Opinion
19-CV-10153 (CM)
01-10-2020
JOHN HENRY, Plaintiff, v. P.O. JOHN DOE, et al., Defendants.
ORDER TO AMEND :
Plaintiff, currently incarcerated at Fishkill Correctional Facility, brings this pro se action under 42 U.S.C. § 1983, alleging that Defendants violated his constitutional rights. By order dated October 8, 2019, the United States District Court for the Western District of New York granted Plaintiff's request to proceed without prepayment of fees, that is, in forma pauperis. Plaintiff has also moved for injunctive relief and for appointment of pro bono counsel. For the reasons set forth below, the Court grants Plaintiff leave to file an amended complaint within sixty days of the date of this order.
Prisoners are not exempt from paying the full filing fee even when they have been granted permission to proceed in forma pauperis. See 28 U.S.C. § 1915(b)(1).
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 filed this 81-page complaint in the United States District Court for the Western District of New York, alleging that his constitutional rights were violated at Ulster, Orleans, and Fishkill Correctional Facilities. See Henry v. Annucci, No. 19-CV-6280 (W.D.N.Y. filed Apr. 15, 2019). By order dated October 8, 2019, that court severed Plaintiff's claims arising at Fishkill Correctional Facility and transferred them to this District. Accordingly, this Court addresses only those claims arising at Fishkill. (ECF 1:19-CV-10153, 1 ¶¶ 227-263).
The court also severed and transferred claims to the United States District Court for the Northern District of New York. See Henry v. Annucci, No. 19-CV-1339 (N.D.N.Y. filed Oct. 30, 2019).
Plaintiff alleges that Defendants — Acting DOCCS Commissioner Anthony Annucci; Superintendent Leroy Fields; Inmate Grievance Program Supervisor Rims; Nurse Administrator John Doe; Dr. Davis; Dr. Ngbodi; FOIL Officer Hart; Correction Officer John Doe; and C.O. Jane Does 1 and 2 — denied him adequate and timely medical care, exposed him to freezing temperatures, denied him access to the law library, tampered with and delayed his legal mail; and failed to respond to his grievances and complaints.
A. Allegations About Inadequate and Delayed Medical Attention
Plaintiff asserts the following facts. On December 26, 2018, Plaintiff was forced to carry, without a cart, a 50-pound bag containing his possessions, and as a result he injured his shoulder. (ECF Doc. 1 ¶ 227.) On December 27, 2018, Dr. Davis told Plaintiff that their meeting was solely to discuss "medication procedures," and that Plaintiff would need to speak with Dr. Ngbodi about the "sharp pains in his shoulder" that were starting to effect his "normal daily activities."
On January 9, 2019, Plaintiff complained to Dr. Ngbodi of "random pain" in his chest, "frequent pain" in his back, shoulder, and abdomen, and difficulty walking "up and down six flights of stairs." Plaintiff told Dr. Ngbodi that he had been diagnosed with a urinary tract infection (UTI) at Orleans Correctional Facility, and that "this UTI was not properly treated due to 'crystals' still being present in Plaintiff's urine." Dr. Ngbodi told Plaintiff that she was "not concerned with what took place at [his] last facilities." Dr. Ngbodi told Plaintiff that she had received an e-mail about him from the "Central office." Plaintiff speculates that "unknown Central office members were making determinations of how to treat" him, "which thus far have been inadequate and below state and federal standards." Also, Plaintiff believes this is the reason Defendant Hart denied Plaintiff's Freedom of Information Law requests for "CMS Reports" and other documents.
On January 18, 2019, Plaintiff went to medical for "knee, back, abdominal, and testicle pain," and also for "a rash/lesions on arms, legs, and backside." Plaintiff was seen by Nurse Administrator John Doe who said that he "was not able to administer Plaintiff any treatment for these issues." (Id. ¶ 232.)
On January 28, 2019, Plaintiff again saw Dr. Ngbodi, who was "not receptive" to Plaintiff's continued complaints, although she did order a laboratory test and a physical therapy (PT) evaluation.
