The opinion of the court was delivered by: Paul A. Engelmayer, District Judge:
The Court has received a number of submissions from the pro se plaintiff, proceeding in forma pauperis in this matter, as well as corresponding responses from defendants' counsel. These documents include (1) a "draft" amended complaint, dated March 19, 2012, as well as defendants' response, dated April 2, 2012; (2) an actual amended complaint, dated April 4, 2012, which the Court construes as an application to amend; (3) two requests to appoint pro bono counsel, dated April 4, 2012 and April 16, 2012; and (4) a motion for summary judgment, occasioning a responsive letter from defendants' counsel, dated April 24, 2012.
For the following reasons, Carpenter's application to amend his complaint is granted but the Court dismisses, sua sponte, the majority of his claims pursuant to 28 U.S.C. § 1915(e)(2); Carpenter's applications to appoint counsel are denied without prejudice at this stage in the proceeding; and the motion for summary judgment is denied without prejudice as premature.
In 2010, Carpenter initiated this action pursuant to 42 U.S.C. § 1983, claiming that a defendant Correction Officer Berkeley used excessive force against him in violation of the Eighth and Fourteenth Amendments. Although defendant Berkeley was served with process in February 2011, no counsel for defendant appeared. Carpenter did not move for a default judgment. In early 2012, defense counsel made an appearance. By Order dated March 13, 2012, the Court sua sponte dismissed the New York City Department of Correction ("DOC") from this action because it is not a suable entity in § 1983 cases.
On March 20, 2012, defendant Berkeley answered Carpenter's complaint. By letter dated March 19, 2012, but which did not arrive until after defendant's answer was filed, Carpenter submitted a "draft" amended complaint, to which defendants' counsel responded by letter dated April 2, 2012. On April 4, 2012, the Court received an amended complaint without the "draft" label. The Court construes that submission as a motion to amend the complaint. That submission was received within 21 days of defendant's answer.
The putative amended complaint seeks to reinstate the DOC as a defendant, and add a John Doe inmate grievance officer, a John or Jane Doe Warden, and a Jane Doe hearing officer. Carpenter alleges that the DOC and Warden hired incompetent and improperly trained personnel. Am. Compl. 6. Carpenter further alleges that the John Doe inmate grievance officer did not allow him to submit a grievance on a matter which, Carpenter claims, is clearly "grievable." Id. Carpenter also states that the Jane Doe hearing officer did not view certain evidence at an inmate misbehavior hearing, despite Carpenter's having presented her with that evidence. Id.
Defendants' counsel argues that these new additions fail to state a claim on which relief may be granted, and therefore that the Court should, sua sponte, dismiss them pursuant to 28 U.S.C. § 1915(e)(2). The Court substantially agrees. However, as to the certain portions of the amended complaint, which the Court determines do state a claim for relief, the amendment will be permitted because it was sought within 21 days of the defendant's answer. See Fed. R. Civ. P. 12(a)(1)(B).
A.Carpenter's application to amend his complaint
1.Applicable Legal Standard
Under 28 U.S.C. § 1915 (e)(2)(B)(ii), a district court may dismiss any part of an in forma pauperis action where it is satisfied that the action "fails to state a claim on which relief may be granted." Although courts must construe a pro se litigant's pleadings liberally and interpret them to raise "the strongest arguments they suggest," Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474--75 (2d Cir. 2006), a complaint must plead enough facts to state a claim to relief that is "plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although "detailed factual allegations" are not required, "[a] pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.'" Id. (quoting Twombly, 550 U.S. at 555). A complaint is similarly insufficient "if it tenders 'naked assertion[s]' devoid of further factual enhancement.'" Id. (quoting Twombly, 550 U.S. at 557). Here, the vast majority of the claims Carpenter seeks to add fail to state a claim.
2.Carpenter's claim of negligent hiring and failure to train against the Warden
Carpenter claims that the John Doe/Jane Doe Warden is liable for "hiring of incompetent and not properly trained personnel." Am. Comp. 6. The "personal involvement of defendants in alleged constitutional deprivations is a prerequisite" to recovery under § 1983. Farid v. Ellen, 593 F.3d 233, ...