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Karl Ahlers v. Maureen Bosco

December 20, 2012

KARL AHLERS, PLAINTIFF,
v.
MAUREEN BOSCO, ACTING DIRECTOR, CNYPC; JEFFREY NOWICKI, CHIEF, MENTAL HEALTH SERVICES; TERI MAXYMILLIAN, CHIEF, MENTAL HEALTH SERVICES, CNYPC; CHARMAINE BILL, TREATMENT TEAM LEADER; JAMES MORGAN, TREATMENT TEAM LEADER; LINDA SALERNO, TREATMENT TEAM LEADER; CYNTHIA COMSTOCK, NURSE ADMINISTRATOR; MIA TOWNSEND, PRIMARY THERAPIST; SCOTT BATES, CLERK 2, CNYPC; CINDY SAUNDERS, NURSE ADMINISTRATOR; SHELBY FERGUSON, SECURE CARE AND TREATMENT AIDE; AND SUZANNE GROWER, CNYPC, KEYBOARD SPECIALIST, DEFENDANTS.



The opinion of the court was delivered by: David N. Hurd United States District Judge

DECISION and ORDER

I. INTRODUCTION

Plaintiff Karl Ahlers commenced this action by filing a pro se civil rights complaint pursuant to 42 U.S.C. § 1983, together with an application to proceed in forma pauperis. Dkt. No. 1 ("Compl."), Dkt. No. 2 ("IFP Application"). By Decision and Order filed August 10, 2012, plaintiff's IFP application was granted, but following review of the complaint in accordance with 28 U.S.C. § 1915(e), it was found that the complaint was subject to dismissal for failure to state a claim upon which relief may be granted. Dkt. No. 4 ("August Order"). In light of his pro se status, plaintiff was afforded an opportunity to submit an amended complaint. Plaintiff has now done so. Dkt. No. 5 ("Am. Compl.").*fn1

II. DISCUSSION

A. The Complaint

In the complaint, plaintiff alleged claims relating to his confinement at the Central New York Psychiatric Center ("CNYPC"). See generally Compl. He alleged that: (1) his AT&T phone card had improper charges and he was required to pay those fees; (2) he was denied meaningful access to the courts; (3) an improper retaliatory search of his room was conducted on February 1, 2012; (4) his treatment plan was altered; and (5) he was prohibited from making phone calls. Id.

After reviewing the complaint it was determined that plaintiff's claims relating to the February 1, 2012 search and the AT&T phone card charges were duplicative of claims that he asserted in previous lawsuits. August Order at 4-6. Additionally, it was found that plaintiff's Fourteenth Amendment claim relating to the improper charges did not state an actionable section 1983 claim. Id. Therefore, these claims were dismissed without prejudice. Id. Plaintiff's claims regarding access to the courts and alteration of his treatment plan were also dismissed but it was found that plaintiff's claim that defendant Townsend refused to permit plaintiff to make phone calls required a response. Id. at 7-9. Plaintiff was granted an opportunity to amend his complaint. Id. at 10-11.

B. Review of the Amended Complaint

Plaintiff's amended complaint is in large part the same as his original complaint except that he has now attached an affirmation in support to the amended complaint. See Am. Compl.; Dkt. No. 5-1 ("Aff. in Supp."). Plaintiff claims that minutes were stolen from his calling card and that although he complained, no one corrected the problem.*fn2 He further alleges that he later received a number of cash receipts, apparently intended to reimburse him for those minutes, and evidently signed by defendant Bates. Am. Compl. at 7-8. However, plaintiff was subsequently told that he owed $180 dollars and was "coerced into permitting defendants to steal back the money in question." Id. at 8-9. Plaintiff asserts that he was unable to use the phone during much of this time and denied "numerous calls to his attorneys, family and friends." Id. at 9. More specifically, according to plaintiff, defendant Townsend "repeatedly without explaination [sic] nor due process, refused to permit Plaintiff to make and/or delayed permission to telephone Plaintiff's attorneys as well as refusing to permit Plaintiff . . . to make collect calls [] to friends, family, and/or his support group []." Id. at 11-12.

Plaintiff also complains that on April 8, 2011, his assigned sleeping quarters were searched without "probable cause."*fn3 Plaintiff alleges that this search was conducted improperly for a number of reasons, including that "CNYPC Policy 5.15" was not followed.

Aff. in Supp. at 3-4. According to plaintiff, during the April search, defendant Saunders "ordered Plaintiff to 'get rid of' legal papers" and "threatened to throw them in the garbage." Id. at 2. Plaintiff claims that he labeled these files "A" through "S" and placed them in a cardboard box to be sent to his long term storage area. Id. at 2. He asserts that he has since requested "File A" a number of times but it has not been located. Plaintiff alleges that the loss of "File A" "has been instrumental in having many items dismissed in the instant matter."*fn4 Id. at 3. For a complete statement of plaintiff's claims, reference is made to the entire amended complaint. Dkt. Nos. 5, 6.

Section 1915(e) of Title 28 of the United States Code directs that, when a plaintiff seeks to proceed in forma pauperis, "the court shall dismiss the case at any time if the court determines that -- . . . (B) the action . . . (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2). Therefore, it must be determined whether plaintiff may properly maintain his amended complaint before permitting him to proceed IFP. Although a court has the duty to show liberality towards pro se litigants, see Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990), and should exercise "extreme caution . . . in ordering sua sponte dismissal of a pro se complaint before the adverse party has been served and both parties (but particularly the plaintiff) have had an opportunity to respond," Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983) (internal citations omitted), a court also has the responsibility to determine that a claim is not frivolous before permitting a plaintiff to proceed with an action in forma pauperis. "Dismissal of frivolous actions pursuant to 28 U.S.C. § 1915(e) is appropriate to prevent abuses of the process of the court," Nelson v. Spitzer, No. 9:07-CV-1241, 2008 WL 268215, at *1 n.3 (N.D.N.Y. Jan. 29, 2008) (citation omitted), as well as "to discourage the filing of, and waste of judicial and private resources upon, baseless lawsuits that paying litigants generally do not initiate because of the costs of bringing suit and because of the threat of sanctions for bringing vexatious suits under Federal Rule of Civil Procedure 11." Neitzke v. Williams, 490 U.S. 319, 327 (1989). To determine whether an action is frivolous, a court must look to see whether the complaint "lacks an arguable basis either in law or in fact." Id. at 325.

When reviewing a complaint, the court may also look to the Federal Rules of Civil Procedure. Rule 8 provides that a pleading that sets forth a claim for relief shall contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). A court should not dismiss a complaint if the plaintiff has stated "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 the court should construe the factual allegations in the light most favorable to the plaintiff, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Id.

In light of plaintiff's pro se status, the amended complaint has been reviewed thoroughly and the allegations thereof have been read liberally in the light most favorable to him. Construed in this light, the amended complaint asserts claims relating to the following events that have occurred at CNYPC: (1) charges related to plaintiff's AT&T calling card; (2) searches of plaintiff's sleeping quarters; ...


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