Opinion
No. 04 Civ. 4350 (SAS).
May 8, 2006
Bennie Gibson, Creedmoor Psychiatric Center, Queens Village, NY, Attorney for Plaintiff (Pro Se):
Michael E. Peeples, Assistant Attorney General of the State of New York, New York, NY, Attorney for State Defendants:
Laura Wong-Pan, Esq., County of Orange Department of Law Government Center, Goshen, NY, Attorney for Defendant County of Orange:
OPINION AND ORDER
I. INTRODUCTION
Bennie Gibson brings this action pursuant to section 1983 of Title 42 of the United States Code ("section 1983"), alleging that his civil rights were violated during his confinement at the Mid-Hudson Forensic Psychiatric Center ("Mid-Hudson"). Several defendants now move to dismiss the Complaint. The Commissioner of Mental Health ("Commissioner"), Howard Holanchock, Thomas Catizone, Peggi Hearly and Governor Pataki (collectively, "State defendants") move to dismiss pursuant to the Prison Litigation Reform Act (" PLRA"). The County of Orange brings a separate motion to dismiss pursuant to Federal Rules of Civil Procedure 8 and 12(b)(6), as well as the notice of claim requirement under section 50-e of the New York General Municipal Law. Certain State defendants — the Commissioner, Holanchock, Healy and Pataki — also move to dismiss on the grounds that Gibson failed to allege defendants' "personal involvement" in the alleged constitutional violation, and that the Eleventh Amendment bars his claims. Gibson has also filed a motion to reconsider and a motion for extension of time to serve defendants, which I consider at the end of this Opinion.
Pub.L. No. 104-134, 110 Stat. 1321 (1996).
II. BACKGROUND
A. Procedural History
In October 2001, Bennie Gibson was indicted on one count of Auto Stripping in the Second Degree and one count of Possession of Burglar's Tools. While the charges against him were pending, the court ordered Gibson committed as an "incapacitated" defendant pursuant to Article 730 of the New York Criminal Procedure Law ("CPL"). Article 730 allows a court to order a criminal defendant to be examined by psychiatrists to determine whether "as a result of mental disease or defect," the defendant "lacks capacity to understand the proceedings against him or to assist in his own defense." If the court finds that the defendant is incapacitated, "such court must issue a final or temporary order of observation committing him to the custody of the [New York State Commissioner of Mental Health] for care and treatment in an appropriate institution for a period not to exceed ninety days from the date of the order."
See 10/22/01 Certification of Affirmative Grand Jury Action, Ex. A to 1/24/06 Declaration of Assistant Attorney General of the State of New York Michael Peeples ("Peeples Decl.").
See generally People of the State of N.Y. v. Ben Gibson, No. 6326/2001 (N.Y.Sup.Ct. Nov. 10, 2005) ("11/10/05 Decision and Order"), Ex. C to Peeples Decl.
N.Y. Crim. Proc. Law § 730.10 (defining "incapacitated"). See generally id. §§ 730.10-730.70.
Id. § 730.40.
The court that handled Gibson's criminal case described the proceedings concerning his "capacity" as follows:
During the course of this case which commenced with this defendant's arrest on August 21, 2001, this defendant has been committed pursuant to CPL Article 730, as an incapacitated defendant, on nine occasions. He has asserted that there is a conspiracy against him involving the New York City Police Department in Queens and New York counties, the prosecutor, defense counsel, junk yard dealers, the Mafia and this Court in relation to his arrest in this case. . . . He has persistently lacked a rational understanding of the charges and proceedings against him and the capacity to assist counsel in his defense in a rational manner.
11/10/05 Decision and Order at 1.
Gibson maintains that he is not mentally ill, but because the court repeatedly found him to be incapacitated, his case never went to trial. On November 10, 2005, more than four years after Gibson's arrest, the prosecutor conceded that Gibson had "served the equivalent of two-thirds of the maximum sentence that could be imposed upon him if he was convicted." The indictment was thus dismissed pursuant to section 730.50(3) of the CPL.
See Second Amended Complaint ("Complaint") at 9.
Id.
See id at 2. Section 730.50(3) of the CPL states that "the first order of retention [for incapacitation] and all subsequent orders of retention must not exceed two-thirds of the authorized maximum term of imprisonment for the highest class felony charged in the indictment or for the highest class felony of which [defendant] was convicted."
On June 9, 2004, Gibson filed this action. At the time, he was committed to Mid-Hudson pursuant to the court order. On October 10, 2004, Chief Judge Mukasey issued an order and entered judgment denying Gibson leave to proceed in forma pauperis in accordance with the "three strikes provision" of the Prisoner Litigation Reform Act (" PLRA"), which states:
Gibson was confined to this facility continuously from May 6, 2004 to July 9, 2004 as an incapacitated defendant "in the custody of the New York State Commissioner of Mental Health." 1/19/06 Affidavit of Howard Holanchock, Executive Director of the Mid-Hudson Forensic Psychiatric Center, ¶ 3.
