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Banks v. Annucci

United States District Court, N.D. New York

September 30, 2014

ANTHONY ANNUCCI, Acting Commissioner of DOCCS; D. ROCK, Superintendent, Upstate Correctional Facility; THOMAS BEILEIN, Chairman, State Commission of Correction; SGT. EDDY, Corrections Sergeant, Upstate Correctional Facility; SGT. GILMORE, Corrections Sergeant, Upstate Correctional Facility; E. MARSHALL, Correction Officer, Upstate Correctional Facility; M. SEVEY, Correction Officer, Upstate Correctional Facility; B. PAGE, Correction Officer, Upstate Correctional Facility; HIDE, Correction Officer, Upstate Correctional Facility; FAIRCHILD, Nurse, Upstate Correctional Facility; LORDI, Nurse, Upstate Correctional Facility; VIJAY KUMA MADALAYWAMA, Doctor, Upstate Correctional Facility; MARINELLI, Psychiatrist, Office of Mental Health, Upstate Correctional Facility; S. WOODWARD, Supervisor, Inmate Grievance Program, Upstate Correctional Facility; KAREN BELLAMY, Director, Inmate Grievance Program, DOCCS; CARL KOENIGSMANN, Chief Medical Officer, DOCCS; PICKERING, Offender Rehabilitation Coordinator, Upstate Correctional Facility; VERN FONDA, Inspector General, DOCCS; JOHN DOE 1, Unidentified Union of the Officers at Upstate Correctional Facility; JOHN DOE 2, Unidentified employer/agent for the medical staff at Upstate Correctional Facility; JOHN DOE 3, Unidentified Deputy Superintendent of Security, Upstate Correctional Facility; and JOHN DOE 4, Unidentified Corrections Officer with the rank of Lieutenant at Upstate Correctional Facility, Defendants

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EDWIN BANKS, Plaintiff, Pro se, Dannemora, NY.

MARY BANKS, Plaintiff, Pro se.

ANGEL DUBLIN, Plaintiff, Pro se.

TAWANDA STARKEY, Plaintiff, Pro se.

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David N. Hurd, United States District Judge.


The Clerk has sent for review a civil rights complaint filed by pro se plaintiffs Edwin Banks, Mary Banks, Angel Dublin, and Tawanda Stark pursuant to 42 U.S.C. § 1983 (" Section 1983" ). Dkt. No. 1 (" Compl." ). None of the plaintiffs paid the filing fee required for this action. Plaintiff Edwin Banks, who is currently incarcerated at Upstate Correctional Facility (" Upstate C.F." ), has submitted an application to proceed in forma pauperis, Dkt. No. 18 (" IFP Application" ), and motions requesting appointment of counsel (Dkt. Nos. 3, 16), preliminary injunctive relief (Dkt. Nos. 4, 35), and an investigation into plaintiff's conditions of confinement (Dkt. No. 38).

II. Plaintiffs Mary Banks, Angel Dublin, and Tawanda Stark

Mary Banks is identified as the mother of Edwin Banks; Angel Dublin is Edwin Banks' sister; and Tawanda Starkey is identified as a friend of Edwin Banks. Compl. at 2. Mary Banks, Angel Dublin, and Tawanda Starkey (1) have not paid the statutory filing fee of $400.00 required for this action, nor have any of them submitted an IFP Application on their own behalf; and (2) none of the three women have signed the complaint.[1]

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Accordingly, Mary Banks, Angel Dublin, and Tawanda Starkey will be dismissed as plaintiffs to this action and this action is considered brought only on behalf of plaintiff Edwin Banks.

III. Plaintiff Edwin Banks

Since all of the other plaintiffs will be dismissed, any further reference to " plaintiff" in this Decision and Order is a reference to plaintiff Edwin Banks only.

A. IFP Application

Upon review, it is found that plaintiff has submitted a completed, signed, and certified IFP Application (Dkt. No. 18) which demonstrates economic need. See 28 U.S.C. § 1915(a)(2). Accordingly, plaintiff Edwin Banks' IFP Application (Dkt. No. 18) will be granted.

B. Initial Screening

Having found that plaintiff meets the financial criteria for commencing this action in forma pauperis, and because plaintiff seeks relief from a governmental entity or an officer or employee of a governmental entity, the sufficiency of the allegations set forth in the complaint must be considered in light of 28 U.S.C. § § 1915(e) and 1915A. 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).[2] 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.

Likewise, 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

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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) (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).

Although the court has the duty to show liberality toward pro se litigants, see Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990) (per curiam), 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), the court also has a responsibility to determine whether the plaintiff may properly maintain the complaint that he filed in this District before permitting him to proceed.[3]

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 A. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citation omitted). 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. " 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). Thus, " where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged -- but it has not 'show[n]' -- 'that the pleader is entitled to relief.'" Id. at 679 (quoting Fed.R.Civ.P. 8(a)(2)).

