Burroughs v. Petrone

• Decision Date: 15 October 2015
• Docket Number: No. 9:15–CV–0818 DNH/ATB.,9:15–CV–0818 DNH/ATB.
• Citation: 138 F.Supp.3d 182
• Parties: Lorcen BURROUGHS, Plaintiff, v. Derrick PETRONE, C.O., Coxsackie Correctional Facility, Ada Perez, Superintendent, Downstate Correctional Facility, K. Watson, ORC and Foil Officer, Downstate Correctional Facility, John Doe # 1, Transport Officer, Downstate Correctional Facility, Daniel Martuscello, Superintendent, Coxsackie Correctional Facility, Roger A. Murphy, Captain, Coxsackie Correctional Facility, Raymond J. Shanley, Captain, Coxsackie Correctional Facility, Christopher L. Miller, Deputy Superintendent of Security, Coxsackie Correctional Facility, Kenneth Baldwin, Lieutenant, Coxsackie Correctional Facility, Christopher McDermott, Lieutenant, Coxsackie Correctional Facility, James Weeks, Lieutenant, Coxsackie Correctional Facility, James W. Huff, Lieutenant, Coxsackie Correctional Facility, Abel Melendez, Sergeant, Coxsackie Correctional Facility, Todd Looman, Sergeant, Coxsackie Correctional Facility, Paul R. Morris, Sergeant, Coxsackie Correctional Facility, Edward S. Killar, Inmate Grievance Supervisor, Coxsackie Correctional Facility, J. Lewis, ORC/FOIL Officer, Coxsackie Correctional Facility, Scott E. Mellet, Correction Officer, Coxsackie Correctional Facility, Julio Saez, Correction Officer, Coxsackie Correctional Facility, Jeffrey Baldwin, Correction Officer, Coxsackie Correctional Facility, Heath Doty, Correction Officer, Coxsackie Correctional Facility, Robert Mielewski, Correction Officer, Coxsackie Correctional Facility, Thomas Carroll, Correction Officer, Coxsackie Correctional Facility, Todd J. Grisenthwaite, Correction Officer, Coxsackie Correctional Facility, James A. Adalain, Correction Officer, Coxsackie Correctional Facility, Michael J. Fosmire, Correction Officer, Coxsackie Correctional Facility, James A. Pasquariello, Correction Officer, Coxsackie Correctional Facility, Christina M. King, Correction Officer, Coxsackie Correctional Facility, Shane M. King, Correction Officer, Coxsackie Correctional Facility, Michelle P. Bogusz, Correction Officer, Coxsackie Correctional Facility, James G. McKeown, Correction Officer, Coxsackie Correctional Facility, Elvis Rios, Correction Officer, Coxsackie Correctional Facility, Gregory J. Biewala, Correction Officer, Coxsackie Correctional Facility, Sharee J. Lewis, Correction Officer, Coxsackie Correctional Facility, Neil Crystal, Offender Rehab Coordinator, Coxsackie Correctional Facility, Robert J. Davies, Correction Officer, Coxsackie Correctional Facility, Peter A. Stetz, Correction Officer, Coxsackie Correctional Facility, Megan M. McGlynn, Offender Rehab Coordinator, Coxsackie Correctional Facility, Jackie A. Lewis, Offender Rehab Coordinator and FOIL Officer, Coxsackie Correctional Facility, Jon S. Miller, Clinical Physician, Coxsackie Correctional Facility, Barbara A. Morano, Nurse, Coxsackie Correctional Facility, Mary M. Koemel, Senior Mail Clerk, Coxsackie Correctional Facility, Charles E. Craft, Correction Officer, Coxsackie Correctional Facility, Wayne H. Stevenson, Correction Officer, Coxsackie Correctional Facility, Rachael P. Hauser, Correction Officer, Coxsackie Correctional Facility, Cecil G. Muschett, Correction Officer and Law Library Supervisor, Coxsackie Correctional Facility, Muhammed S. Ali, Chaplain, Coxsackie Correctional Facility, Eric Gutwein, Commissioner Hearing Officer, Coxsackie Correctional Facility, John Doe # 2, Inspector General, NYS DOCCS, John Doe # 3, Inspector General, NYS DOCCS, John Doe # 4, Inspector General, NYS DOCCS, Brian Fischer, Commissioner of NYS DOCCS, Joseph Bellnier, Deputy Commissioner, NYS DOCCS, Sandra Dolce, Superintendent, Orleans Correctional Facility, Connie Barberio, Mail Clerk, Orleans Correctional Facility, Christopher Ellison, Offender Rehab Coordinator, Orleans Correctional Facility, Brian Fitts, Supervisor of Inmate Grievance, Orleans Correctional Facility, Steven Szymanski, Correction Officer, Orleans Correctional Facility, Anne Advus, Sergeant, Orleans Correctional Facility, Scott Bauer, Correction Officer, Orleans Correctional Facility, David Wiater, Offender Rehab Coordinator and FOIL Officer, Orleans Correctional Facility, Dean Lugo, Sergeant, Orleans Correctional Facility, Lori Lutz, Sergeant, Orleans Correctional Facility, Nathan Dunkle, Correction Officer, Orleans Correctional Facility, David Eberth, Correction Officer, Orleans Correctional Facility, Randy Hurt, Sergeant, Orleans Correctional Facility, Karen Bielak, Institutional Steward, Orleans Correctional Facility, M. Hubbard, Captain, Orleans Correctional Facility, Donald Mosier, Correction Officer, Orleans Correctional Facility, and T. Tracz, Deputy Superintendent of Programs, Orleans Correctional Facility, Defendants.
• Court: U.S. District Court — Northern District of New York

