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Mingo v. Fischer

United States District Court, N.D. New York

June 26, 2014

BRIAN FISCHER, et al., Defendants.

MICHAEL MINGO Orleans Correctional Facility Albion, New York, Plaintiff pro se.


MAE A. D'AGOSTINO, District Judge.


Plaintiff Michael Mingo commenced this action by filing a pro se civil rights complaint in the Western District of New York ("Western District"). Dkt. No. 1. Plaintiff also sought leave to proceed in forma pauperis. Dkt. No. 4 ("IFP Application"). Chief United States District Judge William M. Skretny of the Western District granted Plaintiff's IFP Application, and upon review of the complaint pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A, liberally construed the complaint to allege claims against Defendants Brian Fischer, Commissioner of the New York State Department of Corrections and Community Supervision ("DOCCS"); Andrea W. Evans, New York State Division of Parole; and James Ferro, with respect to violations of plaintiff's constitutional rights that occurred at Cayuga Correctional Facility ("Cayuga C.F.") and Auburn Correctional Facility ("Auburn C.F."). Dkt. No. 5. Chief Judge Skretny also construed the complaint to allege violations of Plaintiff's constitutional rights by unnamed staff employed at Orleans Correctional Facility ("Orleans C.F."). Id. By Decision and Order dated August 2, 2013, Judge Skretny found that because the Cayuga C.F. and Auburn C.F. are located in the Northern District of New York ("Northern District"), the claims arising at those facilities were "deemed to arise under the jurisdiction" of the Northern District Court and those claims were "ordered severed from [the Western District] action and transferred" to the Northern District pursuant to 28 U.S.C. § 1406(a).[1] Dkt. No. 5.

Presently before the Court is that part of Plaintiff's complaint relating to claims which arose in the Northern District.[2]


A. Standard of Review

Section 1915(e) directs that, when a plaintiff seeks to proceed in forma pauperis, "(2)... 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)(B).[3] Thus, even if a plaintiff meets the financial criteria to commence an action in forma pauperis, it is the court's responsibility to determine whether the plaintiff may properly maintain the complaint that he filed in this District before the court may permit the plaintiff to proceed with this action in forma pauperis. See id.

Similarly, under 28 U.S.C. § 1915A, a court must review any "complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity" and must "identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint... is frivolous, malicious, or fails to state a claim upon which relief may be granted; or... seeks monetary relief from a defendant who is immune from such relief." 28 U.S.C. § 1915A; see also Carr v. Dvorin, 171 F.3d 115, 116 (2d Cir. 1999) (per curiam) (holding that section 1915A applies to all actions brought by prisoners against government officials even when plaintiff paid the filing fee); Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007) (stating that both sections 1915 and 1915A are available to evaluate prisoner pro se complaints).

Additionally, when reviewing a complaint, the Court may also look to the Federal Rules of Civil Procedure. Rule 8 of the Federal Rules of Civil Procedure provides that a pleading which sets forth a claim for relief shall contain, inter alia, "a short and plain statement of the claim showing that the pleader is entitled to relief." See Fed.R.Civ.P. 8(a)(2). The purpose of Rule 8 "is to give fair notice of the claim being asserted so as to permit the adverse party the opportunity to file a responsive answer, prepare an adequate defense and determine whether the doctrine of res judicata is applicable." Hudson v. Artuz, No. 95 CIV. 4768, 1998 WL 832708, *1 (S.D.N.Y. Nov. 30, 1998) (quoting Powell v. Marine Midland Bank, 162 F.R.D. 15, 16 (N.D.N.Y. 1995) (McAvoy, C.J.) (other citations omitted)).

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). While 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. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (citing Twombly, 550 U.S. at 555). Rule 8 "demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Id.

B. Sufficiency of the Complaint

The relevant facts are set forth as alleged by Plaintiff in his complaint.[4] On November 30, 2010, while Plaintiff was incarcerated at Auburn C.F., he was attacked from behind by unknown assailants for leaving the bloods gang. Dkt. No. 1 at 2. Plaintiff suffered a cut on the side of his face. Id. The attackers "got away." Id. While Plaintiff was being escorted to the infirmary for treatment of his injuries, one of the attackers tried to attack Plaintiff again and Plaintiff "was forced to defend himself." Id. Plaintiff received two misbehavior reports, one for an altercation with the unidentified inmate and the other charging Plaintiff with assault on an officer. Id. At the subsequent disciplinary hearing, Plaintiff was found not guilty for the assault on an officer, but found guilty of the remaining charge "all without video" and upon "fabricated evidence." Id. On December 17, 2010, M. Mazolli (whom Plaintiff does not name as a Defendant) sentenced Plaintiff to serve time in the Special Housing Unit ("SHU"). Id. Plaintiff remained in SHU at Auburn C.F. from December 17, 2010, until December 21, 2010, when he was transferred to Cayuga C.F. Id.

Upon his transfer to Cayuga C.F., Plaintiff "experienced verbal abuse and mental abuse due to his religion and diet" which violated a New York State DOCCS Directive that requires staff to refrain "from disparaging in any manor [ sic ]... the doctrines, beliefs[, ] practices or teachings of any other religious faith...." Id. "After being called an asshole" by correctional officers Bennett and Hatsfeild (who are not named as defendants), Plaintiff "was set up receiving an additional 15 month[s]" in SHU. Id. Plaintiff was "convicted of charges that have no merit." Id. Plaintiff was then attacked by inmates "who were paid with food or contraband or stolen inmate property by staff." Id. Plaintiff expressed his "concerns for his life" to Superintendent Stallone, but was ignored. Id. On July 28, 2011, Plaintiff was transferred to Orleans C. F. Id.

As an initial matter, in light of Plaintiff's pro se status, and because he asserts allegations of wrongdoing against them, the Court will direct the Clerk to add the following as Defendants to this action: M. Mazzoli, Auburn Correctional Facility; Bennett, Correctional Officer, Cayuga Correctional Facility; Hatsfeild, Correctional Officer, Cayuga Correctional Facility; and Stallone, Superintendent, Cayuga Correctional Facility.

Read liberally, the Court construes the complaint to assert the following claims: (1) false misbehavior report claims; (2) a Fourteenth Amendment due process claim against Defendant Mazzoli; (3) verbal harassment claims; (4) a First Amendment religion claim; (5) a claim that staff at Cayuga C.F. violated a DOCCS Directive; (6) an Eighth Amendment conditions-of-confinement claim; and (7) a claim against Defendant Stallone.

Plaintiff seeks relief pursuant to 42 U.S.C. § 1983 ("Section 1983"), which establishes a cause of action for "the deprivation of any rights, privileges, or immunities secured by the Constitution and laws' of the United States." German v. Fed. Home Loan Mortg. Corp., 885 F.Supp. 537, 573 (S.D.N.Y. 1995) (quoting Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983)) (footnote omitted); see also Myers v. Wollowitz, No. 95-CV-0272 (TJM/RWS), 1995 WL 236245, at *2 (N.D.N.Y. Apr. 10, 1995) (stating that "§ 1983 is the vehicle by which individuals may seek redress for alleged violations of their constitutional rights." (citation omitted)). "Section 1983 itself creates no ...

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