C. Summary of the Complaint

Plaintiff asserts allegations of wrongdoing arising out of his confinement at Upstate C.F. See generally Compl. Plaintiff names twenty-two defendants and seeks relief against them in their individual and official capacities. Id. at 2-5. In addition to numerous New York State Department of Corrections and Community Supervision (" DOCCS" ) employees and officials, plaintiff names Thomas Beilein, the Chairman of the New York State Commission of Correction; John Doe 1, the Union of Officers at Upstate C.F.; and John Doe 2, the Employer/Agent for the Medical Staff at Upstate C.F. Id. The facts are set forth as alleged by plaintiff in his complaint.

Plaintiff was transferred to Upstate C.F. on April 26, 2013. Compl. at 6. Upon his arrival, he was harassed and threatened by defendant Eddy, who among other things, told correctional officers that plaintiff had assault on staff charges against him, thereby

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singling plaintiff out so that " he would be harassed by the officers." Id. Defendants Marshall and Sevey harassed plaintiff while passing out food trays. Id. at 23. On October 13, 2013, defendant Marshall threatened that he was " going to whip all the grievances" out of plaintiff. Id. at 25. When plaintiff refused to go to a medical appointment because of this threat, defendants Marshall and Sevey told plaintiff that he was " scared to come out of his cell and get his ass kicked like a man." Id. at 26. Plaintiff complained to defendant Eddy who said he did not care and wanted " to put a foot" in plaintiff's " ass also." Id.

On April 26, 2013, plaintiff told correctional officers that he practiced Judaism and needs to receive Kosher meals. Id. at 7. Correctional officers did not give plaintiff sealed Kosher meals from April 27, 2013, through April 29, 2013, so that they could tamper with plaintiff's unsealed meals. Id. As a result of this food tampering for two to three days, plaintiff developed diarrhea and vomiting for " around 3 days," and had stomach and abdominal pain for several days thereafter. Id. On April 29, 2013, defendant nurse Fairchild failed to provide medical treatment for plaintiff's stomach and abdominal pain, but at plaintiff's request, she contacted OMH because plaintiff was refusing to eat. Id. at 8. Within thirty minutes, plaintiff met with defendant Marinelli, an OMH psychiatrist, who told plaintiff that officers were hard on inmates with assault on staff charges, and that the only thing that he could do to help plaintiff was to order him Kosher trays, which he did; plaintiff began receiving Kosher trays at his next meal. Id.

Beginning on June 12, 2013, plaintiff " became aware" that his Kosher meals were being contaminated; plaintiff found dust or dirt on his bread and in his hot water and told defendant Sergeant Gilmore, who only smirked at plaintiff and walked away " refusing to do anything." Id. at 10. Plaintiff began having stomach and abdominal pains, and " became very disoriented as if he was given some type of mental health or poisonous drugs." Id. Plaintiff stopped eating for three days. Id. at 11. Defendants Marshall, Sevey, Hide, and Page started serving plaintiff meals where the sporks were covered with a thick powdery substance and the bread was yellow, " like it had been mixed with something." Id. at 15. Starting on September 5, 2013, many of the sealed items on plaintiff's Kosher trays arrived open. Id. at 15-16. Plaintiff wrote to defendant Superintendent Rock on September 9, 2013, about Marshall and Sevey tampering with plaintiff's food trays from September 5, 2013, through September 9, 2013, and also tried to speak with him, but defendant Rock ignored plaintiff's request to talk to him and kept walking. Id. at 16. On September 17, 2013, defendant Marshall gave plaintiff a lunch tray where the seal on the macaroni salad appeared to have been tampered with, and after plaintiff ate it, he felt like he had ingested a psychotropic drug or some type of poison, had to stop eating for seven days, and still feels the after-effects whenever he lays on his right side. Id. at 17. Plaintiff filed a grievance about food tampering and being denied Kosher meals, but John Doe 4 (an unidentified Lieutenant), failed to properly investigate the grievance. Id. at 8.

On July 1, 2013, plaintiff noticed a small lump on his left eyeball. Id. at 11. Beginning on August 7, 2013, plaintiff developed blurry vision in his left eye and the eye throbbed periodically throughout the day; plaintiff also found blood in his stool. Id. On August 12, 2013, plaintiff saw defendant nurse Fairchild, who would not let plaintiff see a doctor about his eye and ignored his complaints about abdominal pain and blood in his stool. Id. On August

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14, 2013, plaintiff saw defendant Lordi, who pretended not to notice plaintiff's eye condition, and " prevented him from being examined by a doctor." Id. at 12. Defendant Lordi gave plaintiff a test kit so that he could provide a fecal sample. Id. Defendants Fairchild and Lordi prevented plaintiff from receiving immediate medical care, and did so to cover up the contamination of his food by correctional officers. Id. at 12.

