Perez v. Colon

• Decision Date: 11 October 2019
• Docket Number: 9:19-CV-0824 (BKS/TWD),9:19-CV-0722 (TJM/DJS)
• Parties: FELIPE PEREZ, Plaintiff, v. MR. COLON, MR. RUSSO, MR. WIGGINS, WATERS, MR. TILDEN, MR. BANKS, OFFICER JOHN DOE #1, OFFICER JOHN DOE #2, OFFICER JOHN DOE #3, OFFICER JOHN DOE #4, OFFICER JOHN DOE #5, OFFICER JOHN DOE #6, OFFICER JOHN DOE #7, OFFICER JOHN DOE #8, OFFICER JOHN DOE #9, OFFICER JOHN DOE #10, OFFICER JOHN DOE #11, NURSE PRACTITIONER JANE DOE REGISTERED NURSE JANE DOE, and DR. JOHN DOE, Defendants. FELIPE PEREZ, Plaintiff, v. MR. CARTER, SGT. JOHN DOE, MR. WATERS, OFFICER JOHN DOE #1, OFFICER JOHN DOE #2, OFFICER JOHN DOE #3, CHAPLAIN, and SERGEANT COLON, Defendants.
• Court: U.S. District Court — Northern District of New York

FELIPE PEREZ, Plaintiff, v. MR. COLON, MR. RUSSO, MR. WIGGINS, WATERS, MR. TILDEN, MR. BANKS,

OFFICER JOHN DOE #1, OFFICER JOHN DOE #2, OFFICER JOHN DOE #3,

OFFICER JOHN DOE #4, OFFICER JOHN DOE #5, OFFICER JOHN DOE #6,

OFFICER JOHN DOE #7, OFFICER JOHN DOE #8, OFFICER JOHN DOE #9,

OFFICER JOHN DOE #10, OFFICER JOHN DOE #11,

NURSE PRACTITIONER JANE DOE REGISTERED NURSE JANE DOE,

and DR. JOHN DOE, Defendants.

FELIPE PEREZ, Plaintiff, v. MR. CARTER, SGT. JOHN DOE, MR. WATERS,

OFFICER JOHN DOE #1, OFFICER JOHN DOE #2,

OFFICER JOHN DOE #3, CHAPLAIN, and SERGEANT COLON, Defendants.

9:19-CV-0722 (TJM/DJS)

9:19-CV-0824 (BKS/TWD)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

October 11, 2019

APPEARANCES:

FELIPE PEREZ

Plaintiff, pro se

17-A-5251

Sing Sing Correctional Facility

354 Hunter Street

Ossining, NY 10562

BRENDA K. SANNES United States District Judge

DECISION and ORDER

I. INTRODUCTION

On June 19, 2019, pro se plaintiff Felipe Perez ("Plaintiff") commenced a civil rights action in this Court asserting claims arising out of his confinement in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS") at Marcy Correctional Facility ("Marcy C.F."). Perez v. Donahue, et. al., No. 9:19-CV-0722 (TJM/DJS), Dkt. No. 1 ("Perez I"). In a Decision and Order filed on August 20, 2019 (the "August Order"), Plaintiff was granted leave to proceed in forma pauperis and the defendants were directed to respond to the following claims: (1) Eighth Amendment conditions-of-confinement claims against defendant Banks; (2) Eighth Amendment excessive force claims against defendants Colon, Russo, Wigins, Waters, Tilden, Banks, Officer Does #1 through #11 related to incidents that occurred on June 9, 2019; and (3) Fourteenth Am endment claims related to unwanted medical treatment against defendants Dr. Doe and Russo.¹ Perez I, Dkt. No. 7.

Presently before the Court for consideration is a second pro se Complaint filed byPlaintiff asserting claims arising out of his confinement at Marcy C.F. in June 2019. Perez v. Carter, et. al., No. 9:19-CV-0824 (BKS/TWD), Dkt. No. 1 ("Perez II"). Plaintiff has not paid the statutory filing fee and seeks leave to proceed in forma pauperis. Perez II, Dkt. No. 3 ("IFP Application").

II. IFP APPLICATION

"28 U.S.C. § 1915 permits an indigent litigant to commence an action in a federal court without prepayment of the filing fee that would ordinarily be charged." Cash v. Bernstein, No. 09-CV-1922, 2010 WL 5185047, at *1 (S.D.N.Y. Oct. 26, 2010).² "Although an indigent, incarcerated individual need not prepay the filing fee at the time of filing, he must subsequently pay the fee, to the extent he is able to do so, through periodic withdrawals from his inmate accounts." Id. (citing 28 U.S.C. § 1915(b) and Harris v. City of New York, 607 F.3d 18, 21 (2d Cir. 2010)).