138 F.Supp.3d 182

Lorcen BURROUGHS, Plaintiff,

v.Derrick PETRONE, C.O., Coxsackie Correctional Facility, Ada Perez, Superintendent, Downstate Correctional Facility, K. Watson, ORC and Foil Officer, Downstate Correctional Facility, John Doe # 1, Transport Officer, Downstate Correctional Facility, Daniel Martuscello, Superintendent, Coxsackie Correctional Facility, Roger A. Murphy, Captain, Coxsackie Correctional Facility, Raymond J. Shanley, Captain, Coxsackie Correctional Facility, Christopher L. Miller, Deputy Superintendent of Security, Coxsackie Correctional Facility, Kenneth Baldwin, Lieutenant, Coxsackie Correctional Facility, Christopher McDermott, Lieutenant, Coxsackie Correctional Facility, James Weeks, Lieutenant, Coxsackie Correctional Facility, James W. Huff, Lieutenant, Coxsackie Correctional Facility, Abel Melendez, Sergeant, Coxsackie Correctional Facility, Todd Looman, Sergeant, Coxsackie Correctional Facility, Paul R. Morris, Sergeant, Coxsackie Correctional Facility, Edward S. Killar, Inmate Grievance Supervisor, Coxsackie Correctional Facility, J. Lewis, ORC/FOIL Officer, Coxsackie Correctional Facility, Scott E. Mellet, Correction Officer, Coxsackie Correctional Facility, Julio Saez, Correction Officer, Coxsackie Correctional Facility, Jeffrey Baldwin, Correction Officer, Coxsackie Correctional Facility, Heath Doty, Correction Officer, Coxsackie Correctional Facility, Robert Mielewski, Correction Officer, Coxsackie Correctional Facility, Thomas Carroll, Correction Officer, Coxsackie Correctional Facility, Todd J. Grisenthwaite, Correction Officer, Coxsackie Correctional Facility, James A. Adalain, Correction Officer, Coxsackie Correctional Facility, Michael J. Fosmire, Correction Officer, Coxsackie Correctional Facility, James A. Pasquariello, Correction Officer, Coxsackie Correctional Facility, Christina M. King, Correction Officer, Coxsackie Correctional Facility, Shane M. King, Correction Officer, Coxsackie Correctional Facility, Michelle P. Bogusz, Correction Officer, Coxsackie Correctional Facility, James G. McKeown, Correction Officer, Coxsackie Correctional Facility, Elvis Rios, Correction Officer, Coxsackie Correctional Facility, Gregory J. Biewala, Correction Officer, Coxsackie Correctional Facility, Sharee J. Lewis, Correction Officer, Coxsackie Correctional Facility, Neil Crystal, Offender Rehab Coordinator, Coxsackie Correctional Facility, Robert J. Davies, Correction Officer, Coxsackie Correctional Facility, Peter A. Stetz, Correction Officer, Coxsackie Correctional Facility, Megan M. McGlynn, Offender Rehab Coordinator, Coxsackie Correctional Facility, Jackie A. Lewis, Offender Rehab Coordinator and FOIL Officer, Coxsackie Correctional Facility, Jon S. Miller, Clinical Physician, Coxsackie Correctional Facility, Barbara A. Morano, Nurse, Coxsackie Correctional Facility, Mary M. Koemel, Senior Mail Clerk, Coxsackie Correctional Facility, Charles E. Craft, Correction Officer, Coxsackie Correctional Facility, Wayne H. Stevenson, Correction Officer, Coxsackie Correctional Facility, Rachael P. Hauser, Correction Officer, Coxsackie Correctional Facility, Cecil G. Muschett, Correction Officer and Law Library Supervisor, Coxsackie Correctional Facility, Muhammed S. Ali, Chaplain, Coxsackie Correctional Facility, Eric Gutwein, Commissioner Hearing Officer, Coxsackie Correctional Facility, John Doe # 2, Inspector General, NYS DOCCS, John Doe # 3, Inspector General, NYS DOCCS, John Doe # 4, Inspector General, NYS DOCCS, Brian Fischer, Commissioner of NYS DOCCS, Joseph Bellnier, Deputy Commissioner, NYS DOCCS, Sandra Dolce, Superintendent, Orleans Correctional Facility, Connie Barberio, Mail Clerk, Orleans Correctional Facility, Christopher Ellison, Offender Rehab Coordinator, Orleans Correctional Facility, Brian Fitts, Supervisor of Inmate Grievance, Orleans Correctional Facility, Steven Szymanski, Correction Officer, Orleans Correctional Facility, Anne Advus, Sergeant, Orleans Correctional Facility, Scott Bauer, Correction Officer, Orleans Correctional Facility, David Wiater, Offender Rehab Coordinator and FOIL Officer, Orleans Correctional Facility, Dean Lugo, Sergeant, Orleans Correctional Facility, Lori Lutz, Sergeant, Orleans Correctional Facility, Nathan Dunkle, Correction Officer, Orleans Correctional Facility, David Eberth, Correction Officer, Orleans Correctional Facility, Randy Hurt, Sergeant, Orleans Correctional Facility, Karen Bielak, Institutional Steward, Orleans Correctional Facility, M. Hubbard, Captain, Orleans Correctional Facility, Donald Mosier, Correction Officer, Orleans Correctional Facility, and T. Tracz, Deputy Superintendent of Programs, Orleans Correctional Facility, Defendants.