In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding [in forma pauperis] if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.
28 U.S.C. § 1915(g) (emphasis added).
Gibson appealed the order and judgment on December 15, 2004.
In a mandate issued on July 5, 2005, the Second Circuit Court of Appeals instructed the district court "to determine: (1) the nature of Appellant's detention at the Mid-Hudson Forensic Psychiatric Center; and (2) whether Appellant, by virtue of this detention, qualifies as a 'prisoner' under the Prisoner Litigation Reform Act." The mandate further instructed:
Bennie Gibson v. Town of New Hampton et al., No. 04 Civ. 6580 (2d Cir. Jul. 5, 2005) ("7/5/05 Mandate") at 1.
If the district court determines, on remand, that Appellant is a 'prisoner' under the PLRA, then it properly denied him leave to proceed in forma pauperis, pursuant to the 'three strikes provision' of the PLRA, as Appellant's amended complaint gave no indication that he was under 'imminent danger of serious physical injury.' The district court, however, should have specified that its dismissal of Appellant's complaint was without prejudice to the reopening of Appellant's action if Appellant paid the full filing fee.
Id. at 2 (quoting 28 U.S.C. § 1915(g)) (citations omitted).
In accordance with the Court of Appeal's mandate, Judge Mukasey issued an order vacating the October 12, 2004 order of dismissal. The case was then assigned to my docket on September 28, 2005.
In this order, Judge Mukasey did not address whether Gibson should be considered a prisoner under the PLRA.
B. Gibson's Allegations
The following allegations, drawn from Gibson's submissions, are presumed to be true for purposes of defendants' motions to dismiss. In January or February of 2003, while Gibson was a patient at Mid-Hudson, two Security Hospital Treatment Assistants violently assaulted him. Several staff members were present during the beating, and refused to intervene. The assault resulted in injuries including a sore back, neck, chest, and sides, "cut and bruised eyes swollen shut," and lacerations on the face; in addition, Gibson "could barely eat because of [a] swollen jaw." Following this incident, Gibson was "forcibly medicated by staff by needle" and then "made to sit in chair for nine days."
See Complaint at 7. Throughout this Opinion, I quote directly from Gibson's submissions to avoid misconstruing his meaning. The Complaint states: "[M]arch then grabbed Gibson from behind by dredlocks pushed his head down and knees Gibson in the face while Catizone held Gibsons arms Gibson was then punched in the head, eyes, stomach, chest, kicked, stomped head into floor by both Catizone and March simunetaneously . . . for about five minutes as both took turns in the action and other staff wacthed [sic]." Id.
See id. at 7, 9.
Id. at 8.
Id. at 7, 8.
Although an investigation of this attack occurred a few days later and several witnesses testified on Gibson's behalf, Gibson was not permitted to see the results of the inquiry. He then began to complain of the abuse, writing and making calls to the Office of Mental Health, the Inspector General, the State Attorney, the County of Orange, and the Town of New Hampton. Gibson has suffered retaliatory abuse as a result of this advocacy: his legal work was thrown in the toilet and urinated on by staff, he was threatened and denied privileges, false accusations were lodged against him, and his mail and personal belongings were searched and damaged.
See id. at 4, 8, 9.
See id. at 8.
See id. at 9.
III. LEGAL STANDARDS
A. Prison Litigation Reform Act
State defendants move to dismiss this action based on the "three strikes" rule of the PLRA. The PLRA defines prisoner as "any person incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms and conditions of parole, probation, pretrial release, or diversionary program."
See Memorandum of Law in Support of Motion to Dismiss ("State Def. Mem.") at 6-7.
Federal courts have examined the PLRA's definition of prisoner in various circumstances. Appellate courts have held, for example, that the definition does not include: a civil detainee, a person adjudicated not guilty by reason of insanity, or a person who challenges the terms of prison confinement after she has completed her sentence. On the other hand, courts have determined that the PLRA does apply to a prisoner who filed a suit during his confinement and thereafter was released from prison.
