United States District Court, N.D. New York
Melvin Herring, Pro Se, Gouverneur Correctional Facility Gouverneur, NY, for the Plaintiff.
LAURA A. SPRAGUE, Assistant Attorney General, HON. ERIC T. SCHNEIDERMAN, New York State Attorney General, The Capitol, Albany, NY, for the Defendant.
MEMORANDUM-DECISION AND ORDER
GARY L. SHARPE, Chief District Judge.
Plaintiff pro se Melvin Herring commenced this action against defendant B. Tabor, correction officer, pursuant to 42 U.S.C. § 1983. (Am. Compl., Dkt. No. 30.) Herring's amended complaint alleges violations of the Eighth Amendment, for which he seeks declaratory and injunctive relief, as well as damages. ( Id. )
Tabor filed a pre-answer motion to dismiss, (Dkt. No. 31), to which Herring failed to respond. In a Report and Recommendation (R&R) dated April 29, 2014, Magistrate Judge David E. Peebles recommended that Tabor's motion be granted, and Herring's amended complaint be dismissed with prejudice. (Dkt. No. at 34 at 19-20.) Herring has filed objections to the R&R, which are now before the court. (Dkt. No. 35.) For the reasons that follow, the R&R is adopted in its entirety.
Herring is an inmate in the custody of the New York State Department of Correction and Community Supervision (DOCCS). ( See generally Am. Compl.) During the relevant time period, Herring was incarcerated in the Marcy Correctional Facility. ( Id. ¶¶ 2, 3.) While an inmate at Marcy, Herring worked on the lawns and grounds crew with other inmates. ( Id. ¶ 12.) On July 17, 2012, Herring was assigned to clean the grounds around a fenced in area of the Regional Mental Health Unit (RMHU). ( Id. )
After the crew had finished cleaning this area, Tabor ordered several crew members to then clean out the recreation pens at RMHU, which were littered with items such as food, paper, and clothing. ( Id. ¶¶ 16, 18.) At some time prior to this order, inmates on the crew had been advised that they should not get too close to the RMHU recreation pens because RMHU inmates had a tendency to throw urine and feces out of their cell windows. ( Id. ¶ 13.) Despite a fear of having urine or feces thrown at him and contracting a disease, Herring complied with Tabor's order. ( Id. ¶¶ 18, 21.) Herring was provided with plastic gloves to use while cleaning, and, with the gloves on, disposed of a shirt that had feces on it by placing the shirt in a bag. ( Id. ¶¶ 19-21.)
B. Procedural History
Herring commenced this action by filing a complaint in November 2012, naming Tabor, DOCCS, RMHU, and Correction Sergeant Smith as defendants. (Compl., Dkt. No. 1.) Herring also filed motions for leave to proceed in forma pauperis, (Dkt. Nos. 2, 7), and to appoint counsel, (Dkt. No. 4). Following initial review of that complaint by this court, Herring's motion to proceed in forma pauperis was granted, but his claims against Smith, DOCCS, and RMHU were dismissed in their entirety, leaving only an Eighth Amendment conditions of confinement claim against Tabor, and his motion to appoint counsel was denied without prejudice. (Dkt. No. 12 at 11-13.)
Tabor then moved to dismiss Herring's complaint for failure to state a claim. (Dkt. No. 18.) Thereafter, Herring filed two more motions to appoint counsel, (Dkt. Nos. 20, 25), both of which were denied without prejudice to renew once a decision was rendered on Tabor's motion to dismiss, (Dkt. Nos. 21, 26). Subsequently, the court granted Tabor's motion to dismiss, with leave to replead. (Dkt. No. 28.) In accordance with the court's Order, Herring filed a timely amended complaint, (Dkt. No. 30), which Tabor promptly moved to dismiss, (Dkt. No. 31). In his R&R, Judge ...