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Abreu v. Brown

United States District Court, N.D. New York

January 22, 2018

CARLOS ABREU, Plaintiff,
v.
KEVIN J. BROWN, ET AL, Defendants.

          ORDER

          ELIZABETH A. WOLFORD United States District Judge

         INTRODUCTION

         Plaintiff 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).

         DISCUSSION

         Under 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).

         In 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").

         Plaintiff 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).

         Based 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).

         I. Procedural History and Pleading Requirements

         Plaintiff 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).

         Rule 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 observed:

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).

         While a 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 violations.

         II. Plaintiffs Allegations at Wende C.F.

         In his 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.).

         A. Medical Claims (Dkt. 50 at ¶¶ 9-22)

         Plaintiff 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.

(Id. at¶l5).

         To make 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)).

         Likewise, 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.

         Finally, 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 that Defendants:

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.[1]

         Plaintiff 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).

         Likewise, 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.

         Plaintiff 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 ...


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