On February 8, 2019, Plaintiff received medication for the UTI, and on February 12, 2019, he was evaluated for PT. On February 27, 2019, Dr. Ngbodi did not "offer[]" Plaintiff "any treatment for any of his injuries," but she "did confirm" that the January 28, 2019 test showed that Plaintiff had a UTI. Dr. Ngbodi also prescribed medication for Plaintiff's high blood pressure," but Plaintiff had to wait two weeks to receive it, and he was without it entirely for four days.
On March 14, 2019, Plaintiff told Dr. Ngbodi that the medical staff had not complied with her February 27, 2019 order to check Plaintiff's blood pressure weekly. Dr. Ngbodi could not explain why Plaintiff had not yet seen a physical therapist. Plaintiff "experience[ed] sharp pains in his back and/or abdominal/pelvic area sometimes when he urinate[d]," but there was "no follow up to see if Plaintiff's UTI had cleared up."
The PT began on March 25, 2019, but the sessions consisted only of "a heating pad being placed on Plaintiff's shoulder for 15 minutes, then Plaintiff being shown different stretches." The PT did not address the "bone protruding from" Plaintiff's right shoulder, which in his opinion requires surgery, or his "chronic pain." In addition, Plaintiff did not receive PT for his back or his left shoulder, and he was supposed to have PT sessions three times per week, but Plaintiff was only "randomly placed on callouts these days." The physical therapist told Plaintiff that "Albany makes the list, I don't know who is on the schedule until I come in to work."
B. Other Allegations
Beginning on December 30, 2018, Plaintiff was exposed to freezing temperatures because of a broken window and drafty walls. A maintenance worker looked at the window on January 8, 2019, but was unable to resolve the problem. Plaintiff was not moved to a new housing area until February 3, 2019. Plaintiff filed a grievance about the "deplorable living conditions." (Id. ¶¶ 229, 230, 235.)
On January 23, 2019, C.O. Jane Doe "made" Plaintiff wait five minutes before he was "eventually allowed" to report to a '"mandatory' call out" to review his medical records. Because Plaintiff was five minutes late, through no fault of his own, C.O. John Doe would not allow Plaintiff to look at the records that day. Plaintiff "was finally allowed" to see the records on February 21, 2019, but he was "unable to understand any of the reports, evaluations, etc. that were contained in these records." (Id. ¶¶ 232-238.)
On March 10, 2019, Plaintiff filed a "formal complaint" with Commissioner Annucci about his grievances being denied or ignored and his appeals not being processed. (Id. ¶ 241.) Annucci "oversee[s]" procedures governing grievances, appeals, and grants of parole, but he apparently did not respond to Plaintiff's complaint.
On March 28, 2019, the kitchen and recreation area in Plaintiff's housing unit were "closed" because of a fight among other prisoners. Although the prisoners involved in that incident were placed in SHU, Plaintiff and other prisoners were for an unspecified period of time allowed out for limited purposes only. Defendants "were motivated by retaliation," and Plaintiff should not have been housed at Fishkill in the first place because it is a "mental health and sex offender facility," and the prisoners there are subjected to "harsher conditions of imprisonment."
On April 3, 2019, C.O. Jane Doe denied Plaintiff access to the law library, cursed at him, and threatened to assault him and have him put in SHU. (Id. ¶ 245.)
In 2018, Plaintiff filed an Article 78 proceeding against Annucci in New York State Court, Orleans County, challenging the denial of parole and his FOIL requests, and seeking decisions on his grievances. The government's response to the petition was dated May 13, 2019, and Plaintiff received it on May 17, 2019. (ECF Doc. 3-1 at 2.) Plaintiff submitted "his reply in opposition to" the government's filing on May 24, 2019. But, unbeknownst to Plaintiff, the court had dismissed his petition as "without merit" on May 17, 2019, the same day that Plaintiff had received the government's answer. Plaintiff did not receive a copy of the court's May 17, 2019 dismissal order until May 28, 2019, although it was postmarked May 20, 2019. According to Plaintiff, Defendants deliberately delayed Plaintiff's mail by eight days, which "resulted in Plaintiff'[s] reply not being accepted by the" court.
