United States District Court, N.D. New York
WILLIAM D. THOMAS, Plaintiff,
L. PINGOTTI; et al., Defendants. WILLIAM D. THOMAS, Plaintiff,
POLIZZI;et al., Defendants.
WILLIAM D. THOMAS Plaintiff, pro se.
DECISION AND ORDER
T. SUDDABY, CHIEF UNITED STATES DISTRICT JUDGE.
Clerk of the Court has sent to the Court for review two
complaints filed pro se by plaintiff William D. Thomas in the
above-captioned actions. Plaintiff, who is confined at Downstate
Correctional Facility, asserts claims arising out of his
confinement at Shawangunk Correctional Facility
("Shawangunk C.F.") in 2016. Plaintiff has not paid
the filing fee in either action, and seeks leave to proceed
in forma pauperis ("IFP").
reviewing a complaint pursuant to 28 U.S.C. § 1915(e)(2)
and 28 U.S.C. § 1915A may properly consider whether the
claims asserted by the plaintiff are duplicative of claims
asserted in another action. As the Second Circuit has
recognized, "plaintiffs have no right to maintain two
actions on the same subject in the same court, against the
same defendant at the same time." Curtis v.
Citibank, N.A., 226 F.3d 133, 138-39 (2d Cir. 2000). The
principles which guide courts addressing duplicative and
repetitive claims rest on considerations of "(w)ise
judicial administration, giving regard to conservation of
judicial resources and comprehensive disposition of
litigation." Kerotest Mfg. Co. v. C-O-Two Fire
Equip. Co., 342 U.S. 180, 183 (1952). The doctrine is
also meant to protect parties from "the vexation of
concurrent litigation over the same subject matter."
Adam v. Jacob, 950 F.2d 89, 93 (2d Cir. 1991). Thus,
"[c]ourts generally look to the identity of the parties,
legal claims, factual allegations including temporal
circumstances, and the relief sought to determine if the
complaint is repetitive or malicious." Hahn v.
Tarnow, No. 06-CV-12814, 2006 WL 2160934, at *3 (E.D.
Mich. July 31, 2006).
managing the litigation in its court, there are several
approaches to the proper disposition of duplicative actions,
including dismissal without prejudice, and consolidation.
Curtis, 226 F.3d at 138. The district court has
broad discretion in making this determination, and the
exercise of its power is reviewed by the Court of Appeals for
abuse of discretion. Id.; see also Lopez v.
Ferguson, 361 Fed. App'x 225, 226 (2d Cir. 2010)
("We review a district court's dismissal of claims
as duplicative for abuse of discretion."); Johnson
v. Celotex Corp., 899 F.2d 1281, 1284-85 (2d Cir. 1990)
("The trial court has broad discretion to determine
whether consolidation is appropriate.").
pleading submitted by plaintiff in Thomas I is
styled as a "Complaint under [New York] Civil Service
Law Section 75." See Dkt. No. 1 at
While nominally directed towards Shawangunk C.F. Acting Supt.
Pingotti, the pleading identifies sixteen additional
corrections and medical staff as "respondents" and
alleges numerous claims of misconduct by those individuals
during plaintiff's confinement at Shawangunk C.F. in
2016. Id. at 5-9. Liberally construed, plaintiff
claims that he has been subjected to adverse actions in
retaliation for his having filed grievances and complaints
(related primarily to his participation in the Sex Offender
Treatment Program ("SOTP")), disciplined without
due process, denied proper and adequate mental health care,
and denied proper investigation of and redress for the
misconduct complained of his grievances.
Thomas II, plaintiff submitted a twenty-five page
complaint utilizing the form civil rights complaint available
to litigants in the Northern District of New York.
See Dkt. No. 1 ("Compl."). All seventeen
of the defendants named in Thomas I are defendants
in this complaint. Id. at 1-7. The complaint in
Thomas II sets forth, with some additional factual
support, the instances of misconduct complained of in
Thomas I, as well as additional claims and three
additional defendants. Id. at 9-23. Plaintiff seeks
an award of compensatory and punitive damages as well as
declaratory and injunctive relief. Id. at 24-25.
review of the two pleadings, the Court finds that there is
considerable duplication and repetition of claims and
defendants in these two actions, as to which common questions
of law and fact exist. To the extent that these actions
differ in any significant way, the differences arise only
from the additional claims and defendants in Thomas
II. The Court also finds that the pleading in Thomas
II sets forth plaintiff's claims in a more comprehensive
and well-organized manner than does the pleading in
Thomas I which, as noted, purports to be a state
court petition under Civil Service Law Section 75.
upon the foregoing, and in order to conserve judicial
resources and avoid duplicative litigation, the Court hereby
dismisses Thomas I without prejudice in favor of
U.S.C. § 1915 permits an indigent litigant to commence
an action in a federal court without prepayment of the filing
fee that would ordinarily be charged." Cash v.