See, e.g., Michau v. Charleston County, S.C., 434 F.3d 725, 727-28 (4th Cir. 2006) (civil detainee not a "prisoner" under the PLRA); Perkins v. Hedricks, 340 F.3d 582, 583 (8th Cir. 2003) (same); Troville v. Kenz, 303 F.3d 1256, 1260 (11th Cir. 2002) (PLRA does not apply to detainee civilly committed pending determination of sexually violent predator status); Kolocotronis v. Reddy, 247 F.3d 726, 728 (8th Cir. 2001) (person held on civil commitment following verdict of not guilty by reason of insanity is not a "prisoner" under the PLRA); Page v. Torrey, 201 F.3d 1136, 1139-40 (9th Cir. 2000) (person detained civilly for non-punitive purposes following completion of criminal sentence not a "prisoner" within meaning of PLRA); Greig v. Goord, 169 F.3d 165, 167 (2d Cir. 1999) (former prisoner not required to comply with the PLRA).
See, e.g., Cox v. Mayer, 332 F.3d 422, 425 (6th Cir. 2003); Ahmed v. Dragovich, 297 F.3d 201, 210 (3d Cir. 2002); Dixon v. Page, 291 F.3d 485, 488-89 (7th Cir. 2002).
B. Rule 12(b)(6)
"A court may not dismiss an action" pursuant to Rule 12(b)(6) "'unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" At the motion to dismiss stage, the issue "'is not whether a plaintiff is likely to prevail ultimately, but whether the claimant is entitled to offer evidence to support the claims.'"
Leibowitz v. Cornell Univ., ___ F.3d ___, 2006 WL 1046212, at *3 (2d Cir. Apr. 21, 2006) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).
Phelps v. Kapnolas, 308 F.3d 180, 184-85 (2d Cir. 2002) (quoting Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir. 1998)). Accord In re Initial Public Offering Sec. Litig., 241 F. Supp. 2d 281, 322-24 (S.D.N.Y. 2003).
The task of the court in ruling on a Rule 12(b)(6) motion is "merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof." When deciding a motion to dismiss, courts must accept all factual allegations in the complaint as true, and draw all reasonable inferences in plaintiff's favor. Although the plaintiff's allegations are taken as true, the claim may still fail as a matter of law if it appears beyond doubt that the plaintiff can prove no set of facts in support of its claim which would entitle it to relief, or if the claim is not legally feasible. Accordingly, a claim can only be dismissed if "'no relief could be granted under any set of facts that could be proved consistent with the allegations.'"
Eternity Global Master Fund Ltd. v. Morgan Guar. Trust Co. of N.Y., 375 F.3d 168, 176 (2d Cir. 2004) (quotation marks and citation omitted).
See Ontario Pub. Serv. Employees Union Pension Trust Fund v. Nortel Networks Corp., 369 F.3d 27, 30 (2d Cir. 2004) (citation omitted).
See Official Comm. of Unsecured Creditors of Color Tile, Inc. v. Coopers Lybrand, L.L.P., 322 F.3d 147, 158 (2d Cir. 2003); Stamelman v. Fleishman-Hillard, Inc., No. 02 Civ. 8318, 2003 WL 21782645, at *2 (S.D.N.Y. Jul. 31, 2003).
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 513 (2002) (quoting Hishon v. King Spaulding, 467 U.S. 69, 73 (1984)).
In addition, because "most pro se plaintiffs lack familiarity with the formalities of pleading requirements, [courts] must construe pro se complaints liberally, applying a more flexible standard to evaluate their sufficiency." Finally, courts must remain "mindful of the care exercised in this Circuit to avoid hastily dismissing complaints of civil rights violations."
Lerman v. Board of Elections in the City of N.Y., 232 F.3d 135, 140 (2d Cir. 2000) (citing Hughes v. Rose, 449 U.S. 5, 9-10 (1980) and Haines v. Kerner, 404 U.S. 519, 520-21 (1972)).
Gregory v. Daly, 243 F.3d 687, 691 (2d Cir. 2001).
C. Rules 8 and 12(e)
Rule 8(a) of the Federal Rules of Civil Procedure requires that the plaintiff provide "a short and plain statement of the claim showing that the pleader is entitled to relief." A complaint "need not 'set out in detail the facts upon which' the claim is based" or plead the legal theory or elements underlying the claim. "Indeed, the Rules set forth a pleading standard under which a plaintiff is required only to give a defendant fair notice of what the claim is and the grounds upon which it rests." Fair notice is "'that which will enable the adverse party to answer and prepare for trial, allow the application of res judicata, and identify the nature of the case so that it may be assigned the proper form of trial.'" This notice pleading standard "relies on liberal discovery rules and summary judgment motions to define disputed facts and issues and to dispose of unmeritorious claims." If a party contends that a pleading nonetheless "is so vague or ambiguous that [it] cannot reasonably be required to frame a responsive pleading" the party is not left without a remedy, as the party "may move for a more definite statement" before responding to the pleading.
Twombly v. Bell Atlantic Corp., 425 F.3d 99, 107 (2d Cir. 2005) (quoting Conley, 355 U.S. at 47).