On May 6, 2019, Plaintiff was told that he had received legal mail, but when he went to retrieve it, prison officials could not locate it. Plaintiff submitted a written complaint to Superintendent Fields, who did not respond. When Plaintiff received the legal mail three days later, he saw that it had been opened outside of his presence, in violation of DOCCS directive #4421.
It is not clear whether this legal mail was related to the Article 78 proceeding, or some other matter.
The facts about Plaintiff's legal mail are taken from the motion for a "temporary restraining order and preliminary and permanent injunction," and are not alleged in the complaint. (ECF 1:19-CV-10153, 3.) There are other allegations in the motion about the alleged denial of medical care, falsified misbehavior reports, and unfair disciplinary hearings. Some of those allegations involve individuals who are not named as defendants in this action.
Plaintiff seeks immediate medical treatment for his health conditions, an order directing that Defendants cease interfering with his legal mail, and money damages.
DISCUSSION
A. Claims Under Section 1983
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege both that: (1) a right secured by the Constitution or laws of the United States was violated, and (2) the right was violated by a person acting under the color of state law, or a "state actor." West v. Atkins, 487 U.S. 42, 48-49 (1988).
In addition, a § 1983 plaintiff must allege facts showing the defendants' direct and personal involvement in the alleged constitutional deprivation. See Spavone v. N.Y. State Dep't of Corr. Serv., 719 F.3d 127, 135 (2d Cir. 2013) (citing Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995)). A defendant may not be held liable under § 1983 solely because that defendant employs or supervises a person who violated the plaintiff's rights. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) ("Government officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior."). An individual defendant can be personally involved in a § 1983 violation if:
(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 [the plaintiff] by failing to act on information indicating that unconstitutional acts were occurring.Colon, 58 F.3d at 873.
"Although the Supreme Court's decision in [Ashcroft v. Iqbal, 556 U.S. 662 (2009)] may have heightened the requirements for showing a supervisor's personal involvement with respect to certain constitutional violations," the Second Circuit has not yet examined that issue. Grullon v. City of New Haven, 720 F.3d 133, 139 (2d Cir. 2013).
For the reasons set forth below, the facts alleged in Plaintiff's complaint do not give rise to an inference that Defendants were personally involved in violating his constitutional rights.
1. Conditions of Confinement Claims
"The Constitution 'does not mandate comfortable prisons' . . . but neither does it permit inhumane ones, and it is now settled that 'the treatment a prisoner receives in prison and the conditions under which he is confined are subject to scrutiny under the Eighth Amendment.'" Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quoting Rhodes v. Chapman, 452 U.S. 337, 349 (1981), and Helling v. McKinney, 509 U.S. 25, 31(1993)). To state a claim with respect to his conditions of confinement, a plaintiff must allege facts showing that: (1) he was incarcerated under conditions that posed an excessive risk to his health or safety, and (2) the defendant acted with deliberate indifference by knowing of and disregarding that risk. Farmer, 511 U.S. at 834, 837; see Rhodes, 452 U.S. at 347; Phelps v. Kapnolas, 308 F.3d 180, 185 (2d Cir. 2002). Only "extreme deprivations" are sufficient to sustain a claim based on conditions of confinement. Blyden v. Mancusi, 186 F.3d 252, 263 (2d Cir. 1999). Ultimately, the question is whether the conditions of the prisoner's confinement violate contemporary standards of decency. Phelps, 308 F.3d at 185 (citing Helling, 509 U.S. at 35-36; Rhodes, 452 U.S. at 347).
Claims of pretrial detainees arise under the Due Process Clause of the Fourteenth Amendment rather than the Cruel and Unusual Punishment Clause of the Eighth Amendment. See Bell v. Wofish, 441 U.S. 520, 537 n. 16 (1979); Weyant v. Okst, 101 F.3d 845, 856 (2d Cir. 1996). The Court of Appeals for the Second Circuit has held, however, that "[c]laims for deliberate indifference to a serious medical condition or other serious threat to the health or safety of a person in custody should be analyzed under the same standard irrespective of whether they are brought under the Eighth or Fourteenth Amendment." Caiozzo v. Koreman, 581 F.3d 63, 72 (2d Cir. 2009).
