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Olivo v. State Department of Corrections and Community Supervision

United States District Court, N.D. New York

June 20, 2017

CARLOS PEREZ OLIVO, a/k/a Carlos Perezolivo, Plaintiff,

          CARLOS PEREZ OLIVO Carlos Perezolivo Plaintiff, pro se


          BRENDA K. SANNES United States District Judge.


         The 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.[1] 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.


         A. IFP Application

         Plaintiff 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.

         B. Initial Screening

         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 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).

         In 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).

         C. Summary of the Complaint

         The 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 complaint.

         Plaintiff 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.

         Despite "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.

         Construed liberally, the complaint asserts Eighth Amendment failure-to-protect and medical indifference claims against all of the defendants.

         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. 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 omitted).

         1. Eleventh Amendment Immunity

         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 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 ...

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