See Phillips v. Girdich, 408 F.3d 124, 130 (2d Cir. 2005).
Leibowitz, 2006 WL 1046212, at *3.
Wynder v. McMahon, 360 F.3d 73, 79 (2d Cir. 2004) (quoting Simmons v. Abruzzo, 49 F.3d 83, 86 (2d Cir. 1995)).
Swierkiewicz, 534 U.S. at 514. Accord Conley, 355 U.S. at 48 ("The Federal Rules reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits.").
Fed.R.Civ.P. 12(e). Accord Swierkiewicz, 534 U.S. at 514 ("If a pleading fails to specify the allegations in a manner that provides sufficient notice, a defendant can move for a more definite statement under Rule 12(e) before responding."); Phillips, 408 F.3d at 128.
D. Municipal Liability in a Section 1983 Action
Section 1983 creates no substantive rights, but does provide a "mechanism for enforcing a right or benefit established elsewhere." In order to state a cause of action under section 1983, a plaintiff must show that the conduct complained of was committed by a person or entity acting under color of state law, and that the conduct deprived a person of rights, privileges, or immunities secured by the Constitution.
Morris-Hayes v. Board of Educ. of Chester Union Free Sch. Dist., 423 F.3d 153, 159 (2d Cir. 2005) (citing Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985)).
See Palmieri v. Lynch, 392 F.3d 73, 78 (2d Cir. 2004).
The Supreme Court does not interpret section 1983 to impose unbridled liability on municipalities: "[T]he language of [section] 1983, read against the background of the legislative history, compels the conclusion that Congress did not intend municipalities to be held liable unless action pursuant to official municipal policy of some nature caused a constitutional tort." As subsequently reaffirmed and explained by the Supreme Court, municipalities such as the County of Orange may only be held liable when the municipality itself deprives an individual of a constitutional right. Thus, in order for an individual deprived of a constitutional right to have recourse against a municipality under section 1983, he must show that he was harmed by a municipal "policy" or "custom."
Monell v. New York City Dep't of Soc. Servs., 436 U.S. 658, 691 (1978).
Id. at 690-91. Accord Board of County Comm'rs v. Brown, 520 U.S. 397, 403-04 (1997); Pembaur v. City of Cincinnati, 475 U.S. 469, 479-81 (1986).
A municipality "may not be held liable on a theory of respondeat superior." Moreover, courts apply "'rigorous standards of culpability and causation'" to ensure that the municipality is not held liable solely for the actions of its employees. Thus, a custom or policy cannot be shown by pointing to a single instance of unconstitutional conduct by a mere employee of the state.
Jeffes v. Barnes, 208 F.3d 49, 56 (2d Cir. 2000). Accord Monell, 436 U.S. at 691.
Jeffes, 208 F.3d at 61 (quoting Brown, 520 U.S. at 405).
See Tuttle, 471 U.S. at 831 (Brennan, J., concurring in part and concurring in the judgment) (stating that "[t]o infer the existence of a city policy from the isolated misconduct of a single, low-level officer, and then to hold the city liable on the basis of that policy, would amount to permitting precisely the theory of strict respondeat superior liability rejected in Monell").
In determining municipal liability, it is necessary to conduct a separate inquiry into whether there exists a "policy" or "custom." The Supreme Court has identified at least two situations that constitute a municipal policy: (1) where there is an officially promulgated policy as that term is generally understood (i.e., a formal act by the municipality's governing body), and (2) where a single act is taken by a municipal employee who, as a matter of state law, has final policymaking authority in the area in which the action was taken.
See Monell, 436 U.S. at 690.
See Pembaur, 475 U.S. at 480-81. See also Walton v. Safir, 122 F. Supp. 2d 466, 477 (S.D.N.Y. 2001) (stating that "the act of an official with final decision-making authority, if it wrongfully causes the plaintiff's constitutional injury, may be treated as the official act of the municipality") (citing City of St. Louis v. Praprotnik, 485 U.S. 112, 123 (1988)).
A municipal "custom," on the other hand, need not receive formal approval by the appropriate decision-maker — "an act performed pursuant to a 'custom' that has not been formally approved by an appropriate decisionmaker may fairly subject a municipality to liability on the theory that the relevant practice is so widespread as to have the force of law." To succeed on this theory, plaintiff must prove the existence of a practice that is permanent. "[O]ne method of showing custom is to demonstrate that the custom or practice is so well settled and widespread that the policymaking officials of the municipality can be said to have either actual or constructive knowledge of it yet did nothing to end the practice."
Brown, 520 U.S. at 404. Accord Tuttle, 471 U.S. at 823-24.
