United States District Court, N.D. New York
BROWN Plaintiff, pro se
DECISION and ORDER
J. McAVOY Senior United States District Judge
Carl Brown commenced this action by filing a pro se civil
rights complaint pursuant to 42 U.S.C. § 1983
("Section 1983"), together with an application to
proceed in forma pauperis. Dkt. No. 1 ("Compl."),
Dkt. No. 5 ("IFP Application"). By Decision and
Order filed August 30, 2016 (the "August Order"),
this Court granted plaintiff's IFP application, but found
that plaintiff's complaint failed to allege sufficient
facts to state a plausible claim against any of the
defendants. See Dkt. No. 11, generally.
Accordingly, plaintiff's complaint was dismissed pursuant
to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. §
1915A(b). See Id. at 8-9. In light of his pro se
status, plaintiff was afforded an opportunity to submit an
amended complaint. See id.
has submitted an amended complaint in response to the August
Order. Dkt. No. 22 ("Am. Compl."). For the reasons
set forth below, this action is dismissed in its entirety
pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C.
§ 1915A(b) because plaintif f has failed to state a
claim upon which relief can be granted.
legal standard governing the dismissal of a pleading for
failure to state a claim pursuant to 28 U.S.C. §
1915(e)(2)(B) and 28 U.S.C. § 1915A(b) was discussed at
length in the August Order and will not be restated here.
See Dkt. No. 11 at 2-4. Taking into account
plaintiff's pro se status, the Court construes the
allegations in plaintiff's amended complaint with the
utmost leniency. See, e.g., Haines v.
Kerner, 404 U.S. 519, 521 (1972) (holding that a pro se
litigant's complaint is to be held "to less
stringent standards than formal pleadings drafted by
lawyers."). Despite this liberal reading, for the
reasons discussed below, a review of plaintiff's amended
complaint reveals that it does not cure the deficiencies
identified in the original complaint, and fails to state a
claim upon which relief may be granted under Section 1983.
REVIEW OF AMENDED COMPLAINT 
facts set forth in the amended complaint are largely
identical in content to the allegations set forth in the
original complaint. Plaintiff alleges that defendant Ms.
Stoddard ("Stoddard") sexually harassed him in
violation of his Eighth Amendment rights and that defendants
Superintendent Graham ("Graham"), Sgt. Murray
("Murray"), Lt. Fasce ("Fasce"),
Inspector General D. Miller ("Miller") and Captain
B. Chutley ("Chutley") failed to properly
investigate the incident. See Am. Compl.,
amended complaint does not contain any claim against
Commissioner Anthony Annucci ("Annucci") and
Annucci is not named in the list of defendants. Plaintiff named
"John Doe" as an additional defendant and alleges a
new retaliation claim against Miller.For a more complete statement
of plaintiff's claims, reference is made to the amended
August Order, the Court discussed the law as it pertains to
plaintiff's Eighth Amendment sexual harassment claim.
See Dkt. No. 11 at 7-8. The Court held:
Here, plaintiff complains of one instance of verbal sexual
harassment by Stoddard. See Compl. at 5. Plaintiff
does not contend that he was touched or physically harmed in
any manner from this conduct. Consequently, plaintiff's
Eighth Amendment claim for verbal sexual harassment is
dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)and 28
U.S.C. § 1915A(b) for failure to state a claim. See
Phelan v. Durniak, No. 9:10-CV-666 (FJS/RFT), 2014 WL
4759937, at *6 (N.D.N.Y. Sept. 24, 2014) ...