The opinion of the court was delivered by: William M. Skretny Chief Judge United States District Court
Upon review of Plaintiff's*fn2 "Second Amended Complaint" (Docket No. 5), pursuant to 28 U.S.C. § § 1915(e)(2)(B) and 1915A, the Court dismissed with prejudice the claims against Defendants C.O. Hall and C.O. Bennett for failure to state a claim upon which relief can be granted, directed the Clerk of the Court to terminate C.O. Hall, C.O. Bennett and "Lt. Magnetron" as parties to this action and directed service of the Summons and Second Amended Complaint against Defendant C.O. McGRAIN. (Docket No. 5, Second Amended Complaint, at 10-11.)*fn3 The Court also requested the New York State Attorney General, Buffalo Regional Office, to attempt to ascertain the identity of defendant Lieutenant ? and that, upon identification of said Defendant, the Second Amended Complaint would be deemed amended to reflect the full name of Lieutenant ? and the Summons and Second Amended Complaint would be served upon said Defendant. (Id., at 10.) A Summons was issued for Defendant McGrain on January 9, 2012, but there is no information at this time regarding whether service has been completed as to McGrain.
Plaintiff has now filed another "Amended Complaint" ("Third Amended Complaint") (Docket No. 12), without permission or an accompanying motion for leave to file a Third Amended Complaint, and a Motion for Appointment of Counsel (Docket No. 11).*fn4 Because plaintiff is pro se and the Court must liberally construe his papers as raising the strongest possible arguments they suggest, Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (citation omitted), the Court construes the Third Amended Complaint as both a Motion for Leave to File a Third Amended and/or Supplemental Complaint and a Third Amended and/or Supplemental Complaint.
A. Third Amended Complaint
The Third Amended Complaint lists in the caption as defendants: C.O. McGrain, Retired Lieutenant Judd Sullivan, who the Court presumes is Lieutenant ?, C.O. Hall, the Department of Correctional Services, Brian Fischer, Commissioner, and C.O. Bennett (Docket No. 12, Third Amended Complaint, § 1B), and appears to raise in the "First Claim" the same First Amendment religious practices claim plaintiff raised in the Second Amended Complaint,*fn5 which is the only claim the Court allowed to proceed and which was directed to be served on C.O. McGrain and later Lieutenant ?, if and once he was identified. The First Claim in the Third Amended Complaint, which is set forth on the Court's Form for Filing Prisoner Civil Rights Actions under 42 U.S.C. § 1983, however, is primarily left blank except for the allegations that "[t]he constitutional basis for this claim under 42 U.S.C. § 1983 is: Freedom of Religion, 8th Amendment Right's -- Free from Discrimination; Harassment, Retaliation." It also alleges that [t]he relief [plaintiff] is seeking for this claim is . . . Freedom to Hairstyle my Religion Right's . . . ." (Docket No. 12, Third Amended Complaint, § 5A, First Claim, at 4.)
Accordingly, the Court finds that the First Claim raised in the Third Amended Complaint is the same claim as raised in the First Claim of the Second Amended Complaint and that the two defendants sued on said claim are C.O. McGrain and Retired Lieutenant Judd Sullivan. The Clerk of the Court will be directed to issue a Summons for Retired Lieutenant Judd Sullivan and to cause the United States Marshals Service to serve the Summons and Second and Third Amended Complaints (Docket Nos. 5 and 12), along with this Decision and Order and prior Decision and Orders filed on December 21, 2010 and January 5, 2012 (Docket Nos. 4 and 10), on Sullivan. Defendants C.O. McGrain and Retired Lieutenant Sullivan will be directed to respond to the First Claim of the Third Amended Complaint as is set forth in the First Claim of the Second Amended Complaint (Docket No. 5, ¶ 5A, First Claim, at 4-5), and the Second Amended Complaint (Firsts Claim) and Third Amended Complaint will be construed as the operative pleading in this matter. Because the Second Amended Complaint has already been ordered to be served on C.O. McGrain (Docket No. 10), the Court finds that service of the Summons and Second Amended Complaint, which includes the same religious practices claim raised in the First Claim of the Third Amended Complaint, once completed will be good and sufficient service of the Third Amended Complaint on McGrain.
The Third Amended Complaint also sets forth a "Second Claim" (Docket
No. 12, ¶ 5B, Second Claim, at 6), which alleges that plaintiff was
physically assaulted and harassed by C.O. "Art Fonzy"*fn6
on January 19, 2012, in retaliation for filing this lawsuit
or other claims plaintiff has made. The Court construes this claim as
alleging both a First Amendment retaliation claim and an Eighth
Amendment Cruel and Unusual Punishment (Excessive Force) claim, and
will direct the Clerk of the Court to amend the Caption of this action
to include defendant C.O. Art Fonzy, Elmira Correctional Facilily, as
a party and cause the United States Marshals Service to serve the
Summons and Third Amended Complaint upon Fonzy.
3. "Third" or "New" Claim
Attached to the Third Amended Complaint is a document entitled "New Amended Claim," and a Prison Authorization and Motion to Proceed In Forma Pauperis. This "new" claim is titled "Second Claim" and alleges that on January 28, 2012, C.O. J. Issacs asked plaintiff for his identification and claimed that he had advised plaintiff in the past about his hairstyle, which plaintiff claims was a lie, and then told plaintiff that he was a Native American and did not want a "'wannabe' trying to belittle [his] cultural heritage." Issacs then told plaintiff to lock-in, despite plaintiff's protestations that he had permission for his hairstyle, and filed a misbehavior report against plaintiff for this incident, which plaintiff claims was false and "retaliation, harassment and racism."*fn7 The Misbehavior Report, which is attached to the Third Amended Complaint, see n. 7, supra, notes that plaintiff was charged with violations of the following Inmate Rules: 118.30 (Untidy Cell or Person), 107.20 ...