United States District Court, N.D. New York
DECISION AND ORDER
N. HURD, UNITED STATES DISTRICT JUDGE.
Andrew Bell ("Bell" or "plaintiff")
commenced this action pro se by filing a civil rights
complaint together with an application for leave to proceed
in forma pauperis. Dkt. No. 1 ("Compl."); Dkt. No.
9 ("IFP Application").
Decision and Order filed March 20, 2018, Bell's IFP
Application was granted and his complaint was reviewed in
accordance with 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C.
§ 1915A(b). Dkt. No. 10 (the "March 2018
Order"). Upon that review, the complaint was determined
to be subject to dismissal for failure to state a claim upon
which relief may be granted.
in light of his pro se status, Bell was afforded an
opportunity to submit an amended complaint. See
March 2018 Order. Presently under consideration is
plaintiff's proposed amended complaint. Dkt. No. 13
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 March 2018 Order and it will not be restated in
this Decision and Order. See March 2018 Order at
original complaint, Bell alleged that on February 11, 2017 he
"fell into a diabetic shock seizure and was
unresponsive[.]" Compl. at 2. Plaintiff claimed that
defendant Correctional Officer A. Beck "misinformed
medical staff that the plaintiff had overdosed on a narcotic
substance[, ]" which resulted in defendant Nurse
Administrator "C" placing tubes in his arms, nose
and penis before he was transferred to defendant Albany
Medical Center. Id. at 3. Plaintiff further claimed
that he was "mistreated as a[n] overdose patient on
drugs" while at Albany Medical Center, and experienced
harm as a result of the mistreatment. Id. at 3.
Dr. Arshad Sami was Bell's treating physician at Albany
Medical Center. Compl. at 4. Plaintiff also named as
defendants the Department of Corrections and Community
Supervision ("DOCCS"), Greene Correctional Facility
Superintendent Brandon Smith ("Superintendent
Smith"), and sued defendant Beck in her individual and
official capacity. Compl. at 2. Plaintiff sought only money
damages as relief. Id. at 5.
March 2018 Order (1) construed the complaint as asserting
Eighth Amendment medical indifference claims against each of
the defendants; (2) dismissed with prejudice plaintiff's
claims against DOCCS and defendant Beck in her official
capacity; and (3) dismissed the remainder of plaintiff's
claims without prejudice because the complaint failed to
allege facts plausibly suggesting that any individual
defendant who participated in the events that occurred on or
about February 11, 2017, acted with deliberate indifference
to plaintiff's serious medical needs. See March
2018 Order at 6-13. Although plaintiff referenced the Fifth,
Ninth, and Fourteenth Amendments in his complaint, the March
2018 Order did not construe the complaint to have asserted a
cognizable claim under any of these amendments. See
Id. at 6 n.5.
has now submitted an amended complaint in which he re-asserts
Eighth Amendment claims against all of the same
defendants based on allegations that are virtually
identical to those made in the original complaint.
Compare Compl. with Am. Compl. The amended
complaint also asserts "due process, " "duty
of care, " and "conspiracy" claims against the
defendants, as well as a claim that defendants Smith, Beck,
and Cole are liable under a theory of respondeat superior.
See Am. Compl. at 5-7.
the amended complaint asserts Eighth Amendment claims against
the same defendants based on the same facts and circumstances
alleged in the complaint, and does not include any additional
non-conclusory allegations that would plausibly suggest that
any defendant acted with deliberate indifference to
Bell's medical needs on or about February 11, 2017,
plaintiff's Eighth Amendment claims are again dismissed
for the reasons set forth in the March 2018 Order.
the amended complaint fails to state a due process claim
against any of the defendants. To successfully state a claim
under Section 1983 for denial of due process, a plaintiff
must establish both the existence of a protected liberty or
property interest, and that he or she was deprived of that
interest without being afforded sufficient process.
Shakur v. Selsky, 391 F.3d 106, 118 (2d Cir. 2004)
(citing Kentucky Dep't of Corrs. v. Thompson,
490 U.S. 454, 460 (1989)). Due process generally requires
that the state afford individuals "some kind of
hearing" prior to depriving them of a liberty or
property interest. DiBlasio v. Novello, 344 F.3d
292, 302 (2d Cir. 2003).
amended complaint does not identify a liberty or property
interest that Bell was allegedly denied by any of the
defendants without being afforded sufficient process. In
addition, plaintiff's "duty of care" claim,
which sounds in negligence, "is insufficient as a matter
of law to state a claim under section 1983." Poe v.
Leonard, 282 F.3d 123, ...