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Byng v. Delta Recovery Services, LLC

United States District Court, Second Circuit

July 29, 2013

KEVIN V. BYNG, Plaintiff,
DELTA RECOVERY SERVICES, LLC and ROBERT WOOD, owner of Delta House, Defendants.

KEVIN V. BYNG, 11-B-2816, Attica Correctional Facility, Attica, New York, Plaintiff pro se.


MAE A. D'AGOSTINO, District Judge.


Plaintiff brought this suit alleging that Defendants violated his constitutional right to be free from cruel and unusual punishment, his constitutional right to Equal Protection, and his rights under the Americans with Disabilities Act. See Dkt. No. 1 at ¶¶ 35-37. In a July 1, 2013 Order and Report-Recommendation, Magistrate Judge Baxter recommended that the Court dismiss the complaint in its entirety, with prejudice, pursuant to 28 U.S.C. § 1915(e)(2)(B)(i)-(iii).

Currently before the Court are Plaintiff's motion to amend the complaint and his objections to Magistrate Judge Baxter's Order and Report-Recommendation. See Dkt. No. 7.


A. The complaint

Plaintiff alleges that he is "physically disabled, " has mental health problems, and a history of alcohol and cocaine abuse. See Dkt. No. 1 at ¶¶ 4-5. Plaintiff alleges that, on January 4, 2011, while he was on parole, he successfully completed a six-month, intensive, residential, inpatient, substance abuse program at Insight House in Utica, New York. See id. at ¶ 5. Plaintiff states that, as of January 4, 2011, he was "doing well, " and he "agreed" to continue his treatment at Defendant Delta Recovery Services, LLC ("Delta House"). He entered Delta House that same day. See id. at ¶ 6.

Plaintiff alleges that Defendant Delta House is a New York State Office of Alcoholism and Substance Abuse Services ("OASAS") "licensed treatment facility, " having obtained its license in 2005. See id. at ¶ 7. Defendant Delta House was certified as a Congregate Care Level 2 ("CCL2") Residential Treatment Program facility, which means that it is required to provide residents with daily housing, meals, counseling, and medical/mental health services "like Insight House." See id. The complaint contains several paragraphs discussing how Delta House allegedly overcharges for rent, based upon its license and upon the services it renders to residents. See id. at ¶¶ 8-14.

The crux of the complaint is that on January 13, 2011, Defendant Wood (the alleged owner of Delta House) came into Plaintiff's room to tell Plaintiff that he would give him a lamp. See id. at ¶ 15. Plaintiff states that he then "went and took a shower" and came back into the room, naked. See id. Defendant Wood apparently came back into Plaintiff's room with the lamp, and when he saw that Plaintiff was naked, closed the door, unzipped his pants, pulled out his penis, and told Plaintiff to "suck it.'" See id. at ¶ 16. When Plaintiff refused, Defendant Wood threatened to call "parole" and report that Plaintiff had violated his parole by drinking alcohol so that he would be sent back to prison. See id. at ¶ 16. Due to this threat and the fear of returning to prison, Plaintiff "reluctantly... masturbated him" with his right hand. See id. at ¶ 17. Defendant Wood allegedly told Plaintiff that if he told anyone about the incident, Defendant Wood would call the police and parole, claim that Plaintiff was drinking, and that he "assaulted [Wood]." Defendant Wood told Plaintiff that he would go back to prison where he belonged. See id.

Plaintiff claims that he was so "ashamed, embarrassed, and worried, " that he got dressed and immediately left Delta House, forgetting his keys. See Dkt. No. 1 at ¶ 18. Plaintiff states that he went to the bank, withdrew money, and unfortunately relapsed, drinking alcohol and using cocaine. See id. Plaintiff claims that because he forgot his keys to Delta House, he could not get back in, and no one would answer the door, so that he was "homeless, freezing in the cold, [and] without his mental health medications." See id. at ¶ 19. Plaintiff states that he spent most of his money and kept using cocaine and drinking for the next few days. See id.

On January 17, 2011 plaintiff walked over to Delta House, and Defendant Wood's assistant let him in, but told plaintiff that he was "kicked out per Mr. Wood." See id. at ¶ 20. Plaintiff states that the assistant then called Mr. Wood on the telephone. See id. Plaintiff spoke to Defendant Wood, asked him for the balance of Plaintiff's unused rent, and asked Defendant Wood where Plaintiff "was supposed to go." See id. Plaintiff claims that Defendant Wood told him that he could not have his money, that if he caused any trouble Defendant Wood would call the police, and he did not care where Plaintiff went. See id. Plaintiff states that Delta House never called "parole" to tell them that Plaintiff had been evicted, nor was Plaintiff told that "there was a Utica Rescue Mission Emergency Shelter... as required." See id.

Plaintiff states that he took his clothes, but claims that Defendant Wood took his keys, including the key to his post office box, and his mental health medications. See id. at ¶ 21. Thereafter, Plaintiff claims that he was homeless, afraid, hungry, anxiety ridden, confused, and depressed. He spent the last of his money, continuing to drink and use cocaine for days. Plaintiff had no medication and "virtually no sleep." As a result, he "regrettably committed a stupid, non-violent substance abuse larcenious [sic] offense on January 20, 2011 to get more money for cocaine." See id.

Plaintiff states that he was arrested on the same day by the Utica Police Department and "parole." See id. at ¶ 22. According to Plaintiff, he was "violated" for "allegedly leaving Delta House." He was sent to Groveland Correctional Facility for ninety (90) days. Plaintiff claims that he could not "get out of his head" everything that Defendant Wood had done to him, "especially on January 13, 2011." See id. at ¶ 23. Plaintiff claims that when he "came home" after the ninety day period of incarceration, he "eventually relapsed again and remorsefully committed another substance abuse related offense." See id.

Plaintiff claims that his lawyer was "lazy, ineffective, and did not get [him] a Drug Court plea." See id. at ¶ 24. Plaintiff apparently pled guilty to the January 20, 2011 "non-violent substance abuse related offense" that he "committed because of Mr. Wood[.]" See id. Plaintiff then engages in some calculations regarding the amount of time he had left on his original sentence and the consecutive time he received on the new sentence and claims that, because the resulting time he had left to serve was greater than seven years, he was "unfortunately sent to the infamous Attica Correctional Facility, " a maximum security facility, instead of being sent to a medium security facility like Groveland. See id. at ¶¶ 24-26.

Plaintiff describes his incarceration in Attica, stating that he has had to live in a dirty, germ-ridden cell, with a "vicious murderer and serial killer." See id. at ¶¶ 27-28. He also alleges that he has been regularly harassed, threatened, and was ultimately assaulted by "a pack" of corrections officers. See id. at ¶¶ 28-29. Plaintiff claims that this is "all a direct result of Delta House's overall egregious conduct." See id. at ¶¶ 26-29.

The complaint contains three causes of action: (1) Defendants' conduct violated Plaintiff's constitutional right to be free from cruel and unusual punishment by violating New York State Mental Hygiene Law §§ 19.07(e), 32.07(a) and OASAS Operating Regulations §§ 819.2(a)(3), (b)(1), (b)(5), (b)(8); 853.20(a), (c)(2), (c)(5); 853.28(a)(1), (a)(1)-(3), (a)(6)-(8), (a)(14), (a)(16); (2) Defendants violated Plaintiff's constitutional right to Equal Protection; (3) Defendants' conduct violated ...

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