Bernstein, No. 09-CV-1922, 2010 WL 5185047, at *1
(S.D.N.Y. Oct. 26, 2010). "Although an indigent,
incarcerated individual need not prepay the filing fee at the
time of filing, he must subsequently pay the fee, to the
extent he is able to do so, through periodic withdrawals from
his inmate accounts." Id. (citing 28 U.S.C.
§ 1915(b) and Harris v. City of New York, 607
F.3d 18, 21 (2d Cir. 2010)).
review, the Court finds that plaintiff has submitted a
completed IFP application which has been certified by an
appropriate official at his facility, see Dkt. No.
10, and which demonstrates economic need. See 28
U.S.C. § 1915(a)(2). Plaintiff has also filed the inmate
authorization required in the Northern District. Dkt. No. 3.
plaintiff's application to proceed with this action IFP
SUFFICIENCY OF THE COMPLAINT
found that plaintiff meets the financial criteria for
commencing this action in forma pauperis, and because
plaintiff seeks relief from officers and employees of a
governmental entity, the Court must consider the sufficiency
of the allegations set forth in his complaint in light of 28
U.S.C. § 1915(e) and 28 U.S.C. § 1915A. Section
1915(e)(2)(B) 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).Similarly, Section
1915A(b) directs that 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(b); see also
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).
reviewing a 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).
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)
(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.
seeks relief in 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."
Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498,
508 (1990) (quoting 42 U.S.C. § 1983)); see also
Myers v. Wollowitz, No. 95-CV-0272, 1995 WL 236245, at
*2 (N.D.N.Y. Apr. 10, 1995) (McAvoy, C.J.) (finding that
Section 1983 "is the vehicle by which individuals may
seek redress for alleged violations of their constitutional
rights"). To be held liable for damages in a Section
1983 action, a defendant must have been personally involved
in the alleged violation. McKinnon v. Patterson, 568
F.2d 930, 934 (2d Cir. 1977). Thus, to set forth a cognizable
claim under Section 1983, a "plaintiff must 'allege
a tangible connection between the acts of the defendant and
the injuries suffered.'" Austin v. Pappas,
No. 04-CV-7263, 2008 WL 857528, at *2 (S.D.N.Y. Mar. 31,
2008) (quoting Bass v. Jackson, 790 F.2d 260, 263
(2d Cir. 1986)).
asserts numerous claims for the violation of his rights
protected under the First, Eighth, and Fourteenth Amendments
to the U.S. Constitution. The sufficiency of those claims, as
set forth in the complaint in seven causes of action, is
First Cause of Action - Retaliation
state a claim of retaliation under the First Amendment, a
plaintiff must allege facts plausibly suggesting the
following: (1) the speech or conduct at issue was
"protected;" (2) the defendants took "adverse
action" against the plaintiff - namely, action that
would deter a similarly situated individual of ordinary
firmness from exercising his or her constitutional rights;
and (3) there was a causal connection between the protected
speech and the adverse action - in other words, the protected
conduct was a "substantial or motivating factor" in
the defendant's decision to take action against the
plaintiff. Gill v. Pidlypchak, 389 F.3d 379, 380 (2d
Cir. 2004) (citing Dawes v. Walker, 239 F.3d 489,
492 (2d. Cir. 2001), overruled on other grounds,
Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002)).
Second Circuit has long instructed that because virtually any
adverse action taken against a prisoner by a prison official
can be characterized as a constitutionally proscribed
retaliatory act, courts must examine claims of retaliation
with "skepticism and particular care." Davis v.
Goord, 320 F.3d 346, 352 (2d Cir. 2003) (quoting
Dawes, 239 F.3d at 491). Analysis of retaliation
claims thus requires thoughtful consideration of the
protected activity in which the inmate plaintiff has engaged,
the adverse action taken against him or her, and the factual
allegations tending to link the two. "[A] complaint
which alleges retaliation in wholly conclusory terms may
safely be dismissed on the pleadings alone."
Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir.
plaintiff alleges that he was retaliated against "for
filing grievances and voicing opinion. And filing the 42
U.S.C. 1983 lawsuit." Compl. at 10. Plaintiff
identifies the following instances in which defendants took
allegedly adverse action against him: C.O. Bertone threatened
plaintiff with physical harm if he "continue[d] to make
complaints;" C.O. Cutler and C.O. Stefanik wrote false
reports against plaintiff "due to plaintiff voicing his
opinion, and views;" and C.O. Clayburn issued a false
misbehavior report to plaintiff after learning that plaintiff
had written several inmate grievances against "fellow
employees." Id. at 12.
well-settled that "verbal harassment, or even threats,
are generally held not to rise to the level of adverse action
that will support a First Amendment retaliation claim."