Plaintiff alleges that Defendants retaliated against him by limiting his opportunities to leave his cell, but he does not say for how long or how the restriction posed an excessive risk to his health or safety. Plaintiff also does not provide sufficient facts to give rise to a retaliation claim. Espinal v. Goord, 558 F.3d 119, 128 (2d Cir. 2009) (holding that to prevail on a First Amendment retaliation claim, a prisoner must establish (1) that the speech or conduct at issue was protected, (2) that the defendant took adverse action against the plaintiff, and (3) that there was a causal connection between the protected conduct and the adverse action.)
2. Inadequate Medical Care Claims
Plaintiff alleges that Defendants violated his constitutional right to adequate medical care. To state a § 1983 claim for inadequate medical care under the Eighth Amendment or the Due Process Clause of the Fourteenth Amendment, a plaintiff must allege facts showing that correction officials were deliberately indifferent to the plaintiff's serious medical condition. See Estelle v. Gamble, 429 U.S. 97, 104-05 (1976); Caiozzo v. Koreman, 581 F.3d 63, 69-72 (2d Cir. 2009).
Deliberate indifference is evaluated under a two-pronged test comprised of both objective and subjective components. See Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011). The objective component of this standard requires that the alleged medical need be a "sufficiently serious" condition that "could result in further significant injury or the unnecessary and wanton infliction of pain." Harrison v. Barkley, 219 F.3d 132, 136 (2d Cir. 2000) (quoting Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998)); see also Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994) (noting that standard contemplates "a condition of urgency, one that may produce death, degeneration, or extreme pain").
The subjective component requires a prisoner to show that the defendant officials acted with a "sufficiently culpable state of mind" in depriving him of adequate medical treatment. Nielsen v. Rabin, 746 F.3d 58, 63 (2d Cir. 2014) (citing Salahuddin v. Goord, 467 F.3d 263, 280 (2d Cir. 2006)). That is, a plaintiff must show that the defendants knew of and disregarded an excessive risk to the inmate's health or safety by failing to take reasonable measures to avoid the harm. Caiozzo, 581 F.3d at 69. Under this standard, a challenge based on the inadvertent or negligent failure to provide adequate care does not raise a constitutional claim under either the Fourteenth Amendment or the Eighth Amendment. See Estelle, 429 U.S. at 106; Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir. 1998). A "mere disagreement over the proper treatment" is not actionable, Chance, 143 F.3d at 703; see, e.g., Hill v. Curcione, 657 F.3d 116, 123 (2d Cir. 2011) (prescribing Motrin rather than stronger pain medication to treat broken wrist, with no concomitant allegation of "a culpable state of mind," falls short of claim for deliberate indifference).
Where a prisoner' s claim is based on delay in the provision of medical treatment, the relevant concern is not "the severity of the prisoner's underlying medical condition," but the "particular risk of harm faced by a prisoner due to the challenged deprivation of care." Smith v. Carpenter, 316 F.3d 178, 186 (2d Cir. 2003). Although a delay in providing necessary medical care may in some cases constitute unconstitutional deliberate indifference, such a classification is reserved for when "officials deliberately delayed care as a form of punishment; ignored a 'life- threatening and fast degenerating' condition for three days; or delayed major surgery for over two years." Sims v. City of New York , 19-198-pr (2d Cir. Dec. 17, 2019) (quoting Demata v. N.Y. State Corr. Dep't of Health Servs., 198 F.3d 233 (2d Cir. 1999) (unpublished table decision); see also Hathaway v. Coughlin, 841 F.2d 48, 50-51 (2d Cir. 1988) (officials delayed arranging corrective hip surgery for over two years); Archer v. Dutcher, 733 F.2d 14, 16-17 (2d Cir. 1984) (officials deliberately delayed care as form of punishment for violations of discipline code or other invalid reasons).
