Tucker v. Department of Corrections

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK THEODORE TUCKER, Plaintiff, 20-CV-9496 (LTS) -against- ORDER TO AMEND DEPARTMENT OF CORRECTIONS, et al., Defendants.

LAURA TAYLOR SWAIN, Chief United States District Judge: Plaintiff proceeds in this matter pro se. On November 30, 2020, the Court directed Plaintiff to file an application to proceed in forma pauperis (“IFP”) and prisoner authorization, or pay the filing fees. (ECF 3.) After Plaintiff failed to do either, on January 19, 2021, the Court dismissed the action without prejudice under 28 U.S.C. §§ 1914, 1915. (ECF 5, entered Jan. 20, 2021.) On February 3, 2021, the Court received Plaintiff’s second amended complaint and his notice of appeal (ECF 9-10); the following day, the Court received his IFP application and prisoner authorization (ECF 7-8). Five days later, on February 8, 2021, the Court transmitted the notice to the United States Court of Appeals for the Second Circuit.

On April 8, 2021, the Court liberally construed Plaintiff’s IFP application as including a motion under Fed. R. Civ. P. 60(b) to reopen the action, and granted the motion. (ECF 11.) On June 21, 2021, the Second Circuit dismissed the appeal. (ECF 12.) The Court granted Plaintiff’s IFP application on August 5, 2021. (ECF 13.) The case was reassigned to the undersigned on September 9, 2021.

The Court now grants Plaintiff 30 days’ leave to file a third amended complaint.

STANDARD OF REVIEW The Prison Litigation Reform Act requires that federal courts screen complaints brought by prisoners who seek relief against a governmental entity or an officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a). The Court must dismiss a prisoner’s in forma pauperis complaint, or any portion of the complaint, that is frivolous or malicious, 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. §§ 1915(e)(2)(B), 1915A(b); see Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007). The Court must also dismiss a complaint if the court lacks subject matter jurisdiction. See Fed. R. Civ. P. 12(h)(3).

While the law mandates dismissal on any of these grounds, the court is obliged to construe pro se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret them to raise the “strongest [claims] that they suggest,” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal quotation marks and citations omitted) (emphasis in original). But the “special solicitude” in pro se cases, id. at 475 (citation omitted), has its limits – to state a claim, pro se pleadings still must comply with Rule 8 of the Federal Rules of Civil Procedure, which requires a complaint to make a short and plain statement showing that the pleader is entitled to relief.

The Supreme Court has held that, under Rule 8, a complaint must include enough facts to state a claim for relief “that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible if the plaintiff pleads enough factual detail to allow the court to draw the inference that the defendant is liable for the alleged misconduct. In reviewing the complaint, the court must accept all well-pleaded factual allegations as true. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). But it does not have to accept as true “[t]hreadbare recitals of the elements of a cause of action,” which are essentially just legal conclusions. Twombly, 550 U.S. at 555. After separating legal conclusions from well-pleaded factual allegations, the court must determine whether those facts make it plausible – not merely possible – that the pleader is entitled to relief. Id. BACKGROUND Plaintiff, who is currently detained at the Vernon C. Bain Center (“VCBC”), brings this action under 42 U.S.C. § 1983, alleging that from September 23, 2020, to January 17, 2021, Defendants violated his federal constitutional rights by not protecting him from contracting COVID-19.1 Plaintiff names as defendants the Commissioner of the New York City Department of Correction (DOC), Cynthia Brann; “Health Director Commissioner” Patsy Yang; and Board of Correction Executive Director Margaret Egan. In the second amended complaint, he alleges that on September 23, 2020, Defendants recklessly or deliberately indifferent[ly] violated [his] 14th Amendment of Due Process Rights . . . [w]hen [they] ignored [his] *311 COMPLAINT . . . about ‘NOT’ hav[ing] 6ft social distancing; nor are they 50% inside gather capacity. ‘NOT’ cells. But where I[’]m housed is an ‘OPEN’ dormitory, with beds 3-4 inches behind one another without dividers; and beds 3-4 ft across from one another with 45-50 people which is 95%-100% MAX capacity, where all 45-50 are sharing sinks, toilets, and showers. (ECF 9, at 5.) He also alleges that three other prisoners inside his dormitory 2BA tested positive for COVID-19, which Plaintiff raised in his 311 complaint. Following the testing of the three prisoners and the subsequent 311 complaint, Plaintiff alleges, Defendants still failed to address the social distancing violations.

Plaintiff asserts that his injuries include his “fear[ing] for [his] life which is mentally [and] emotionally disturbing considering the Defendants demeanor to disregard and ignore [his] Equal Protection Right of Life & Liberty.” (Id. at 6.) He seeks injunctive relief and money damages.