Upon review of Plaintiff's IFP Application, the Court finds that he has demonstrated sufficient economic need. See 28 U.S.C. § 1915(a)(2). Plaintiff has also filed the inmate authorization form required in this District. Dkt. No. 4. Accordingly, the Court grants Plaintiff's IFP Application.

III. SUFFICIENCY OF THE COMPLAINT

A. Standard of Review

Having found that Plaintiff meets the financial criteria for commencing this action informa pauperis, and because Plaintiff seeks relief from an officer or employee of a governmental entity, the Court must consider the sufficiency of the allegations set forth in the Complaint 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 Section 1915A applies to all actions brought by prisoners against government officials even when plaintiff paid the filing fee).

Additionally, when reviewing a complaint, the 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 partythe 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, No. 95-CV-0063 (TJM), 162 F.R.D. 15, 16 (N.D.N.Y. June 23, 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 (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 (2009). While 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). Rule 8 "demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Id. 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 F. App'x 102, 104 (2d Cir. 2009).

B. Summary of the Complaint

The following facts are set forth as alleged by Plaintiff in his Complaint.

In June 2019, Plaintiff was confined in Housing Unit A2, Cell 39, in the Residential Mental Health Unit ("RMHU") at Marcy C.F. Compl. at 3. On June 9, 2019, on an Islamic holiday, between 3:00 p.m. and 11:00 p.m., Plaintiff was performing Islamic faith prayers inhis cell when he was "pepper sprayed without warning" by defendant Sergeant Colon ("Colon"). Id. at 6.

On June 17, 2019, between 7:00 a.m. and 3:00 p.m., Plaintiff attempted to speak with defendant Captain Carter ("Carter"), the Director of the RMHU. Compl. at 3. Carter told Plaintiff, "if you don't like what Sergeant Colon did to you and beat your ass with my officers suck it up cause [sic] the next time you'll die Perez!" Id. At or around the same time, Plaintiff told defendant Sergeant Doe ("Sgt. Doe") that he had "injuries" and requested permission to "see medical." Id. at 4. Sgt. Doe refused to allow Plaintiff to seek treatment. Id. During the same shift, defendant Waters approached Plaintiff's cell and questioned Plaintiff about his "blacked eye."⁴ Id. at 5. Waters told Plaintiff, "I'd do a better job at that" and stated "if I hit you, I would of [sic] broken your eye socket." Compl. at 5.

On June 17, 2019, between 3:00 p.m. and 11:00 p.m, Colon approached Plaintiff's cell and threatened Plaintiff with violence if he continued to ask for medical treatment. Compl. at 4. Colon also threatened to "spray 2 tanks of OC tear gas" in Plaintiff's cell if he refused to take his "medication." Id. at 5. Plaintiff was so "afraid" of Colon that he defecated himself. Id.

Plaintiff also claims that while he was confined to the RMHU, defendants Officer John Doe #1, Officer John Doe #2, and Officer John Doe #3 mocked Plaintiff and pointed to his black eye. Compl. at 6. Officer John Doe #2 told Plaintiff, "we might have to do the other eye so we can go out on workers compensation." Id.

Construed liberally,⁵ Plaintiff asserts the following: (1) First Amendment claim related to religious rights against Colon; (2) Eighth Amendment excessive force claim against Colon; (3) Eighth Amendment claims related to threats against Colon, Carter, Waters, and John Does #1 through #3; and (4) Eighth Amendment deliberate medical indifference claim against Sgt. Doe. See generally, Compl. Plaintiff seeks monetary damages. Id. at 8-12. For a complete statement of Plaintiff's claims and the facts he relies on in support of those claims, reference is made to the Complaint.

C. Nature of Action

Plaintiff seeks relief pursuant to 42 U.S.C. § 1983 ("Section 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." Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990)); see also Myers v. Wollowitz, No. 95-CV-0272, 1995 WL 236245, at *2 (N.D.N.Y. Apr. 10, 1995) (McAvoy, C.J.) (finding that "[Section] 1983 is the vehicle by which individuals may seek redress for alleged violations of their constitutional rights"). "Section 1983 itself creates no substantive rights, [but] . . . only a procedure for redress for the deprivation of rights established elsewhere." Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993).

The Court will construe the allegations in the Complaint with the utmost leniency....