Plaintiff claims that he suffered from myriad medical conditions, and that the treatment he received was either inadequate or delayed. But the facts Plaintiff alleges do not suggest that he had an objectively serious medical need. And there are no facts suggesting that Defendants ignored or delayed in responding to a life-threatening or fast-degenerating condition, or that the nature or timing of the treatment he received put him at serious risk of harm.
In addition, the complaint does not contain facts showing that any Defendant was deliberately indifferent to Plaintiff's medical needs. Dr. Davis told Plaintiff that they were meeting to discuss "medication procedures," and that any other medical issues needed to be brought to Dr. Ngbodi. Similarly, Nurse Administrator John Doe told Plaintiff that he was unable to address Plaintiff's complaints, and advised him to speak to Dr. Ngbodi. These allegations do not demonstrate that either Davis or Doe were deliberately indifferent to Plaintiff's serious medical needs. Dr. Ngbodi saw Plaintiff five times between January 9, 2019, and March 14, 2019. Although Plaintiff repeatedly states that Ngbodi ignored his complaints, he also indicates that she had him tested for the UTI, prescribed medication for the UTI and high-blood pressure, and had him evaluated for PT.
Because it is not clear whether Plaintiff can state a viable claim relating to the medical treatment he received at Fishkill, the Court grants him leave to file an amended complaint with respect to this claim.
3. Claim About Exposure to Cold
A prisoner may successfully state a claim of deliberate indifference if he alleges that he was exposed to extreme cold for long periods of time. Gaston v. Coughlin, 249 F.3d 156, 161, 164-65 (2d Cir. 2001) (holding that convicted prisoner stated Eighth Amendment claim by alleging that his cell block windows were not repaired, exposing him to freezing temperatures for the entire winter); Corselli v. Coughlin, 842 F.2d 23, 27 (2d Cir. 1988) (holding that convicted prisoner stated Eighth Amendment claim by alleging that he was given two blankets and subjected to freezing temperatures for three months); Wright v. McMann, 387 F.2d 519, 526 (2d Cir. 1967) (holding that convicted prisoner stated Eighth Amendment claim by alleging that he was exposed to "bitter cold" wearing only underwear for twenty-one days). If the cold is mild, or the exposure is short-term, Courts generally do not find a constitutional violation. See, e.g., Borges v. McGinnis, No. 03-CV-6375, 2007 WL 1232227, at *2, *6 (W.D.N.Y. Apr. 26, 2007) (dismissing complaint that alleged convicted prisoner was subjected to fifty-degree temperature for three days); Smith v. Burge, No. 03-CV-0955, 2006 WL 2805242, at *7 (N.D.N.Y. Sept. 28, 2006) (dismissing complaint that alleged convicted prisoner was left in T-shirt and underwear in "very cold" cell for less than one day); Davis v. Buffardi, No. 01-CV-0285, 2005 WL 1174088, at *2 (N.D.N.Y. May 4, 2005) (dismissing complaint for failure to allege that convicted prisoner suffered substantial harm despite allegations that he was denied extra blankets and clothing during ten-day period when boiler broke).
Plaintiff alleges that he was subjected to freezing temperatures for more than a month, which states a viable § 1983 claim. But Plaintiff does not name a defendant in connection with that claim or provide facts showing the personal involvement of that individual. The Court grants Plaintiff leave to amend his complaint to name a defendant and provide facts suggesting that that defendant should be held liable in connection with that claim.
4. Access-to-Court Claims
Plaintiff alleges that on one day, his legal mail was opened outside his presence, in violation of a DOCCS directive, and that he received mail from the state court eight days after it was postmarked, resulting a submission to that court being rejected as untimely. Plaintiff further states that he was denied access to the law library on one occasion. The Court construes these allegations as asserting violations of his right to access the courts.