According to public records maintained by the City of New York, Plaintiff was arrested on May 17, 2020, and is housed at the VCBC as a pretrial detainee. See NYC Department of Correction, Inmate Lookup Service, shorturl.at/eAGT8 (last visited 9/13/2021) DISCUSSION A. Deliberate Indifference Because Plaintiff was a pretrial detainee at the time of the events giving rise to his claims, his claims arise under the Due Process Clause of the Fourteenth Amendment. Bell v. Wolfish, 441 U.S. 520, 536 n.16 (1979); Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir. 2017). To state such a claim, Plaintiff must satisfy two elements: (1) an “objective” element, which requires a showing that the challenged conditions are sufficiently serious, and (2) a “mental” element, which requires a showing that the officer acted with at least deliberate indifference to the challenged conditions. Darnell, 849 F.3d at 29.

To satisfy the objective element, Plaintiff must allege facts suggesting “that the conditions, either alone or in combination, pose an unreasonable risk of serious damage to his health” or safety, which “includes the risk of serious damage to ‘physical and mental soundness.’” Id. at 30 (citing Walker v. Schult, 717 F.3d 119, 125 (2d Cir. 2013), and quoting LaReau v. MacDougall, 473 F.2d 974, 978 (2d Cir. 1972)). “[P]rison officials violate the Constitution when they deprive an inmate of his basic human needs such as food, clothing, medical care, and safe and sanitary living conditions.” Walker, 717 F.3d at 125 (internal quotation marks omitted).

To satisfy the second element, a pretrial detainee must allege “that the defendant-official acted intentionally to impose the alleged condition, or recklessly failed to act with reasonable care to mitigate the risk that the condition posed to the pretrial detainee even though the defendant-official knew, or should have known, that the condition posed an excessive risk to health or safety.” Id. at 35. The mere negligence of a correction official is not a basis for a claim of a federal constitutional violation under § 1983. See Daniels v. Williams, 474 U.S. 327, 335-36 (1986); Davidson v. Cannon, 474 U.S. 344, 348 (1986).

Because the second amended complaint does not contain sufficient facts to state a claim, the Court directs Plaintiff to file a third amended complaint. Plaintiff’s third amended pleading should allege the specific conditions within his housing unit that he contends violate his constitutional rights. For example, if Plaintiff asserts that Defendants failed to comply with capacity restrictions or other precautionary measures intended to prevent the spread of COVID- 19, he should allege any facts suggesting that such failures resulted in a substantial risk of serious harm to Plaintiff, and that Defendants were deliberately indifferent to the risk of serious harm to his safety or health. If Plaintiff names individuals as defendants, he must allege facts regarding their personal involvement in the alleged violations of his rights. Further, if Plaintiff is seeking release as a remedy, he must include individualized allegations regarding the basis for such relief.

LEAVE TO AMEND Plaintiff is granted leave to file a third amended complaint to detail his claims. First, Plaintiff must name as the defendant(s) in the caption2 and in the statement of claim those

In the “Statement of Claim” section of the amended complaint form, Plaintiff must provide a short and plain statement of the relevant facts supporting each claim against each defendant. If Plaintiff has an address for any named defendant, Plaintiff must provide it. Plaintiff should include all of the information in the amended complaint that Plaintiff wants the Court to consider in deciding whether the amended complaint states a claim for relief. That information should include: a) the names and titles of all relevant people; b) a description of all relevant events, including what each defendant did or failed to do, the approximate date and time of each event, and the general location where each event occurred; c) a description of the injuries Plaintiff suffered; and defendants, he should write “see attached list” on the first page of the Amended Complaint. Any defendants named in the caption must also be discussed in Plaintiff’s statement of claim.

Essentially, Plaintiff’s amended complaint should tell the Court: who violated his federally protected rights and how; when and where such violations occurred; and why Plaintiff is entitled to relief.

Because Plaintiff’s amended complaint will completely replace, not supplement, the original complaint, any facts or claims that Plaintiff wants to include from the original complaint must be repeated in the amended complaint.

CONCLUSION Plaintiff is granted 30 days’ leave to file a third amended complaint. The pleading should be submitted to this Court’s Pro Se Intake Unit, captioned as a “Third Amended Complaint,” and labelled with docket number 20-CV-9496 (LTS). A Third Amended Civil Rights Complaint form is attached to this order. No summons will issue at this time. If Plaintiff fails to comply within the time allowed, and cannot show good cause to excuse such failure, the complaint will be dismissed for failure to state a claim upon which relief may be granted.