On September 23, 2013, plaintiff saw defendant Dr. Madalaywama about his stomach and abdominal pain, and eye condition, " but was not really provided any medical care." Id. at 20. Defendant Madalaywama said that he saw a small dot on plaintiff's left eye and would schedule plaintiff to see an eye doctor. Id. at 21. Defendant Madalaywama conducted a " half-hearted stomach and abdominal hand exam and then kicked [plaintiff] out" after giving him over the counter medication for acid reflux. Id. at 21. On September 25, 2013 plaintiff received a 7-day supply of Omeprazole[4] which was prescribed to him by defendant Dr. Mandalaywama. Id. at 23. Since defendant Mandalaywama never told plaintiff that he was prescribing this medicine, plaintiff never requested refills, " though there were around 52 refills total." Id. at 23. On October 3, 2013, after plaintiff was threatened by defendant Marshall, plaintiff refused to go to his eye doctor call-out at the hospital, because other inmates had told him that inmates get beat up at the hospital because there are no cameras. Id. at 25-26.

In an attempt to cover-up the contamination of plaintiff's food by correctional officers, the mental health staff authorized plaintiff to be involuntarily administered psychotropic drugs though his food. Id. at 29. Plaintiff wrote to defendant Marinelli, asking if OMH was giving plaintiff drugs, but he did not respond. Id. at 29, 36. Plaintiff believes that he is receiving the drugs due to a court order issued to the Superintendent of Southport Correctional Facility allowing plaintiff to be force fed.[5] Id. at 29-30. On October 23, 2013, plaintiff spoke to defendant Rock about his problems with forced drugs and defendant Rock told him " you always have problems" and walked away saying " tell it to someone who cares." Id. at 29.

Defendants Rock and Annucci did not provide a safe ventilation system at Upstate C.F. and, as a result, correctional officers were able to blow " toxic fumes through the ventilation system" into plaintiff's cell. Id. at 28, 50-51.

Plaintiff made multiple New York State Freedom of Information Law (" FOIL" ) requests to defendant Pickering, but the requests were denied for various reasons including that the items requested were unavailable, or that plaintiff needed to pay for the requested items. Id. at 9, 13, 18, 20.

Plaintiff sent letters to family and friends on August 4 and 13, 2013, but they never received them. Id. at 14. Plaintiff

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has not received any mail from his family even though on September 11, 2013, another inmate told plaintiff that when defendant Page was delivering mail, the inmate noticed mail for plaintiff on the cart. Id. at 14-15. Officers have a policy and practice of interfering with inmate mail to prevent them from getting outside assistance. Id. In September, 2013, Tawanda Starkey, a family friend, told plaintiff she sent him two letters which he never received. Id. at 16. Plaintiff sent a letter to his sister, Angel Dublin, on September 18, 2013, but she never received it. Id. at 20.

Defendant Marshall and C.O. Van Ornum[6] searched plaintiff's cell on October 29, 2013, and illegally confiscated legal material " in the form of a rough draft of this complaint" and a pen. Id. at 32. This was done to hinder plaintiff's right to seek redress for violations of his rights. Id.

Plaintiff filed multiple grievances complaining about, among other things, food tampering and lack of adequate medical care, but his grievances were intentionally mishandled or mischaracterized by defendants Annucci, Bellamy, Rock, and Woodward. Id. at 12, 18, 19, 20, 21, 23-26. Defendants Annucci and Rock intentionally mishandle prisoner complaints " to insulate themselves from any liabilities." Id. at 20.

The forced administration of psychotropic drugs creates " the future potential" for plaintiff to become very volatile around his family once he is released on parole. Id. at 31. Plaintiff wants to submit a health care proxy, and was given the form to do so on September 23, 2013, and told that it must be filled out during a doctor's visit, but he has been prevented from filling it out because he cannot get two witnesses. Id. at 30-31. As a result, plaintiff cannot give his health care proxy to his sister, Angel Dublin or his friend, Tawanda Starkey. Id. at 32.

Plaintiff wrote to defendant Koenigsmann on August 8, 2013, complaining about the nurses denying him medical attention, and sent a copy of the letter to defendant Superintendent Rock. Id. at 13. Grinsbergs (not a defendant) responded to plaintiff on behalf of defendant Koenigsmann, and refused to acknowledge the nurses' misconduct. Id. Nurse administrator Smith (not a defendant) also responded, stating that plaintiff would be seen in the future by someone. Id. at 14. Defendant Rock never responded. Id.

Defendants Annucci; Rock; Koenigsmann; and John Doe 3, Deputy Superintendent of Security are responsible as supervisors for the alleged wrongdoing of their staff. See generally Compl.