"The constitutional right of access to the courts is violated where government officials obstruct legitimate efforts to seek judicial redress." City of New York v. Beretta U.S.A. Corp., 524 F.3d 384, 397 (2d Cir. 2008) (internal quotation marks and alteration omitted). To succeed on an access-to-court claim, a plaintiff must demonstrate "actual injury" by proving that the denial of access "hindered his efforts" to pursue a non-frivolous legal claim. Lewis v. Casey, 518 U.S. 343, 351 (1996).
The U.S. Supreme Court held in Bounds v. Smith, 420 U.S. 817, 821, 828 (1977), that prisoners "have a constitutional right of access to the courts," which "requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law." The Supreme Court has since clarified, however, that "Bounds did not create an abstract, freestanding right to a law library or legal assistance, [and] an inmate cannot establish relevant actual injury simply by establishing that his prison's law library or legal assistance program is subpar in some theoretical sense." Lewis v. Casey, 518 U.S. 343, 351 (1996). "[P]rison law libraries and legal assistance programs are not ends in themselves, but only the means for ensuring a reasonably adequate opportunity to present claimed violations of fundamental constitutional rights to the courts." Id. (internal quotation marks omitted).
Also, "a prisoner's right to the free flow of incoming and outgoing mail is protected by the First Amendment." Davis v. Goord, 320 F.3d 346, 351 (2d Cir. 2003) (relying on Heimerle v. Attorney General, 753 F.2d 10, 12-13 (2d Cir. 1985)). Courts "have consistently afforded greater protection to legal mail than to non-legal mail, as well as greater protection to outgoing mail than to incoming mail." Id. at 351. "[A]n isolated incident of mail tampering is usually insufficient to establish a constitutional violation." Id. at 351-52. To state a claim based on mail tampering, a plaintiff must allege that the incidents: (1) suggest an ongoing practice of censorship unjustified by a substantial government interest, or (2) have unjustifiably chilled the prisoner's right of access to the court or impaired his legal representation. Id. at 351. Thus, in Davis, the district court dismissed the plaintiff's allegations of two instances of tampering with his mail on the ground that he had "not alleged that the interference with his mail either constituted an ongoing practice of unjustified censorship or caused him to miss court deadlines or in any way prejudiced his legal actions," and the Second Circuit affirmed the dismissal.
Here, Plaintiff does not show that being denied access to the law library one time actually hindered his efforts to pursue a non-frivolous legal claim.
Moreover, the facts set forth about the handling of his prison mail do not show that prison officials actually interfered with his ability to pursue a meritorious legal claim. First, that Plaintiff received a court order eight days after it was postmarked does not suggest that prison officials deliberately delayed his receipt of that mail. In any event, the state court dismissed Plaintiff's Article 78 petition on the same day that Plaintiff received the government's answer. In short, the eight-day "delay" between the mailing of the court order and Plaintiff's receipt of it played no role in why the court did not accept or take into consideration Plaintiff's reply. To the extent Plaintiff seeks redress because the court dismissed his case before he was allowed to respond to the government's answer, his remedy was to file a motion for reconsideration or an appeal in state court.
Plaintiff's allegation that Defendants violated a DOCCS directive by opening his legal mail without his being present does not in and of itself state a federal claim. See Holcomb v. Lykens, 337 F.3d 217, 224 (2d Cir. 2013) (holding that state prison directives do not create liberty interests protected by the Due Process Clause); see also Shakur v. Selsky, 391 F.3d 106, 119 (2d Cir. 2004) (holding that New York statutes and DOCCS Directives do not create federally protected due process entitlements to specific state-mandated procedures).
For these reasons, Plaintiff's allegations about his legal mail and access to the law library do not give rise to a claim that his constitutional rights were violated.
