Banks v. Annucci

• Decision Date: 30 September 2014
• Docket Number: No. 9:13–CV–1500 DNH/ATB.,9:13–CV–1500 DNH/ATB.
• Citation: 48 F.Supp.3d 394
• Parties: Edwin BANKS ; Mary Banks; Angel Dublin; and Tawanda Starkey, Plaintiffs, v. Anthony ANNUCCI, Acting Commissioner of DOCCS; D. Rock, Superintendent, Upstate Correctional Facility; Thomas Beilein, Chairman, State Commission of Correction; Sgt. Eddy, Corrections Sergeant, Upstate Correctional Facility; Sgt. Gilmore, Corrections Sergeant, Upstate Correctional Facility; E. Marshall, Correction Officer, Upstate Correctional Facility; M. Sevey, Correction Officer, Upstate Correctional Facility; B. Page, Correction Officer, Upstate Correctional Facility; Hide, Correction Officer, Upstate Correctional Facility; Fairchild, Nurse, Upstate Correctional Facility; Lordi, Nurse, Upstate Correctional Facility; Vijay Kuma Madalaywama, Doctor, Upstate Correctional Facility; Marinelli, Psychiatrist, Office of Mental Health, Upstate Correctional Facility; S. Woodward, Supervisor, Inmate Grievance Program, Upstate Correctional Facility; Karen Bellamy, Director, Inmate Grievance Program, DOCCS; Carl Koenigsmann, Chief Medical Officer, DOCCS; Pickering, Offender Rehabilitation Coordinator, Upstate Correctional Facility; Vern Fonda, Inspector General, DOCCS; John Doe 1, Unidentified Union of the Officers at Upstate Correctional Facility; John Doe 2, Unidentified employer/agent for the medical staff at Upstate Correctional Facility; John Doe 3, Unidentified Deputy Superintendent of Security, Upstate Correctional Facility; and John Doe 4, Unidentified Corrections Officer with the rank of Lieutenant at Upstate Correctional Facility, Defendants.
• Court: U.S. District Court — Northern District of New York

48 F.Supp.3d 394

Edwin BANKS ; Mary Banks; Angel Dublin; and Tawanda Starkey, Plaintiffs
v.
Anthony ANNUCCI, Acting Commissioner of DOCCS; D. Rock, Superintendent, Upstate Correctional Facility; Thomas Beilein, Chairman, State Commission of Correction; Sgt. Eddy, Corrections Sergeant, Upstate Correctional Facility; Sgt. Gilmore, Corrections Sergeant, Upstate Correctional Facility; E. Marshall, Correction Officer, Upstate Correctional Facility; M. Sevey, Correction Officer, Upstate Correctional Facility; B. Page, Correction Officer, Upstate Correctional Facility; Hide, Correction Officer, Upstate Correctional Facility; Fairchild, Nurse, Upstate Correctional Facility; Lordi, Nurse, Upstate Correctional Facility; Vijay Kuma Madalaywama, Doctor, Upstate Correctional Facility; Marinelli, Psychiatrist, Office of Mental Health, Upstate Correctional Facility; S. Woodward, Supervisor, Inmate Grievance Program, Upstate Correctional Facility; Karen Bellamy, Director, Inmate Grievance Program, DOCCS; Carl Koenigsmann, Chief Medical Officer, DOCCS; Pickering, Offender Rehabilitation Coordinator, Upstate Correctional Facility; Vern Fonda, Inspector General, DOCCS; John Doe 1, Unidentified Union of the Officers at Upstate Correctional Facility; John Doe 2, Unidentified employer/agent for the medical staff at Upstate Correctional Facility; John Doe 3, Unidentified Deputy Superintendent of Security, Upstate Correctional Facility; and John Doe 4, Unidentified Corrections Officer with the rank of Lieutenant at Upstate Correctional Facility, Defendants.

No. 9:13–CV–1500 DNH/ATB.

United States District Court, N.D. New York.

Signed Sept. 30, 2014.

48 F.Supp.3d 399

Edwin Banks, Clinton Correctional Facility, Dannemora, NY, Plaintiff, pro se.

Mary Banks, Plaintiff, pro se.

Angel Dublin, Plaintiff, pro se.

Tawanda Starkey, Plaintiff, pro se.

DECISION AND ORDER

DAVID N. HURD, District Judge.

I. INTRODUCTION

The Clerk has sent for review a civil rights complaint filed by pro se plaintiffs Edwin Banks, Mary Banks, Angel Dublin, and Tawanda Stark pursuant to 42 U.S.C. § 1983 (“Section 1983 ”). Dkt. No. 1 (“Compl.”). None of the plaintiffs paid the filing fee required for this action. Plaintiff Edwin Banks, who is currently incarcerated at Upstate Correctional Facility (“Upstate C.F.”), has submitted an application to proceed in forma pauperis, Dkt. No. 18 (“IFP Application”), and motions requesting appointment of counsel (Dkt. Nos. 3, 16), preliminary injunctive relief (Dkt. Nos. 4, 35), and an investigation into plaintiff's conditions of confinement (Dkt. No. 38).