See Praprotnik, 485 U.S. at 127.
Silva v. Worden, 130 F.3d 26, 31 (1st Cir. 1997) (quotation marks and citation omitted).
When either a "policy" or "custom" has been proven, section 1983 imposes liability because the City in its capacity as a municipality — as opposed to mere employees of the City — harmed the plaintiff for exercising a constitutionally protected right.
See, e.g., Brown, 520 U.S. at 417 ("The 'official policy' requirement was intended to distinguish acts of the municipality from acts of employees of the municipality, and thereby make clear that municipal liability is limited to action for which the municipality is actually responsible.") (quoting Pembaur, 475 U.S. at 479-80); Pembaur, 475 U.S. at 480 (" Monell reasoned that recovery from a municipality is limited to acts that are, properly speaking, acts 'of the municipality' — that is, acts which the municipality has officially sanctioned or ordered.").
E. Municipal Liability and the Notice of Claim Requirement
Section 50-i of the New York General Municipal Law provides that no tort action shall be prosecuted or maintained against a municipality or any of its officers, agents, or employees unless: (1) a notice of claim has been served against the City; (2) the City has refused adjustment or payment of the claim; and (3) the action is commenced within one year and ninety days after the event upon which the claim is based occurred. The notice of claim is required to be filed "within ninety days after the claim arises."
See N.Y. Gen. Mun. Law § 50-i.
Id. § 50-e.
New York's notice of claim requirements are not applicable to section 1983 claims brought in federal court. However, the requirements do apply to state law personal injury claims that are brought in federal court as related to section 1983 cases. Federal courts do not have jurisdiction to hear complaints from plaintiffs who have failed to comply with the notice of claim requirement, or to grant permission to file a late notice.
See Day v. Moscow, 955 F.2d 807, 814 (2d Cir. 1992). Accord Horvath v. Daniel, No. 04 Civ. 9207, 2006 WL 47683, at *3 (S.D.N.Y. Jan. 9, 2006) ("Courts in this Circuit have repeatedly held that the notice of claim requirement is not applicable to federal claims under section 1983.").
See, e.g., Shakur v. McGrath, 517 F.2d 983, 985 (2d Cir. 1975) (state malpractice claims that were added to a section 1983 complaint nine months after the complaint was filed did not satisfy state notice of claim requirements and were dismissed). See also Horvath v. Daniel, No. 04 Civ. 9207, 2006 WL 950404, at *3 (S.D.N.Y. Apr. 7, 2006) ("Although we retain jurisdiction over plaintiff's [section] 1983 action, we lack authority to permit plaintiff to file a late Notice of Claim and therefore dismiss plaintiff's state law claims without prejudice.").
See Jewel v. City of New York, No. 94 Civ. 5454, 1995 WL 86432, at *1-2 (S.D.N.Y. Mar. 1, 1995); Brown v. Metro. Transp. Auth., 717 F. Supp. 257, 260 (S.D.N.Y. 1989) ("Until the state legislature amends § 50-e(7) to include federal trial courts, we have no choice but to dismiss for lack of jurisdiction plaintiff's application to file a late notice of claim or to have his notice of claim deemed timely filed.").
F. Personal Involvement
"It is well settled in this Circuit that personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under [section] 1983." Broad, conclusory allegations that a high-ranking defendant was informed of an incident are insufficient to impose liability. In Colon v. Coughlin, the Second Circuit identified five ways in which the personal involvement of a defendant may be shown:
Johnson v. Newburgh Enlarged Sch. Dist., 239 F.3d 246, 254 (2d Cir. 2001).
See Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir. 2003).
(1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that unconstitutional acts were occurring.
58 F.3d 865, 873 (2d Cir. 1995). Accord Back v. Hastings On Hudson Union Free Sch. Dist., 365 F.3d 107, 127 (2d Cir. 2004).
Employers are not liable under section 1983 for the constitutional torts of their employees unless the plaintiff proves that "'action pursuant to official . . . policy of some nature caused a constitutional tort.'"
Rojas v. Alexander's Dept. Store, 924 F.2d 406, 408 (2d Cir. 1990) (quoting Monell, 436 U.S. at 691). Accord Coon v. Town of Springfield, Vt., 404 F.3d 683, 687 (2d Cir. 2005) ("As the Supreme Court discussed in Monell, Congress chose not to impose a federal law of respondeat superior, in part because it believed the imposition of an obligation on municipalities to keep the peace would raise constitutional problems.").