No. 9:15–CV–0818 DNH/ATB.

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

Signed Oct. 15, 2015.

Lorcen Burroughs, Comstock, NY, pro se.

DECISION and ORDER

DAVID N. HURD

, District Judge.

I. INTRODUCTION

The Clerk has sent for review a pro se civil rights complaint filed by plaintiff Lorcen Burroughs ("Burroughs" or "plaintiff") pursuant to 42 U.S.C. § 1983

("Section 1983"). Dkt. No. 1 ("Compl."). Plaintiff, who has not paid the statutory filing fee, seeks leave to proceed in forma pauperis.¹ Dkt. No. 7 ("IFP Application").

On August 5, 2015, Burroughs filed a motion seeking to replace his original complaint with a new complaint. See Dkt. No. 8. Plaintiff's motion is granted. Accordingly, the complaint filed on August 5, 2015 shall be deemed the operative pleading.²

II. IFP APPLICATION

Upon review of Burroughs's IFP Application, plaintiff has demonstrated sufficient economic need and filed the inmate authorization form required in the Northern District of New York. Accordingly, plaintiff's IFP application (Dkt. No. 7) is granted.

III. INITIAL SCREENING

Having found that Burroughs meets the financial criteria for commencing this action in forma pauperis, and because he seeks relief from an officer or employee of a governmental entity, the sufficiency of the allegations set forth in his complaint must be considered in light of 28 U.S.C. §§ 1915(e)

and 1915A.

Section 1915(e) of Title 28 of the United States Code

directs that, when a plaintiff seeks to proceed in forma pauperis, "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).³

Similarly, 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 monetary relief from a defendant who is immune from such relief." 28 U.S.C. § 1915A(b)

; see also Carr v. Dvorin, 171 F.3d 115, 116 (2d Cir.1999) (per curiam) (noting that § 1915A applies to all actions brought by prisoners against government officials even when plaintiff paid the filing fee).

Additionally, when reviewing a complaint, a court may also look to the Federal Rules of Civil Procedure. Rule 8 of the Federal Rules of Civil Procedure

provides that a pleading which sets forth a claim for relief shall contain, inter alia, "a short and plain statement of the claim showing that the pleader is entitled to relief." See Fed.R.Civ.P. 8(a)(2).

The purpose of Rule 8

"is to give fair notice of the claim being asserted so as to permit the adverse party the opportunity to file a responsive answer, prepare an adequate defense and determine whether the doctrine of res judicata is applicable." Hudson v. Artuz, No. 95 CIV. 4768, 1998 WL 832708, at *1 (S.D.N.Y. Nov. 30, 1998) (quoting Powell v. Marine Midland Bank, 162 F.R.D. 15, 16 (N.D.N.Y.1995) (other citations omitted)).

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). While a 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 ).

In other words, Rule 8

"demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft, 556 U.S. at 678, 129 S.Ct. 1937. Thus, a pleading that contains only allegations which "are so vague as to fail to give the defendants adequate notice of the claims against them" is subject to dismissal. Sheehy v. Brown, 335 Fed.Appx. 102, 104 (2d Cir.2009).

IV. SUMMARY OF THE COMPLAINT

Burroughs brings this action pursuant to 42 U.S.C. § 1983

, which establishes a cause of action for " ‘the deprivation of any rights, privileges, or immunities secured by the Constitution and laws' of the United States." German v. Fed. Home Loan Mortgage Corp., 885 F.Supp. 537, 573 (S.D.N.Y.1995) (citing Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508, 110 S.Ct. 2510, 110 L.Ed.2d 455 (1990) (quoting 42 U.S.C. § 1983 )) (footnote omitted); see also Myers v. Wollowitz, No. 6:95–CV–0272 (TJM/RWS), 1995 WL 236245, at *2 (N.D.N.Y. Apr. 10, 1995) (stating that § 1983"is the vehicle by which individuals may seek redress for alleged violations of their constitutional rights." (citation omitted)). "...