Plaintiff complained to defendant Beilein, the Chairman of the New York State Commission of Correction in September, 2013, about misconduct of DOCCS staff, but defendant Beilein did not respond, and intentionally mishandles prisoner complaints " to insulate [himself] from any liabilities" and intentionally neglects to oversee DOCCS and ignores and fails to investigate wrongdoing by DOCCS staff. Compl. at 19-20, 45-46. Defendant Fonda, the DOCCS Inspector General, ignores inmate complaints and fails to properly investigate them or remedy wrongs. Id. at 46. John Doe 1, the Union of Officers at Upstate C.F., " has promoted" and helped officers cover-up their misconduct and " has put in place and help[ed] establish a reign of terror campaign" to prevent other officers from speaking up about corruption. I d. at 33. John Doe 2, the

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Employer/Agent for the medical staff at Upstate C.F., is responsible for hiring and training medical staff, and hires unqualified staff. Id. at 33.

Plaintiff seeks monetary damages, as well as declaratory and injunctive relief. Id. at 51-54. For a more complete statement of plaintiff's claims, see the entire complaint.

Construed liberally, plaintiff alleges the following claims: (1) defendants Eddy, Marshall, and Sevey verbally harassed and threatened plaintiff; (2) defendants Marshall, Sevey, Hide, and Page, tampered with plaintiff's food in violation of the Eighth Amendment, and defendants Rock and Gilmore failed to correct the misconduct; (3) defendants Marshall, Sevey, Hide, and Page contaminated plaintiff's Kosher meals in violation of the First Amendment free exercise clause; (4) defendants Fairchild, Marinelli, Lordi, and Madalaywama denied plaintiff adequate medical or mental health care in deliberate indifference to his serious medical or mental health needs in violation of the Eighth Amendment; (5) defendant Pickering denied plaintiff's FOIL requests; (6) defendant Page interfered with plaintiff's incoming and outgoing mail in violation of the First Amendment; (7) defendant Marshall and C.O. Van Ornum illegally confiscated plaintiff's property in violation of Fourteenth Amendment due process; (8) defendant Marshall and C.O. Van Ornum interfered with plaintiff's access to the courts in violation of the First Amendment; (9) defendants Annucci, Rock, Bellamy, and Woodward improperly handled and investigated plaintiff's grievances; (10) defendants Rock and Annucci failed to provide safe ventilation at Upstate C.F. in violation of the Eighth Amendment; (11) plaintiff's family relations have been interfered with; (12) defendant Beilein failed to supervise DOCCS staff or to correct the misconduct of DOCCS officials and employees; (13) defendants Annucci; Bellamy; Rock; Woodward; Fonda; Eddy; and John Doe 4, an unidentified DOCCS Lieutenant, failed to properly investigate wrongdoing of DOCCS staff; (14) John Doe 1, the Union of Officers at Upstate C.F., has established and allows to continue among its members " a policy and custom of illegal behavior" ; (15) John Doe 2, the Employer/Agent for the medical staff at Upstate C.F. failed to properly hire and train medical staff at Upstate C.F.; and (16) defendants Annucci; Rock; Koenigsmann; and John Doe 3, Deputy Superintendent of Security are liable as supervisors for the alleged wrongdoing of their staff.

D. Analysis

Plaintiff brings this action pursuant to 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) (citing Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508, 110 S.Ct. 2510, 110 L.Ed.2d 455 (1990) (quoting 42 U.S.C. § 1983)) (footnote omitted). In order to maintain a Section 1983 action, a plaintiff must allege two essential elements. First, " the conduct complained of must have been committed by a person acting under color of state law." Pitchell v. Callan, 13 F.3d 545, 547 (2d Cir. 1994). Second, " the conduct complained of must have deprived a person of rights, privileges or immunities secured by the Constitution or laws of the United States." Id.

1. Official Capacity Claims

The Eleventh Amendment has long been construed as barring a citizen from bringing a suit against his or her own state in federal court, under the fundamental

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principle of " sovereign immunity." U.S. Const. amend. XI (" The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." ); Hans v. Louisiana, 134 U.S. 1, 10-21, 10 S.Ct. 504, 33 L.Ed. 842 (1890); Idaho v. Coeur d'Idaho, 521 U.S. 261, 267, 117 S.Ct. 2028, 138 L.Ed.2d 438 (1997); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984). Eleventh Amendment immunity is lost only if Congress unequivocally abrogates states' immunity or a state expressly consents to suit. Gollomp v. Spitzer, 568 F.3d 355, 365-66 (2d Cir. 2009). It is well-settled that Congress did not abrogate states' immunity through 42 U.S.C. § 1983, see Quern v. Jordan, 440 U.S. 332, 343-45, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979), and that New York State has not waived its immunity from suit on the claims asserted in plaintiff's complaint. See generally Trotman v. Palisades Interstate Park Comm'n, 557 F.2d 35, 38-40 (2d Cir. 1977); Dawkins v. State of New York, No. ...

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