G. Eleventh Amendment
The Eleventh Amendment bars suits in federal court by citizens against a state absent a waiver of immunity and consent to suit by the state or abrogation of constitutional immunity by Congress. Section 1983 does not abrogate a state's Eleventh Amendment immunity from suit in federal court, and New York has not waived its immunity. Thus, citizens of New York State may not sue the State in federal court under section 1983. State employees in their official capacities are also constitutionally immune from suit in federal court, because such a lawsuit is no different than a suit against the State itself. There is an exception, however, when a plaintiff alleging a violation of federal law sues a state employee for prospective injunctive relief against the employee's future official conduct.
See Puerto Rico Aqueduct Sewer Auth. v. Metcalf Eddy, Inc., 506 U.S. 139, 142-47 (1993).
See, e.g., Dube v. State Univ. of N.Y., 900 F.2d 587, 594 (2d Cir. 1990).
See Trotman v. Palisades Interstate Park Comm'n, 557 F.2d 35, 38-40 (2d Cir. 1977); Bryant v. New York State Dept. of Corr. Serv. Albany, 146 F. Supp. 2d 422, 425-26 (S.D.N.Y. 2001).
See Ying Jing Gan v. City of New York, 996 F.2d 522, 529 (2d Cir. 1993) (citing Kentucky v. Graham, 473 U.S. 159, 166-67 (1985)).
See Pennhurst State Sch. Hosp. v. Halderman, 465 U.S. 89, 102-03 (1984).
IV. DISCUSSION
A. Prison Litigation Reform Act
Gibson does not contest the accuracy of the relevant dates or procedural events in his criminal case. Gibson had criminal charges pending against him between October 2001, the date the indictment was issued, and November 2005 when it was dismissed. Gibson filed the first complaint in the instant action seventeen months before his indictment was dismissed, on June 9, 2004. State defendants argue that at that time, he fit within the plain language of the PLRA's definition of prisoner — he was a person detained in a facility who was accused of violations of criminal law. Thus, they conclude that his lawsuit should be dismissed in accordance with the July 5, 2005 mandate.
The most pertinent argument that Gibson makes is a challenge to the authenticity of State defendants' exhibits:
"Plaintiff furthertively asks the court to inspect document submitted by State Attorney (concerning the instant offense which brought plaintiff to Mid Hudson Psychiatric) Generals Office for authenticity and whether they conform to the rules of criminal procedure law of McKinneys Criminal Procedure Law of New York concerning i.e. committment orders to Mid Hudson are not signed by a Judge, Indictment are not stamped or filed with court nor is Grand Jury foremans signature on indictment furthermore order granting right to file a prosecutor information or grand jury Indictment makes no sence in accordance to CPL 1.20 a indictment is voted by 16 to 23 representatives — a information is filed by district attorney [sic]"
"Response Notice of Motion Pursuant Fed.R.Civ P12 Opposition To Dismissal "inre" Attorney General Micheal Pepples esq. [sic]" ("Pl. Mem.") at 2. However, I find no reason to question the authenticity of the "Certificate of Affirmative Grand Jury Action" that was signed by Assistant District Attorney Matthew Bassiur, or of the other legal documents submitted by the New York State Attorney General's Office.
The relevant date for the application of the "three strikes" rule is the day that the plaintiff "bring[s] a civil action." 28 U.S.C. § 1915(g).
See State Def. Mem. at 6-7. See also Kalinowski v. Bond, 358 F.3d 978, 979 (7th Cir. 2004) ("For a person held on unresolved criminal charges, however, there is no difficulty at all" in determining that he fits within the PLRA's definition of "prisoner."); Page, 201 F.3d at 1139 (holding that the "natural reading" of the PLRA's text "is that, to fall within the definition of 'prisoner,' the individual in question must be currently detained as a result of accusation, conviction, or sentence for a criminal offense.").
To dismiss Gibson's Complaint on PLRA grounds would constitute a victory of form over substance. In accordance with the Court of Appeals mandate, State defendants request only that the case be dismissed "without prejudice to reopening upon payment of the full filing fee." At this point, Gibson is no longer a prisoner under the case law and is no longer required to comply with the PLRA — thus, if his petition were dismissed now, he would not be required to pay a filing fee. Gibson would simply have to refile the same case as a non-prisoner in forma pauperis. Dismissal of this action would therefore cause a delay in the proceedings without fulfilling any of the goals of the PLRA. In addition, to dismiss this action and require Gibson to refile it could constitute a substantial hardship for this plaintiff, given that many of his submissions have been in the form of handwritten letters.
State Def. Mem. at 7-8. Accord 7/5/05 Mandate at 2 (citing Ortiz v. McBride, 380 F.3d 649, 658 n. 7 (2d Cir. 2004) and Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002)).
See, e.g., Page, 201 F.3d at 1139-40; Greig, 169 F.3d at 167.