The Clerk of Court is directed to mail a copy of this order to Plaintiff and note service on the docket.

The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith, and therefore IFP status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444–45 (1962).

SO ORDERED.

Dated: September 20, 2021 New York, New York /s/ Laura Taylor Swain LAURA TAYLOR SWAIN Chief United States District Judge

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK CV.

Write the full name of each plaintiff. (Include case number if one has been assigned) THIRD AMENDED against: COMPLAINT (Prisoner) Do you want a jury trial?

0mNd—MN L1Yes LINo Write the full name of each defendant. If you cannot fit the names of all of the defendants in the space provided, please write “see attached” in the space above and attach an additional sheet of paper with the full list of names. The names listed above must be identical to those contained in Section IV.

NOTICE The public can access electronic court files. For privacy and security reasons, papers filed with the court should therefore not contain: an individual’s full social security number or full birth date; the full name of a person known to be a minor; or a complete financial account number. A filing may include only: the last four digits of a social security number; the year of an individual’s birth; a minor’s initials; and the last four digits of a financial account number.

See Federal Rule of Civil Procedure 5.2.

Rev. 5/20/16 I. LEGAL BASIS FOR CLAIM State below the federal legal basis for your claim, if known. This form is designed primarily for prisoners challenging the constitutionality of their conditions of confinement; those claims are often brought under 42 U.S.C. § 1983 (against state, county, or municipal defendants) or ina “Bivens” action (against federal defendants).

L] Violation of my federal constitutional rights L] Other: Il. PLAINTIFF INFORMATION Each plaintiff must provide the following information. Attach additional pages if necessary.

First Name Middle Initial Last Name State any other names (or different forms of your name) you have ever used, including any name you have used in previously filing a lawsuit.

Prisoner ID # (if you have previously been in another agency’s custody, please specify each agency and the ID number (such as your DIN or NYSID) under which you were held) Current Place of Detention Institutional Address County, City State Zip Code II. PRISONER STATUS Indicate below whether you are a prisoner or other confined person: L] Pretrial detainee L] Civilly committed detainee L] Immigration detainee L] Convicted and sentenced prisoner L] Other: IV. DEFENDANT INFORMATION To the best of your ability, provide the following information for each defendant. If the correct information is not provided, it could delay or prevent service of the complaint on the defendant.

Make sure that the defendants listed below are identical to those listed in the caption. Attach additional pages as necessary.

Defendant 1: First Name Last Name Shield # Current Job Title (or other identifying information) Current Work Address County, City State Zip Code Defendant 2: First Name Last Name Shield # Current Job Title (or other identifying information) Current Work Address County, City State Zip Code Defendant 3: First Name Last Name Shield # Current Job Title (or other identifying information) Current Work Address County, City State Zip Code Defendant 4: First Name Last Name Shield # Current Job Title (or other identifying information) Current Work Address County, City State Zip Code V. STATEMENT OF CLAIM Place(s) of occurrence: Date(s) of occurrence: FACTS: State here briefly the FACTS that support your case. Describe what happened, how you were harmed, and how each defendant was personally involved in the alleged wrongful actions. Attach additional pages as necessary.

INJURIES: If you were injured as a result of these actions, describe your injuries and what medical treatment, if any, you required and received.

VI. RELIEF State briefly what money damages or other relief you want the court to order.

VII. PLAINTIFF’S CERTIFICATION AND WARNINGS By signing below, I certify to the best of my knowledge, information, and belief that: (1) the complaint is not being presented for an improper purpose (such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation); (2) the claims are supported by existing law or by a nonfrivolous argument to change existing law; (3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and (4) the complaint otherwise complies with the requirements of Federal Rule of Civil Procedure 11.

I understand that if I file three or more cases while I am a prisoner that are dismissed as frivolous, malicious, or for failure to state a claim, I may be denied in forma pauperis status in future cases.

I also understand that prisoners must exhaust administrative procedures before filing an action in federal court about prison conditions, 42 U.S.C. § 1997e(a), and that my case may be dismissed if I have not exhausted administrative remedies as required.

I agree to provide the Clerk's Office with any changes to my address. I understand that my failure to keep a current address on file with the Clerk's Office may result in the dismissal of my case.

Each Plaintiff must sign and date the complaint. Attach additional pages if necessary. If seeking to proceed without prepayment of fees, each plaintiff must also submit an IFP application.

Dated Plaintiff’s Signature First Name Middle Initial Last Name Prison Address County, City State Zip Code

Date on which I am delivering this complaint to prison authorities for mailing: