United States District Court, N.D. New York
CARRASCO 09-A-1668 Plaintiff, pro se Great Meadow
DECISION AND ORDER
United States District Judge
Jose Carrasco ("Plaintiff") 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 on May 26,
2017 (the "May Order"), this Court granted
Plaintiff's IFP application and reviewed the sufficiency
of the Complaint in accordance with 28 U.S.C. § 1915(e)
and 28 U.S.C. § 1915A. On the basis of that review, the
Court dismissed the following, without prejudice: (i) claims
against defendants A.J. Annucci ("Annucci"), Nurse
Administrator C. Simpson ("Simpson"), Deputy
Superintendent of Administration D. Keysor
("Keysor"), Sergeant Mr. H ("Mr. H."),
and Family Health Service Director V. Johnson
("Johnson"); (ii) Eighth Amendment claims against
Defendants Nurse Administrator J. Collins
("Collins") and Dr. Sienko ("Sienko");
(iii) supervisory claims against Defendant Superintendent
Thomas LaValley ("LaValley"); and (iv) retaliation
claims against Defendants Correction Officer John Doe #1,
Correction Officer John Doe #2, and LaValley. See Dkt.
No. 7, generally. The Court also concluded that
Plaintiff's Eighth Amendment claims against John Doe #1,
John Doe #2, and Nurse Jane Doe, that arose in October 2013,
fell outside the three-year statute of limitations applicable
to Section 1983 actions and were time-barred. See
Id. at 10-12. In light of his pro se status, Plaintiff
was afforded an opportunity to submit an Amended Complaint.
See id. at 19.
31, 2017, Plaintiff filed an Amended Complaint claiming that
John Doe #1, John Doe #2, Jane Doe, Collins, and Sienko
violated his Eighth Amendment rights. See Dkt. No.
10, generally. Plaintiff did not assert any
allegations against Simpson, Johnson, Keysor, Mr. H, and
LaValley or retaliation claims. See Id. Plaintiff
provided factual allegations in an attempt to trigger the
continuing violation doctrine. See Id. In a Decision
and Order filed on September 11, 2017 (the "September
Order"), the Court dismissed the Eighth Amendment claims
finding that Plaintiff failed to plead any "non-time
barred acts" to invoke the doctrine. Dkt. No. 11. The
Court afforded Plaintiff one final opportunity to amend the
complaint. See Id. at 7.
before the Court is Plaintiff's Second Amended Complaint.
Dkt. No. 12 ("Sec. Am. Compl.").
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 May Order and will not be restated here.
See Dkt. No. 7 at 2-4. Taking into account
Plaintiff's pro se status, the Court construes the
allegations in Plaintiff's Second 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
REVIEW OF SECOND AMENDED COMPLAINT
facts asserted in the Second Amended Complaint are largely
identical to the facts asserted in the Amended Complaint.
Plaintiff claims that while he was "in treatment, "
defendants placed him in "situations that caused him to
be stabbed by other inmate[s]." Sec. Am. Compl. at 1.
Plaintiff asserts that "these subsequent problems
eminented [sic] from the original crisis." Id.
Plaintiff also alleges that he was repeatedly transferred to
different facilities, without specific facts related to when,
where, or who was responsible for the transfers. See
id. at 2.
related to Section 1983 actions, the statute of limitations,
and the continuing violation doctrine was discussed in the
May Order and September Order and will not be restated
herein. See Dkt. No. 7 at 10-11; Dkt. No. 11 at 5-6.
In the September Order, the Court held that,
"Plaintiff's conclusory assertion that he is
subjected to a discriminatory policy 'each time' he
interacts with "OMH staff" and "officials,
" was insufficient to suggest the existence of an
ongoing policy of discrimination. See Dkt. No. 11 at
6. Moreover, the Court noted that Plaintiff failed to plead
the existence of non-time barred acts taken in furtherance of
that policy or personal involvement by any defendant. See
reviewed Plaintiff's allegations in the Second Amended
Complaint, the Court finds that the pleading does not contain
any facts suggesting the existence of non-time barred acts
taken in furtherance of a policy or personal involvement by
any defendant. Despite the fact that Plaintiff was afforded
two opportunities to amend the Complaint, the amended
pleading does not cure the deficiencies identified in the
original Complaint. Plaintiff's Second Amended Complaint
lacks facts establishing that the action is timely and
further, is devoid of any reasonable explanation for the
untimely filing. Moreover, Plaintiff has not demonstrated
"extraordinary circumstances" that would compel
this Court to apply the tolling doctrine.
this action 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 upon which relief may be granted, but because
plaintiff has already had two opportunities to ...