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Dowling v. D. Fredrickson

United States District Court, N.D. New York

January 2, 2018

JAVON DOWLING, Plaintiff,
v.
D. FREDRICKSON, et al., Defendants.

          JAVON DOWLING Plaintiff, pro se

          HON. ERIC T. SCHNEIDERMAN New York State Attorney General, DAVID A. ROSENBERG, ESQ. Ass't Attorney General Attorney for Defendants

          DECISION and ORDER

          MAE A. D'AGOSTINO United States District Judge

         I. BACKGROUND

         The Clerk has sent to the Court an amended civil rights complaint submitted for filing by pro se plaintiff Javon Dowling pursuant to 42 U.S.C. Section 1983 ("Section 1983").[1] Dkt. No. 11 ("Am. Compl."). For the reasons set forth below, the amended complaint is accepted for filing and is the operative pleading and defendants Schleicher, Fredrickson, and Barkman, who have already been served with the complaint, are directed to respond to the claims against them that have survived sua sponte review.

         II. DISCUSSION

         A. Plaintiff's Original Complaint

         Plaintiff commenced this action by filing a civil rights complaint pursuant to Section 1983 together with an application to proceed with the action in forma pauperis. Dkt. No. 1 ("Compl."); Dkt. No. 2 ("IFP Application). By Decision and Order filed August 22, 2017, plaintiff's IFP Application was granted. Dkt. No. 6 (the "August 2017 Order").

         In his original complaint, plaintiff named as defendants Corrections Lieutenant D. Fredrickson, Corrections Officer E. Schleicher, Corrections Sergeant Barkman, Hearing Officer C. Bruccini, Greene Correctional Facility Superintendent Brandon Smith, Corrections Sergeant "John Doe, " Corrections Officer "Jane Doe, " and Acting DOCCS Commissioner Anthony J. Annucci. See generally Compl. Following review of the complaint pursuant to 28 U.S.C. § 1915(e)(2)(B), the complaint was construed to assert the following claims: (1) a First Amendment retaliation claim against defendants Fredrickson, Barkman, and Schleicher; (2) a Fourteenth Amendment due process claim against defendants Bruccini, Smith, Annucci, "John Doe, " and "Jane Doe"; and (3) a Fourteenth Amendment equal protection claim against all of the defendants. See August 2017 Order at 5-6.

         In the August 2017 Order, the Court found as follows. First, plaintiff's First Amendment retaliation claim against defendants Fredrickson, Schleicher, and Barkman survived sua sponte review and required a response. Id. at 7-9. Second, plaintiff's Fourteenth Amendment due process claim against defendants Bruccini, Smith, Annucci, "John Doe, " and "Jane Doe" was dismissed for failure to state a claim upon which relief may be granted because plaintiff failed to plead the existence of a valid liberty interest with respect to his 77-day SHU confinement. August 2017 Order at 9-11. Third, plaintiff's Fourteenth Amendment equal protection claim against all of the defendants was dismissed for failure to state a claim upon which relief may be granted because the allegation that defendants denied him equal protection was entirely conclusory. Id. at 11-12.

         In light of the special status plaintiff enjoys as a pro se civil rights litigant, the August 2017 Order advised plaintiff that, should he seek to pursue any of the claims that were dismissed without prejudice, he could file an amended complaint, which would be subject to review by the Court pursuant to 28 U.S.C. § 1915(e)(2)(B). August 2017 Order at 13 n.8.

         B. Review of the Amended Complaint

         The legal standard governing the dismissal of a pleading pursuant to 28 U.S.C. § 1915(e)(2)(B) was discussed at length in the August 2017 Order and will not be restated in this Decision and Order. See August 2017 Order at 2-3.

         When plaintiff submitted his amended complaint, he amended the defendants by withdrawing all claims against defendants Bruccini, Smith, Annucci, "John Doe, " and "Jane Doe." Am. Compl. at 1-2. The amended complaint also contains new allegations that relate to his retaliation claim against defendants Fredrickson, Schleicher, and Barkman, but does not make any new allegations that could ...


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