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Gomez v. Graham

United States District Court, N.D. New York

October 3, 2014

SANTIAGO GOMEZ, Plaintiff,
v.
HAROLD G. GRAHAM, et al., Defendants.

SANTIAGO GOMEZ, Pro Se, Adirondack Correctional Facility Ray Brook, NY, for Plaintiff.

NONE for Defendants.

REPORT AND RECOMMENDATION

DAVID E. PEEBLES, Magistrate Judge.

Pro se plaintiff Santiago Gomez, a New York State prison inmate, has commenced this action pursuant to 42 U.S.C. § 1983 alleging that the defendants denied him of his civil rights. Plaintiff's second amended complaint ("SAC"), the currently operative pleading, has been referred to me for review pursuant to 28 U.S.C. § 1915A. For the reasons set forth below, I recommend plaintiff's SAC be accepted for filing, with the exception of his unlawful search, conspiracy, due process, and medical indifference claims.

. BACKGROUND

Plaintiff commenced this action on February 27, 2014, by the filing of a complaint, accompanied by a motion for a temporary restraining order and preliminary injunction.[1] Dkt. Nos. 1, 2. Because plaintiff failed to pay the filing fee or submit an application to proceed in the action in forma pauperis, the court administratively closed the action on March 4, 2014. Dkt. No. 3. Once plaintiff submitted the full filing fee, however, the case was reopened on March 11, 2013. Dkt. Nos. 4, 5. While plaintiff's complaint was awaiting initial review by the court pursuant to 28 U.S.C. 1915A, plaintiff filed a first amended complaint, which was thereafter superseded by the SAC, filed on July 2, 2014.[2] Dkt. Nos. 8, 14.

Plaintiff's SAC describes events and challenges practices encountered by him while confined by the New York State Department of Corrections and Community Supervision ("DOCCS") at the Auburn Correctional Facility ("Auburn"), Upstate Correctional Facility ("Upstate"), Adirondack Correctional Facility ("Adirondack"), and Downstate Correctional Facility ("Downstate"). See generally Dkt. No. 14. The causes of action asserted in plaintiff's SAC include (1) a claim against defendant Harold Graham, the superintendent at Auburn, alleging that the practice of subjecting female visitors to searches is unlawful; (2) a claim of retaliation against defendants D. Murray, J. Wright, Borden, Neale and Fletcher, and Sergeant Hahn, all of whom are DOCCS corrections employees stationed at Auburn, alleging that they took adverse action against him in retaliation for his having filed grievances; (3) a procedural due process claim against defendants Graham, Murray, Hahn, and Wright based upon an alleged conspiracy to file a false misbehavior report causing plaintiff to be placed in disciplinary confinement; (4) an excessive force cause of action against defendants Borden, Neale, Fletcher, and Hahn; (5) a conditions-of-confinement claim against defendants Murray, Wright, Hahn, and Graham; (6) a claim against defendant Hahn for failure to intervene and protect plaintiff from harm; and (7) a claim of deliberate medical indifference against defendant Wright based upon the filing of a false misbehavior report causing him to be denied prescription medication and medical treatment for his injuries following the alleged assault upon the plaintiff. Id. at 19-22. Plaintiff's complaint seeks awards of nominal, compensatory, and punitive damages, as well as declaratory and injunctive relief. Id. at 23.

I. DISCUSSION

A. Standard of Review

Because plaintiff was incarcerated at the time this action was commenced, and his complaint seeks redress from governmental employees, the court is required to screen the complaint and dismiss any claims deemed to be frivolous, malicious, or failing to state a claim upon which relief may be granted. 28 U.S.C. § 1915A; Carr v. Dvorn, 171 F.3d 115 (2d Cir. 1999) (per curiam); see also 28 U.S.C. § 1915(e) ("Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that... the action or appeal... is frivolous or malicious... [or] fails to state a claim upon which relief may be granted[.]"). In deciding whether a complaint states a colorable claim, a court must extend a certain measure of deference in favor of pro se litigants, Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990) (per curiam), and caution should be exercised in ordering sua sponte dismissal of a pro se complaint before the adverse party has been served and the parties have had an opportunity to address the sufficiency of plaintiff's allegations, Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983). However, the court also has an overarching obligation to determine that a claim is not legally frivolous before permitting a pro se plaintiff's complaint to proceed. Fitzgerald v. First East Seventh St. Tenants Corp., 221 F.3d 362, 363 (2d Cir. 2000). "Legal frivolity... occurs where the claim is based on an indisputably meritless legal theory [such as] when either the claim lacks an arguable basis in law, or a dispositive defense clearly exists on the face of the complaint.'" Aguilar v. United States, Nos. 99-MC-0304, 99-MC-0408, 1999 WL 1067841, at *2 (D. Conn. Nov. 8, 1999) (quoting Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998)); see also Neitzke v. Williams, 490 U.S. 319, 325 (1989) ("[D]ismissal is proper only if the legal theory... or factual contentions lack an arguable basis.").

When reviewing a complaint under section 1915A, the court looks to applicable requirements of the Federal Rules of Civil Procedure for guidance. Rule 8 of the Federal Rules of Civil Procedure provides that a pleading must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." 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." Powell v. Marine Midland Bank, 162 F.R.D. 15, 16 (N.D.N.Y. 1995) (McAvoy, J.) (quotation marks and italics 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). Although the court should construe the factual allegations in a 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." Iqbal, 556 U.S. at 678. "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)).

Plaintiff brings this action pursuant to 42 U.S.C. § 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 Mortgage Corp., 885 F.Supp. 537, 573 (S.D.N.Y. 1995) (citing Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983)). It "is not itself a source of substantive rights[, ]... but merely provides a method for vindicating federal rights elsewhere conferred[.]'" Patterson v. Cnty. of Oneida, 375 F.3d 206, 225 (2d Cir. 2004) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)). In order to state a claim pursuant to section 1983, a plaintiff must allege "(1) that some person has deprived him of a federal ...


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