II. Plaintiffs Mary Banks, Angel Dublin, and Tawanda Stark

Mary Banks is identified as the mother of Edwin Banks; Angel Dublin is Edwin Banks' sister; and Tawanda Starkey is identified as a friend of Edwin Banks. Compl. at 2. Mary Banks, Angel Dublin, and Tawanda Starkey (1) have not paid the statutory filing fee of $400.00 required for this action, nor have any of them submitted an IFP Application on their own behalf; and (2) none of the three women have signed the complaint.¹

48 F.Supp.3d 400

Accordingly, Mary Banks, Angel Dublin, and Tawanda Starkey will be dismissed as plaintiffs to this action and this action is considered brought only on behalf of plaintiff Edwin Banks.

III. Plaintiff Edwin Banks

Since all of the other plaintiffs will be dismissed, any further reference to “plaintiff” in this Decision and Order is a reference to plaintiff Edwin Banks only.

A. IFP Application

Upon review, it is found that plaintiff has submitted a completed, signed, and certified IFP Application (Dkt. No. 18) which demonstrates economic need. See 28 U.S.C. § 1915(a)(2). Accordingly, plaintiff Edwin Banks' IFP Application (Dkt. No. 18) will be granted.

B. Initial Screening

Having found that plaintiff meets the financial criteria for commencing this action in forma pauperis, and because plaintiff seeks relief from a governmental entity or an officer or employee of a governmental entity, the sufficiency of the allegations set forth in the complaint must be considered in light of 28 U.S.C. §§ 1915(e) and 1915A. Section 1915(e) directs that, when a plaintiff seeks to proceed in forma pauperis, “(2) ... the court shall dismiss the case at any time if the court determines that—... (B) the action ... (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).² Thus, even if a plaintiff meets the financial criteria to commence an action in forma pauperis, it is the court's responsibility to determine whether the plaintiff may properly maintain the complaint that he filed in this District before the court may permit the plaintiff to proceed with this action in forma pauperis. See id.

Likewise, under 28 U.S.C. § 1915A, a court must review any “complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity” and must “identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint ... is frivolous, malicious, or fails to state a claim upon which relief may be granted; or ... seeks

48 F.Supp.3d 401

monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915A ; see also Carr v. Dvorin, 171 F.3d 115, 116 (2d Cir.1999) (per curiam) (Section 1915A applies to all actions brought by prisoners against government officials even when plaintiff paid the filing fee); Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir.2007) (stating that both sections 1915 and 1915A are available to evaluate prisoner pro se complaints).

Although the court has the duty to show liberality toward pro se litigants, see Nance v. Kelly, 912 F.2d 605, 606 (2d Cir.1990) (per curiam), and should exercise “extreme caution ... in ordering sua sponte dismissal of a pro se complaint before the adverse party has been served and both parties (but particularly the plaintiff) have had an opportunity to respond, ...” Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir.1983) (internal citations omitted), the court also has a responsibility to determine whether the plaintiff may properly maintain the complaint that he filed in this District before permitting him to proceed.³

A court should not dismiss a complaint if the plaintiff has stated “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citation omitted). Although the court should construe the factual allegations in the light most favorable to the plaintiff, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Id. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555, 127 S.Ct. 1955 ). Thus, “where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the pleader is entitled to relief.’ ” Id. at 679, 129 S.Ct. 1937 (quoting Fed.R.Civ.P. 8(a)(2) ).

C. Summary of the Complaint

Plaintiff asserts allegations of wrongdoing arising out of his confinement at Upstate C.F. See generally Compl. Plaintiff names twenty-two defendants and seeks relief against them in their individual and official capacities. Id. at 2–5. In addition to numerous New York State Department of Corrections and Community Supervision (“DOCCS”) employees and officials, plaintiff names Thomas Beilein, the Chairman of the New York State Commission of Correction; John Doe 1, the Union of Officers at Upstate C.F.; and John Doe 2, the Employer/Agent for the Medical Staff at Upstate C.F. Id. The facts are set forth as alleged by plaintiff in his complaint.

Plaintiff was transferred to Upstate C.F. on April 26, 2013. Compl. at 6. Upon his arrival, he was harassed and threatened by defendant Eddy, who among other things, told correctional officers that plaintiff had assault on staff charges against him, thereby

48 F.Supp.3d 402

singling plaintiff out so that “he would be harassed by the officers.” Id. Defendants Marshall and Sevey harassed plaintiff while passing out food trays. Id. at 23. On October 13, 2013, defendant Marshall threatened that he was “going to whip all the grievances” out of plaintiff. Id. at 25. When plaintiff refused to go to a medical appointment because of this threat, defendants Marshall and Sevey told plaintiff that he was “scared to come out of...