United States District Court, N.D. New York
PEREZ OLIVO Carlos Perezolivo Plaintiff, pro se
DECISION AND ORDER
K. SANNES United States District Judge.
Clerk has sent to the Court a civil rights complaint filed by
pro se plaintiff Carlos Perez Olivo, also known as Carlos
Perezolivo, pursuant to 42 U.S.C. § 1983 ("Section
1983"), together with an in forma pauperis
application. Dkt. No. 1 ("Compl."); Dkt. No.
2 ("IFP Application"). Plaintiff is currently
incarcerated at Auburn Correctional Facility ("Auburn
C.F.") and has not paid the filing fee for this action.
has submitted a completed and signed IFP Application (Dkt.
No. 2) which demonstrates economic need. See 28
U.S.C. § 1915(a)(2). Plaintiff has also filed the inmate
authorization form required in this District. Dkt. No. 6.
Accordingly, plaintiff's IFP Application is granted.
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). 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.
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) (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
reviewing a pro se complaint, the court has a 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). Therefore, 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) (citing Twombly, 550 U.S.
at 556). 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). "[W]here 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)). Rule 8 "demands more
than an unadorned, the-defendant-unlawfully-harmed-me
accusation." Iqbal, 556 U.S. at 678 (citing
Twombly, 550 U.S. At 555). Thus, a pleading that
only "tenders naked assertions devoid of further factual
enhancement" will not suffice. Id. (internal
quotation marks and alterations omitted).
Summary of the Complaint
complaint asserts alleged wrongdoing arising at Auburn C.F.
while plaintiff was in the custody of the New York State
Department of Corrections and Community Supervision
("DOCCS"). See generally Compl. Plaintiff
names the New York State Department of Corrections and
Community Supervision; Anthony Annucci, Commissioner of
DOCCS; and H. Graham, the Superintendent at Auburn C.F., as
defendants. Compl. at 1-2. Plaintiff sues all of the
defendants in their individual and official capacities. The
following facts are set forth as alleged by plaintiff in his
was placed in the protective custody unit at Auburn C.F. near
an inmate with known mental health issues and an infectious
disease ("Inmate 1"). Compl. at 5. On April 18,
2016, Inmate 1 threw an "unknown brown liquid" in
plaintiff's face and eyes, "causing [plaintiff]
permanent vision impairment [and] physical pain."
Id. Inmate 1 had thrown feces at another inmate two
months earlier and "days before assaulting plaintiff
[Inmate 1] was moved from Unit E-4 to E-7 for the same
behavior." Id. Later that same day, another
inmate "with a known history of violent tendencies"
("Inmate 2"), who was also housed in the protective
custody unit with plaintiff, threw "an unknown milky
substance on plaintiff's chest, causing him physical
discomfort and pain." Id. at 5-6. Inmate 2
"had just days before been released from keeplock for
aggressive behavior." Id. at 6. Defendants
"hav[e] control over plaintiff [and] failed to exercise
and act like reasonable and careful people" because
inmates with known violent tendencies were allowed to be
placed in the protective custody unit. Id. at 5-6.
"repeated oral and written" requests, defendants
"were indifferent to and failed to provide plaintiff
with medical care for injuries" suffered as a result of
the assaults by Inmate 1 and Inmate 2. Compl. at 7. Plaintiff
"was finally seen by an ophthalmologist" in
September, 2016, but was never tested to see if he contracted
an infectious disease. Id. As relief, plaintiff
seeks injunctive relief against defendant New York State
Department of Corrections and Community Supervision, namely
that it "be sanctioned and prevented from housing
mentally ill inmates with a history of violent behaviour
[sic] in protective custody." Id. at
6. Plaintiff also seeks an award of monetary damages against
all defendants. Id. For a complete statement of
plaintiff's claims, refer to the complaint.
liberally, the complaint asserts Eighth Amendment
failure-to-protect and medical indifference claims against
all of the defendants.
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. 42 U.S.C.
§ 1983. "Section 1983 itself creates no substantive
rights, [but] . . . only a procedure for redress for the
deprivation of rights established elsewhere." Sykes
v. James, 13 F.3d 515, 519 (2d Cir. 1993) (citation
Eleventh Amendment Immunity
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 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
(1890); Idaho v. Coeur d'Alene Tribeof
Idaho,521 U.S. 261, 267 (1997); Pennhurst State
Sch. & Hosp. v. Halderman,465 U.S. 89, 100 (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 (1979), and that New York State has not waived
its immunity from ...