Rosales v. Kikendall, 677 F.Supp.2d 643, 648
(W.D.N.Y. 2010) (citing Cabassa v. Smith, No. 08
Civ. 480 (LEK/DEP), 2009 WL 1212495, at *7 (N.D.N.Y. Apr. 30,
2009)); see Bartley v. Collins, No. 95 Civ. 10161,
2006 WL 1289256, at *6 (S.D.N.Y. May 10, 2006)
("[V]erbal threats such as 'we going to get you, you
better drop the suit, ' do not rise to the level of
adverse action."); Kemp v. LeClaire, No. 03
Civ. 844, 2007 WL 776416, at *15 (W.D.N.Y. Mar. 12, 2007)
(threats such as "your day is coming, "
"you'll be sent to your mother in a black box,
" and "you'll get your black ass kicked"
are indistinguishable from those that have been found
insufficient to establish a constitutional violation).
review, the Court finds that C.O. Bertone's statement
that he would "make something happen" to plaintiff
if he continued to make complaints, without more, does not
suffice to state a cognizable First Amendment retaliation
claim against this defendant.
does not enjoy a protected constitutional right "to be
free from false and inaccurate information" in his
prison records. The creation of a false report in a
prisoner's file is not, on its own, a due process
violation. See Boddie v. Schnieder, 105 F.3d 857,
862 (2d Cir.1997) ("a prison inmate has no general
constitutional right to be free from being falsely accused in
a misbehavior report"); Hollman v. Bartlett,
No. 08-CV-1417, 2011 WL 4382191, at *12 (E.D.N.Y. Aug. 26,
2011) (the placement of a false report in an inmate's
file, without more, is not a due process violation). The only
way that false accusations contained in a misbehavior report
can rise to the level of a constitutional violation is when
there has been more such as "retaliation against the
prisoner for exercising a constitutional right."
Boddie, 105 F.3d at 862.
while plaintiff alleges that C.O. Cutler and C.O. Stefanik
created false reports about plaintiff which were retaliatory
in nature, plaintiff has not provided any facts regarding the
type of records or reports that were created, the manner in
which these records were falsified, or how such falsity
harmed plaintiff. Upon review, the Court finds that plaintiff
has not alleged facts sufficient to plausibly suggest that
these defendants took actions against him which were
sufficiently "adverse" for purposes of the First
Amendment. As a result, plaintiff's claims against C.O.
Cutler and C.O. Stefanik do not survive initial review and
are dismissed without prejudice. Sheehy v. Brown,
335 Fed.App'x 102, 104 (2d Cir. 2009) (summary order)
(allegations that "are so vague as to fail to give the
defendants adequate notice of the claims against them"
are subject to dismissal.).
Court also considered the sufficiency of plaintiff's
claim that C.O. Clayburn issued a false misbehavior report in
retaliation for grievances plaintiff had filed against other
corrections officers. See Compl. at
"Generally, alleged retaliation motivated by an action
the prisoner took which did not personally involve the prison
officials is insufficient for a retaliation claim."
Ortiz v. Russo, No. 13 CIV. 5317, 2015 WL 1427247,
at *11 (S.D.N.Y. Mar. 27, 2015) (citing Wright v.
Goord, 554 F.3d 255, 274 (2d Cir. 2009) (dismissing a
pro se prisoner's claim that he was assaulted by the
defendant in retaliation for an earlier letter he wrote which
did not name or address defendant)); see also Guillory v.
Ellis, No. 9:11-CV- 0600 (MAD/ATB), 2014 WL 4365274, at
*18 (N.D.N.Y. Aug. 28, 2014) ("it is difficult to
establish one defendant's retaliation for complaints
against another defendant"); Roseboro v.
Gillespie, 791 F.Supp.2d 353, 369 (S.D.N.Y. 2011)
(plaintiff "failed to provide any basis to believe that
[defendant] retaliated for a grievance that she was not
personally named in"). Here, because plaintiff has not
alleged facts sufficient to plausibly suggest that grievances
he wrote against other officers were a "substantial or
motivating factor" in C.O. Clayburn's decision to
issue the challenged misbehavior report, this claim does not
survive initial review.
upon the foregoing, plaintiff's retaliation claims
against C.O. Bertone, C.O. Cutler, C.O. Stefanik, and C.O.
Clayburn set forth in the First Cause of Action are dismissed
without prejudice for failure to state a claim upon which
relief may be granted. See 28 U.S.C. §
1915(e)(2)(B)(ii) and 28 U.S.C. § 19215A(b)(1).
Second Cause of Action - Equal Protection
Equal Protection Clause requires that the government treat
all similarly situated people alike. City of Cleburne,
Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985).
Specifically, the Equal Protection Clause "bars the
government from selective adverse treatment of individuals
compared with other similarly situated individuals if
'such selective treatment was based on impermissible
considerations such as race, religion, intent to inhibit or
punish the exercise of constitutional rights, or malicious or
bad faith intent to injure a person.'" Bizzarro
v. Miranda, 394 F.3d 82, 86 (2d Cir. 2005) (quoting
LeClair v. Saunders, 627 F.2d 606, 609-10 (2d Cir.
1980)). To state a viable Equal Protection claim, a plaintiff
generally must allege "purposeful discrimination . . .
directed at an identifiable or suspect class." Giano
v. Senkowski, 54 F.3d 1050, 1057 (2d Cir. 1995). In the
alternative, under a "class of one" theory,
plaintiff must allege that he has been ...