Gibson's Second Amended Complaint, filed with the Court's permission on November 21, 2006, was filed and entered when he was no longer a prisoner under the PLRA. In the interests of justice and judicial economy, I hereby accept his Second Amended Complaint as properly filed in forma pauperis and deem it to be a new filing. There is no reason to dismiss this action under the PLRA.
B. Section 1983 Claim Against the County of Orange
The County of Orange argues that the Court should consider Gibson's Complaint "'so confused, ambiguous, vague, or otherwise unintelligible that its true substance, if any, is well disguised.'" But Gibson offers more than vague allegations of abuse and retaliation — he describes several specific incidents that would be constitutional violations if proven. Although certain sentences in the Complaint are difficult to understand, the central allegations are themselves intelligible. Given the deference due a pro se plaintiff, Gibson's submissions constitute a short and plain statement of the alleged constitutional violations.
Orange County Memorandum of Law ("County Mem.") at 3 (quoting Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988)).
The County of Orange also argues that Gibson's Complaint fails to state a claim upon which relief may be granted as against the County. The only allegation that Gibson makes that specifically mentions the County of Orange states: "County of orange towen odf new hampton are constantly called or written to by patients I myself on abuse at Mid Hudson no investigation has been commenced by these agencies although several local newspaper articles talked of violence [sic]." The County claims that this allegation is "incoherent," and also argues that "[t]here is no allegation or proof that the County of Orange owns, operates, supervises or in any way oversees operations at the Mid-Hudson Psychiatric Center. Therefore, the County could not have been responsible for events" at Mid-Hudson.
See County Mem. at 5-7.
Complaint at 8-9.
County Mem. at 4-5.
Accepting all factual allegations in the Complaint as true, and drawing all reasonable inferences in Gibson's favor, it is clear that he has alleged a Monell claim against the County of Orange. If it is true that the County of Orange received "constant" complaints of patient abuse at Mid Hudson and consistently failed to respond in any way, such a practice could be considered a custom so widespread as to have the force of law. Although the failure to respond to complaints of constitutional violations may not be a formally approved policy, it could be a practice so well settled that municipal officials have ignored either actual or constructive knowledge of the custom.
C. Notice of Claim Requirement
The County of Orange argues that any "cause of action founded upon tort law" against the County must be dismissed because Gibson failed to file a notice of claim as required by the New York General Municipal Law. At this point in the litigation, it is not clear whether Gibson intends to argue that there was tortious conduct by the County. If Gibson is indeed bringing state law personal injury claims against the County, and further discovery does not demonstrate that he timely filed a notice of claim, such claims will not be permitted to proceed under the clear terms of the statute.
Id. at 8.
E. Personal Involvement
The Commissioner of Mental Health, Holanchock, Healy and Governor Pataki argue that they should be dismissed from this lawsuit because Gibson has not alleged their personal involvement in the claimed constitutional violations. Because these individuals were not present at the time of the alleged incidents, Gibson cannot and does not allege their direct participation. Yet, he does allege personal involvement in other acceptable ways with respect to three of the defendants.
See State Def. Mem. at 8-9.
Gibson has sufficiently alleged personal involvement of the two defendants who work at Mid-Hudson, Healy and Holanchock. Gibson claims that Healy, "[a]s unit chief failed intervene to stop the amount of abuse against patients by staff treatment assistants or punish the wrong doers [sic]." Executive Director Holanchock was also alleged to have exhibited deliberate indifference to the rights of inmates. Gibson claims that Holanchock "knows of abuse" and hires investigators that are former employees or members of the same union as Mid-Hudson employees, contributing to "routine coverups of physical violence against patients." State defendants point out that Holanchock did not become Executive Director at Mid-Hudson until several months after the alleged attack on Gibson. But this argument ignores the many allegations of harassment, abuse and retaliation in Gibson's Complaint that post-date the physical attack in early 2003. In sum, Gibson alleges that Healy and Holanchock promulgated policies that resulted in unconstitutional practices, failed to develop procedures to provide for the safety of Mid-Hudson residents, and failed to remedy the wrong after being informed of violations.
Pl. Mem. at 10. Because Gibson is proceeding pro se, the factual allegations raised in his responses to the motions to dismiss will also be treated as part of his Complaint. See Gill v. Mooney, 824 F.2d 192, 195 (2d Cir. 1987) (considering pro se plaintiff's affidavit in opposition to defendant's motion to dismiss in reviewing district court's dismissal of claim); Donahue v. United States Dep't of Justice, 751 F. Supp. 45, 49 (S.D.N.Y. 1990) ("The policy reasons favoring liberal construction of pro se pleadings warrant the Court's consideration of the allegations contained in plaintiff's memorandum of law, at least where those allegations are consistent with the allegations in the complaint.").
