) (explaining that the second prong of the personal-involvement test is intended to refer, and is construed as referring, to ongoing constitutional violations that the supervisor can prevent from continuing) [citing cases]. Rather, the Court finds that Plaintiff has named Defendant Graham simply because he was the Superintendent of Auburn Correctional Facility during the time in question.
Moreover, Plaintiff still has not asserted any factual allegations regarding Defendant Brian Fischer. (Id.) Rather, Plaintiff has named Defendant Fischer only in the caption and listing of defendants. (Id.) Where a defendant is listed in the caption but the body of the complaint fails to indicate what the defendant did to the plaintiff, dismissal is appropriate. Gonzalez v. City of N.Y., 97-CV-2246, 1998 WL 382055 at *2 (S.D.N.Y. July 9, 1998); see also Crown v. Wagenstein, 96-CV-3895, 1998 WL 118169, at *1 (S.D.N.Y. March16, 1998) (mere inclusion of warden's name in complaint insufficient to allege personal involvement); accord, Taylor v. City of New York, 953 F. Supp. 95, 99 (S.D.N.Y. 1997).
Because Plaintiff has failed to allege factual allegations plausibly suggesting the personal involvement of Defendants Fischer and Graham in the constitutional violations alleged, his claims against Defendants Fischer and Graham are dismissed from this action.
B. Plaintiff's Claims Against Defendants Dr. Kooi and Nurse Jane Doe
In his Amended Complaint, Plaintiff also alleges that Defendants Dr. Kooi and Nurse Jane Doe were "purposely indifferent" to his serious medical needs in violation of his rights under the Eighth Amendment to the United States Constitution. (Dkt. No. 6 at 6 [emphasis in original].) More specifically, Plaintiff alleges that Defendants Kooi and Jane Doe ignored his "delicate health condition" and that "Dr. Kooi's indifference towards plaintiff's health may have contributed in allowing the tumor to grow in plaintiff's head." (Id.) These factual allegations are sufficient to avoid sua sponte dismissal of Plaintiff's claims against Defendant Kooi at this point in the action, although the Court expresses no opinion as to the merits of any motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) that Defendant Kooi may choose to file.
Finally, with regard to Plaintiff's claims against Defendant "Jane Doe," Plaintiff is advised that the United States Marshals Service cannot effect service on a "Jane Doe" defendant. In the event that Plaintiff wishes to pursue any claims against such an unidentified defendant, he must take diligent and expeditious steps to ascertain the identity of that defendant. Furthermore, upon learning the identity of the Jane Doe Defendant, Plaintiff must promptly and successfully move to amend his Amended Complaint in order to properly name her as a defendant. If Plaintiff fails to do these things so as to inhibit the timely service of process on her, this action will be dismissed as against her.
ORDERED that Plaintiff's Amended Complaint (Dkt. No. 6) is accepted for filing, but his claims therein against Defendants Brian Fischer and Harold ...