Rasheen v. Adner

• Decision Date: 28 January 2019
• Docket Number: 9:18-CV-1420 (DNH/ATB)
• Citation: 356 F.Supp.3d 222
• Parties: Samuel RASHEEN, Raymond Toliver, Plaintiff, v. K. ADNER, Mail Postal Corr. Carrier, Cadwell, DSS, Brabart, DSP, Bucley, Ltd., and McAuliff, Supt., Defendants.
• Court: U.S. District Court — Northern District of New York

356 F.Supp.3d 222

Samuel RASHEEN, Raymond Toliver, Plaintiff,

v.K. ADNER, Mail Postal Corr. Carrier, Cadwell, DSS, Brabart, DSP, Bucley, Ltd., and McAuliff, Supt., Defendants.

9:18-CV-1420 (DNH/ATB)

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

Signed January 28, 2019

SAMUEL RASHEEN, RAYMOND TOLIVER, 09-B-2037, Plaintiff, pro se, Gouverneur Correctional Facility, Scotch Settlement Road, P.O. Box 480, Gouverneur, NY 13642

DECISION AND ORDER

DAVID N. HURD, United States District Judge

I. INTRODUCTION

Pro se plaintiff Samuel Rasheen Raymond Toliver ("Toliver" or "plaintiff") filed this complaint pursuant to 42 U.S.C. § 1983 (" Section 1983") asserting claims arising out of his confinement in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS"). Dkt. No. 1 ("Compl.").

In an Order filed on November 19, 2018, United States District Judge Richard J. Arcara of the Western District of New York transferred this action to the Northern District of New York ("Northern District"). Dkt. No. 3 ("Transfer Order").

Toliver, who is presently confined at Gouverneur Correctional Facility ("Gouverneur C.F."), has not paid the statutory filing fee and seeks leave to proceed in forma pauperis. Dkt. No. 2 ("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). "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) ). Section 1915(g) also prohibits a prisoner from proceeding in forma pauperis where, absent a showing of "imminent danger of serious physical injury," a prisoner has filed three or more actions that were subsequently dismissed as frivolous, malicious, or failing to state a claim upon which relief may be granted. See 28 U.S.C. § 1915(g).

From a review of Toliver's litigation history on the Federal Judiciary's Public Access to Court Electronic Records ("PACER") Service, see http://pacer.uspci.uscourts.gov, it does not appear that he had accumulated three strikes for purposes of 28 U.S.C. § 1915(g) as of the date this action was commenced. Further, a review of plaintiff's IFP Application confirms 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. See Dkt. No. 3. Accordingly, plaintiff's IFP Application is granted.

III. SUFFICIENCY OF THE COMPLAINT

A. Standard of Review

Having found that Toliver meets the financial criteria for commencing this action in forma pauperis, and because plaintiff seeks relief from 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) 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).¹

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, courts 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 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." Iqbal , 556 U.S. at 678, 129 S.Ct. 1937. "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 ). 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 incidents that form the foundation for the complaint occurred while Toliver was confined at Riverview Correctional Facility ("Riverview C.F."). See generally, Compl. The complaint includes exhibits, see compl. at 39-76, which will be considered to the extent that they are relevant to the incidents described in the pleading. See Cortec Indus., Inc. v. Sum Holding L.P. , 949 F.2d 42, 47 (2d Cir. 1991) (holding that complaint is deemed to include any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference).

On September 2, 2016, the Riverview C.F. Inmate Liaison Committee ("ILC") held a meeting. Compl. at 54. Plaintiff does not allege that he was present at the meeting. See Id. However, he does allege that during the meeting the committee noted that the population had "the most complaints" about dirty dishes, water pitchers without lids, spoiled food items, cold food, and undercooked food. Id.

On May 22, 2017, Toliver filed a grievance (RV-11910-17) that claimed an officer used profanity when plaintiff complained that the trays in the mess hall were dirty and wet. Compl. at 59. Defendant Superintendent B. McAuliff ("McAuliff") denied the grievance. Id. Plaintiff appealed, noting that "this has been an ongoing issue since Sept. 2, 2016." Id.

On May 30, 2017, Toliver attempted to mail a stamped, confidential complaint/petition (with exhibits) to the Federal Drug Administration ("FDA") and to the State Department of Health. Compl. at 6, 11, 48-53. In the May 26 complaint to the FDA, plaintiff alleged that he had been served contaminated, raw, and spoiled food at Riverview C.F. since September 2016. Id. at 11, 14, 48-53. With this complaint, plaintiff included a "sample" of food that the FDA could test. Id. Plaintiff's complaint pleaded with the FDA, asking "please don't inform them of the food sample," because he feared retaliation and intended to pursue legal action. Id. In the May 27 complaint to the State Department of Health, plaintiff provided a copy of the September 2016 meeting minutes from the ILC. Id.

On May 30, 2017, defendant K. Adner ("Adner") intercepted, opened, and read Toliver's mail without plaintiff's consent. Compl. at 6, 11-12, 25, 33. Thereafter, Adner confiscated, copied, and destroyed the mail and exhibits. Id. at 6, 8, 11, 13, 25, 27, 33. Plaintiff alleges that these actions were taken at the direction of defendants Deputy Superintendent of Programs Brabart ("Brabart"), Lieutenant Bucley ("Bucley"), Deputy Superintendent of Security Cadwell ("Cadwell"), and McAuliff. See Id.

On May 30, 2017, Adner issued a Tier III misbehavior report charging Toliver with contraband, smuggling, damage to property, and a violation of facility correspondence rules. Compl. at 8, 11, 19, 40, 42. A copy of this misbehavior report is annexed as an exhibit to the complaint, compl. at 39, but the copy is illegible. Plaintiff alleges this was also done at the direction of Brabart, Bucley, McAuliff, and Cadwell. Id. at 6, 8, 11, 13, 25, 27, 33.

On June 2, 2017, a Tier III disciplinary hearing commenced. Compl. at 40. A copy of the hearing disposition is annexed as an exhibit to the complaint, compl. at 41-46, but portions of the attachment are illegible. At the conclusion of the hearing, Toliver was sentence to sixty days in the Special Housing Unit ("SHU") with a corresponding loss of recreation, commissary, packages, and telephone privileges. Id. Plaintiff also lost six months of good time credit. Id. at 27. Plaintiff appealed the determination but, on June 29, 2017, A. Rodriguez, the Acting Director of the SHU, affirmed...