Complaint at 8.
See State Def. Mem. at 9 n. 5.
Reading Gibson's allegations in the light most favorable to him, the Commissioner of Mental Health could also be found liable to Gibson for failing to remedy constitutional violations after being informed that they were being committed. Gibson alleges that the Commissioner consistently failed to respond in any way to Gibson's numerous calls and letters complaining about abuse, and alleges that the Commissioner's office has a "[c]ontinuing policy of failure to investigate, remedy or punish the wrongdoer." Gibson thus sufficiently alleges that the Commissioner "created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom" or that he "exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that unconstitutional acts were occurring."
"Plaintiff states he has contact Commissioner of Mental Health on several occasion by phone at least once a wk or every2½ since and before incident. And wrote 5 letter which the desk secretary state were never recieved. To any extent when messages were left on phone no notice of acknowledgement were sent. Other patients sent or called in messages (wrote letters) no answer in return [sic]" Pl. Mem. at 13.
Id.
Colon, 58 F.3d at 873.
According to Gibson, Governor Pataki "failed to oversee the enforcement of State enacted laws" and his office also failed to respond to complaints by patients at Mid-Hudson. Gibson additionally claims that "Pataki has failed to set up a official grievance numerical system where disciplinary actions are recorded, filed, and placed before a impartial administrator [sic]." These allegations do not sufficiently plead personal involvement — it is clear that Gibson is attempting to sue Pataki as a representative of the State rather than because of his own actions. Therefore, the claims against Governor Pataki must be dismissed for failure to sufficiently allege personal involvement.
Pl. Mem. at 8-9.
Id. at 9.
The actual personal involvement of the Commissioner, Holanchock, and Healy is a matter to be further explored in discovery. Based on a review of the pleadings, Gibson may proceed on his claims against these defendants.
F. Eleventh Amendment
State defendants maintain that Commissioner, Holanchock, and Healy "are constitutionally immune from suit in federal court for damages." There are three problems with defendants' argument. First, Gibson makes it clear that he intends to sue each of these individuals in their official and individual capacities. Second, given the discussion above, Gibson has alleged that these defendants were personally involved in the alleged constitutional violations. For the time being, then, it may be assumed that these three individuals were not named as defendants based upon their supervisory status but rather because of their own actions or inactions. Third, Gibson appears to seek injunctive relief in addition to monetary compensation. Accordingly, defendants' reliance on the Eleventh Amendment as a ground for dismissal is misplaced.
Id. at 10-11.
See Complaint at 1.
See id. at 12.
G. Gibson's Motions
Gibson has sent voluminous letters to the Court, including four recent submissions that were styled as motions. Two of these submissions were actually opposition papers to the motions to dismiss, and may thus be closed by the Clerk of the Court. Gibson referred to another of his submissions as a "motion to reconsider" a temporary stay in discovery pending the outcome of the motions to dismiss. While the temporary stay was justified, it is now lifted given the resolution of the motions to dismiss. Thus, Gibson's motion to reconsider may be closed.
Another letter styled as a motion, dated April 17, 2006, requests an extension of time to serve several defendants, in addition to copies of the Second Amended Complaint and the service and summons forms. Under Federal Rule of Civil Procedure 4(m), an action is generally dismissed without prejudice as to defendants who are not served within 120 days after the filing of the complaint. However, a court may extend the time for service "for an appropriate period" if a plaintiff "shows good cause for the failure" to effect timely service.
In his April 17 submission, Gibson describes a good faith effort to locate and serve the remaining defendants in this case. He represents that he had no means of obtaining the addresses of defendants who retired or were fired from Mid-Hudson except through interrogatory responses from State defendants, and he also mentions administrative difficulties that have hampered his ability to effect timely service. Given what appear to be good faith efforts to prosecute his case in a timely manner, and good cause for the delay, I hereby grant the motion for an extension of time to serve defendants in this case. The time for Gibson to serve any remaining defendants is extended until June 30, 2006.
See 4/17/06 Submission from Bennie Gibson to the Court at 3-4.
See id.
Any future submissions must be served on all named defendants in addition to sending them to the Court. The Pro Se Office may reject for filing any documents that were not served on all defendants and/or do not clearly so indicate.
V. CONCLUSION
For the foregoing reasons, the County of Orange's motion to dismiss any state tort law claims against it for failure to file a timely notice of claim is granted. The State defendants' motion to dismiss claims against Governor Pataki is also granted. The remaining portions of defendants' motions to dismiss are denied, and Gibson's motion to extend time for service is granted. The Clerk of the Court is directed to close all motions currently pending in this case [Docket Nos. 25, 33, 39, 40, 50, 52].
SO ORDERED.