United States District Court, N.D. New York
ELIZABETH A. WOLFORD United States District Judge
Carlos Abreu ("Plaintiff), pro se and
incarcerated, filed the instant action and 15-CV-6155 CJS,
which were consolidated. Plaintiff was directed to file a
single Amended Complaint addressing all claims from both
actions. (Dkt. 21). Plaintiff has done so, and the Amended
Complaint (Dkt. 50) is now reviewed pursuant to 28 U.S.C.
§§ 1915(e)(2)(B) and 1915A. Plaintiffs Amended
Complaint comprises 81 pages, more than 150 paragraphs, more
than 150 Defendants, and it alleges numerous violations of
his constitutional rights. For the reasons discussed below,
some of Plaintiff s claims must be dismissed pursuant to
§§ 1915(e)(2)(B) and 1915A for failure to state a
claim on which relief may be granted, some claims will
proceed to service, while other claims must be severed and
transferred to the Northern and Southern Districts of New
York pursuant to 28 U.S.C. § 1406(a).
28 U.S.C. §§ 1915(e)(2)(B) and l9l5A(a), the Court
must conduct an initial screening of this Amended Complaint.
The Court must dismiss the Amended Complaint if it is
"frivolous and malicious, " "fails to state a
claim upon which relief may be granted, " or "seeks
monetary relief against a defendant who is immune from such
relief." 28 U.S.C. § l9l5(e)(2)(B)(i)-(iii).
evaluating the Amended Complaint, the Court must accept as
true all of the factual allegations and must draw all
inferences in Plaintiffs favor. See Larkin v.
Savage, 318 F.3d 138, 139 (2d Cir. 2003); King v.
Simpson, 189 F.3d 284, 287 (2d Cir. 1999). While "a
court is obliged to construe [pro se] pleadings
liberally, particularly when they allege civil rights
violations, " McEachin v. McGuinnis, 357 F.3d
197, 200 (2d Cir. 2004), even pleadings submitted pro
se must meet the notice requirements of Rule 8 of
the Federal Rules of Civil Procedure. Wynder v.
McMahon, 360 F.3d 73 (2d Cir. 2004). "Specific
facts are not necessary, " and the plaintiff "need
only 'give the defendant fair notice of what the . . .
claim is and the grounds upon which it rests.'"
Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007) (internal quotation marks and citation omitted));
see also Boykin v. Keycorp, 521 F.3d 202, 213 (2d
Cir. 2008) (discussing pleading standard in pro se
cases and stating that, "even after Twombly,
dismissal of a pro se claim as insufficiently pleaded is
appropriate only in the most unsustainable of cases").
brings this action pursuant to 42 U.S.C. § 1983. To
state a valid claim under § 1983, the plaintiff must
allege that the challenged conduct (1) was attributable to a
person acting under color of state law, and (2) deprived the
plaintiff of a right, privilege, or immunity secured by the
Constitution or laws of the United States." Whalen
v. County of Fulton, 126 F.3d 400, 405 (2d Cir. 1997).
on its evaluation of the Amended Complaint, the Court finds
that some of Plaintiffs claims must be dismissed pursuant to
§ l9l5(e)(2)(B)(ii) and § l9l5A(b) because they
fail to state a claim on which relief may be granted, others
may proceed to service, while other claims must be severed
and transferred to the Northern and Southern Districts of New
York pursuant to 28 U.S.C. § 1406(a).
Procedural History and Pleading Requirements
originally filed two Complaints, consisting of some 266
handwritten pages, 1, 170 numbered paragraphs, and 131 named
and unnamed Defendants. (Dkt. 21 at 6). The Court directed
Plaintiff to file a single amended complaint and specifically
reminded him, in preparing his Amended Complaint, of the need
to establish the personal liability of individuals named as
Defendants. The Court also warned Plaintiff that he should
not name Defendants in his Amended Complaint "if he
cannot allege that they were personally involved in causing a
constitutional violation." (Id. at 7-8).
of the Federal Rules of Civil Procedure provides, in relevant
part, that a pleading which states a claim for relief
"must contain: ... a short and plain statement of the
claim showing that the pleader is entitled to relief. . .
." Fed.R.Civ.P. 8(a)(2). Rule 8 further provides that
"[e]ach allegation must be simple, concise, and
direct." Fed.R.Civ.P. 8(d)(1). As the Second Circuit has
The statement should be plain because the principal function
of the pleadings under the Federal Rules is to give the
adverse party fair notice of the claim asserted so as to
enable him to answer and prepare for trial. The statement
should be short because unnecessary prolixity in a pleading
places an unjustified burden on the court and the party who
must respond to it because they are forced to select the
relevant material from a mass of verbiage.
Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988)
(internal quotation marks and citations omitted); see
also Simmons v. Abruzzo, 49 F.3d 83, 86 (2d Cir. 1995).
claim for relief must be short and plain, it must also
contain allegations that, if true, would establish the
personal liability of the named defendant for the
constitutional violation(s) attributed to that defendant. A
plaintiffs conclusory allegation of a constitutional
violation, without more, fails to state a claim on which
relief may be granted. See Barr v. Abrams, 810 F.2d
358, 363 (2d Cir. 1987) ("As we have repeatedly held,
complaints relying on the civil rights statutes are
insufficient unless they contain some specific allegations of
fact indicating a deprivation of rights, instead of a litany
of general conclusions that shock but have no
meaning."); see also Brown v. City of Oneonta,
106 F.3d 1125, 1133 (2d Cir. 1997) (complaints containing
only conclusory, vague or general allegations of a conspiracy
to deprive a person of constitutional rights do not state a
claim for relief); Flaherty v. Coughlin, 713 F.2d
10, 13 (2d Cir. 1983) ("[A] complaint which alleges
retaliation in wholly conclusory terms may safely be
dismissed on the pleadings alone."). Despite the express
direction that Plaintiff set forth the personal liability of
each person named as a Defendant, much of the Amended
Complaint consists of lists of individuals who are alleged in
conclusory fashion to have committed constitutional
Plaintiffs Allegations at Wende C.F.
preliminary statement, Plaintiff states that he intends to
make the following allegations: Eighth Amendment violations
involving deliberate indifference to serious medical needs;
"physical and psychological abuse"; discrimination
"based on his mental illness, race and ethnicity";
violations of his First Amendment right to "religious
means" and access to courts; sexual abuse; conspiracy;
and retaliation. (Dkt. 50 at 6). These occurred at three
Department of Correction and Community Supervision
facilities: Wende Correctional Facility ("Wende
C.F."), the prison where Plaintiff was held when the
events alleged in the original Complaint took place, as well
as Sullivan Correctional Facility ("Sullivan C.F.")
and Great Meadow Correctional Facility ("Great Meadow
C.F."), prisons to which Plaintiff was transferred after
filing his initial Complaint. (Id.).
Medical Claims (Dkt. 50 at ¶¶ 9-22)
states that he was transferred to Wende C.F. on July 15,
2014. (Dkt. 50 at 7). He had previously been diagnosed with
tuberculosis and prescribed medication to treat the disease.
The course of medication was to be between nine months and
one year, although the date that the treatment started is not
provided. Upon arrival at Wende C.F., Dr. Levitt ordered
tuberculosis testing to be conducted, and when the disease
was confirmed, re-prescribed the medication. As a result,
Defendant for "several days denied Abreu his T.B.
medications." (Id. at ¶ 13).
Plaintiff also alleges that:
Defendants Dr. Levitt she is the Facility Health Service
Director at Wende CF and she alleged and told me that she was
directed and ordered by the Deputy Superintendent for
Administration Ms. Schumacher, the Deputy Superintendent for
Health Services Ms. Killinger, the Superintendent Lempke, and
Dr. Koenigsmann, don't give Abreu nothing, or limited
medical health care because Abreu has two (2) pendant
lawsuits in the Western District Court.
out a § 1983 retaliation claim, an inmate must show the
following: (1) he was engaged in constitutionally protected
conduct; and (2) the prison officials conduct was taken in
retaliation for the inmate's protected conduct.
Graham v. Henderson, 89 F.3d 75, 80 (2d Cir. 1996).
"[I]ntentional obstruction of a prisoner's right to
seek redress of grievances 'is precisely the sort of
oppression that . . . section 1983 [is] intended to
remedy.'" Franco v. Kelly, 854 F.2d 584,
589 (2d Cir. 1988) (alterations in original) (quoting
Morello v. James, 810 F.2d 344, 347 (2d Cir. 1987)).
"The right to petition government for redress of
grievances-in both judicial and administrative forums-is
'"among the most precious of the liberties
safeguarded by the Bill of Rights.'""
Graham, 89 F.3d at 80 (citations omitted). Although
prisoner's claims of retaliation are examined with
"skepticism and particular care, " Colon v.
Coughlin, 58 F.3d 865, 872 (2d Cir. 1995), an explicit
statement that adverse medical actions were taken in
retaliation for pursuing redress of grievances, presumed true
at this stage in the proceedings, is sufficient to proceed to
service. See, e.g., Parks v. Blanchette, 144
F.Supp.3d 282, 331 (D. Conn. 2015)("Prisoner plaintiffs
may rely on circumstantial evidence to prove their
retaliation claims, such as temporal proximity of events, but
in doing so, the plaintiff also must usually provide some
non-conclusory evidence that raises an inference of
retaliatory animus in order to proceed to trial."
(internal quotation marks omitted)).
Plaintiffs allegation that an alleged conspirator explicitly
admitted concerted action on the part of the group states a
cognizable claim that two or more Defendants have engaged in
a conspiracy to deprive the Plaintiff of his constitutional
rights, establishing an agreement among the alleged
conspirators. See, e.g., Spear v. Town of West
Hartford, 954 F.2d 63, 68 (2d Cir. 1992);
Salahuddin, 861 F.2d at 43.
Plaintiffs allegations raise Eighth Amendment claims
regarding the denial of medical care. A claim of inadequate
medical care rises to the level of a constitutional violation
only where the facts alleged show that the defendant was
deliberately indifferent to a plaintiffs serious medical
needs. Estelle v. Gamble, 429 U.S. 97, 104-05
(1976); see also Ross v. Kelly, 784 F.Supp.
35, 43-44 (W.D.N.Y.), aff'd, 970 F.2d 896 (2d
Cir. 1992)."A serious medical condition exists where
'the failure to treat a prisoner's condition could
result in further significant injury or the unnecessary and
wanton infliction of pain.'" Harrison v.
Barkley, 219 F.3d 132, 136-137 (2d Cir. 2000) (quoting
Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir.
1998) (internal quotation marks omitted)). Plaintiff alleges
denied Abreu his medications, denied him regularly sick call
services, denied him his T.B. meds, denied him his asthma
inhaler his Lipitol and/or Claritin meds, refused to
re-prescribe his orthopedic boots, back brace, hand brace,
denied Mr. Abreu treatment for his chronic pains in lower
back, his left ankle, foot and treatment for his bleeding and
pain in his anus rectal/stool.
(Dkt. 50 at ¶ 14). Coupled with Plaintiffs allegations
regarding Dr. Levitt's statements, Plaintiff has
sufficiently pled claims of retaliation, conspiracy, and
denial of medical care against Defendants Levitt, Schumacher,
Killinger, Lempke, Koenigsmann to permit them to proceed to
service at this time.
also alleges that Doctors Bozer, Bukowski, Stubeusz, and
Nurses Leuthe, Fucina, Toporek, Obertean, Vollmer, LaPenna,
Davis, and Neal denied him medical care. (Id.).
However, despite the previously discussed warning directing
Plaintiffs attention to the necessity of establishing
personal involvement of each Defendant named in the Amended
Complaint, these allegations are conclusory in nature.
Conclusory allegations fail to state a claim on which relief
may be granted. Barr, 810 F.2d at 363 ("As we
have repeatedly held, complaints relying on the civil rights
statutes are insufficient unless they contain some specific
allegations of fact indicating a deprivation of rights,
instead of a litany of general conclusions that shock but
have no meaning."). In the case of an individual
defendant, Plaintiff must show that the Defendant was
personally involved in a constitutional deprivation,
Sealey v. Giltner, 116 F.3d 47, 51 (2d Cir. 1997),
or that the Defendant, employed in a position of control,
failed to remedy the alleged wrong after learning of it, or
created a policy or custom under which unconstitutional
practices occurred, or was grossly negligent in managing
subordinates, Wright v. Smith, 21 F.3d 496, 501 (2d
Cir. 1994); see also Colon, 58 F.3d at 874.
Plaintiffs factual allegations against these Defendants are
merely that "they refused intentionally and in bad faith
denied me medical care, " followed by a list of medical
care. (Dkt. 50 at ¶ 14). Plaintiffs allegations fail to
set forth the nature of the involvement of the Defendants.
The claims set forth in ¶ 14, against all Defendants
except Dr. Levitt, are therefore dismissed with prejudice as
Plaintiff has already been granted an opportunity to amend
his Complaint. See Cuoco v. Moritsugu, 222 F.3d 99,
112 (2d Cir. 2000); see also Seuerwald v. Cleveland,
651 Fed.Appx. 49(2dCir. 2016).
in a wholly conclusory fashion, Plaintiff sets forth claims
that Defendant Killinger made "similar" admissions
that "all this" (presumably referring to the
conspiracy to deny him medical care) came from senior
officials, whom Plaintiff lists. A conclusory allegation that
a "similar" comment was made is insufficient to
establish the personal involvement of the persons so accused,
or the existence of a conspiracy to deny Plaintiff medical
care. See, e.g., Leon v. Murphy, 988 F.2d 303, 310
(2d Cir. 1993) (affirming summary judgment dismissing
conspiracy claim based only on conclusory allegations).
Plaintiffs claims forth in ¶ 17 are also dismissed with
prejudice for failure to state a claim on which relief may be
granted. See Cuoco, 222 F.3d at 112.
makes additional claims in ¶ 19 against Defendant
Wyzykowski, asserting that Wyzykowski (and Dr. Levitt) denied
him prescription glasses with tinted lenses, and that those
glasses were "lost by prison officers in the SHU."
(Dkt. 50 at 10). Plaintiffs allegations that some other
official lost his glasses, and that Defendant Wyzykowski
denied him glasses in some unspecified manner, again state a
conclusion, and do not show that Defendant Wyzykowski's
actions demonstrate deliberate indifference to Plaintiffs
serious medical need. As to Defendant Levitt, these
allegations relate to the claims going forward as directed