5. Denial of Grievances
Plaintiff alleges that Defendants failed to process his grievances or appeals. Courts in the Second Circuit have held that "a prisoner has no constitutional right to a prison grievance procedure or to have his grievances investigated." Hayes v. Cnty. of Sullivan, 853 F. Supp. 2d 400, 434 (S.D.N.Y. 2012) (collecting cases); see also Ross. v. Westchester Cnty. Jail, No. 10-CV-3937 (DLC), 2012 WL 86467, at *8 n.9 (S.D.N.Y. Jan. 11, 2012) (citing Flick v. Alba, 932 F.2d 728, 729 (8th Cir. 1991)). "[I]nmate grievance programs created by state law are not required by the Constitution, and consequently[,] allegations that prison officials violated those procedures [do] not give rise to a cognizable § 1983 claim." Harris v. Westchester Cnty. Dep't of Corr., No. 06-CV-2011 (RJS), 2008 WL 953616, at *5 (S.D.N.Y. Apr. 3, 2008) (internal quotation marks and citations omitted, second alteration in original). Thus, inmates "do not have a due process right to a thorough investigation of grievances." Roseboro v. Gillespie, 791 F. Supp. 2d 353, 380 (S.D.N.Y. 2011) (internal quotation marks and citation omitted); see also Torres v. Mazzuca, 246 F. Supp. 2d 334, 342 (S.D.N.Y. 2003) ("The correction officers' failure to properly address [the plaintiff's] grievances by conducting a thorough investigation to [the plaintiff's] satisfaction does not create a cause of action for denial of due process because [the plaintiff] was not deprived of a protected liberty interest.").
As correction officials do not have a constitutional obligation to provide Plaintiff with grievance procedures or to perform a thorough investigation of his assertions, his claims concerning the grievance process are dismissed for failure to state a claim on which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii).
B. FOIL
Section 1983 does not provide a claim for "violations arising solely out of state law." Driscoll v. Townsend, 60 F. Supp. 2d 78, 81 (S.D.N.Y. 1999); see also Holcomb, 337 F.3d at 224. Rather, "'[e]levating a state-mandated procedure to the status of a constitutionally protected liberty or property interest, would make process an end in itself rather than a requirement whose constitutional purpose is to protect a substantive interest in which the individual has a claim of entitlement.'" Holcomb, 337 F.3d at 224 (quoting Sealed v. Sealed, 332 F.3d 51, 57 n.5 (2d Cir. 2003)).
Accordingly, a violation of New York Freedom of Information Law (FOIL), Pub. Off. L. § 87, et seq., does not, standing alone, support a § 1983 claim. See Rankel v. Town of Somers, 999 F. Supp. 2d 527, 535 (S.D.N.Y. 2014) ("[M]any of Plaintiff's allegations — e.g., that the Town refused to fulfill FOIL requests . . . — involve state law, not federal constitutional violations."); Collins v. City of New York, 923 F. Supp. 2d 462, 473 (E.D.N.Y. 2013) (citing P.C. v. McLaughlin, 913 F.2d 1033, 1045 (2d Cir. 1990)). Instead, an allegedly wrongful denial of a FOIL request is a matter of state law that is addressable in an Article 78 proceeding. See Hudson v. Cnty. of Dutchess, 51 F. Supp. 3d 357, 370-71 (S.D.N.Y. 2014); Hayes v. Perotta, 751 F.Supp.2d 597, 602 (S.D.N.Y. 2010) (noting that the plaintiff's claim that the defendant local governmental unit wrongly refused to provide him with information that he requested was "governed by New York's Freedom of Information Law").
Plaintiff's allegation that Defendant Hart failed to respond to his FOIL requests thus does not give rise to a constitutional claim.
C. HIPAA
Plaintiff alleges that the delay or denial of his right to review his medical records violated the Health Insurance Portability and Accountability Act (HIPAA). HIPAA generally provides for the confidentiality of individually identifiable health information, see 42 U.S.C. §§ 1320d-1 to d-7, and it authorizes the Secretary of Health and Human Services to make final regulations and bring enforcement actions. See 42 U.S.C. § 300gg-22. HIPAA permits health care providers and other covered entities to disclose protected health information without patient consent in certain situations, such as in response to a court order. See, e.g., 45 C.F.R. § 164.512(e)(1)(i), (ii).
The Second Circuit has noted that "[i]t is doubtful that HIPAA provides a private cause of action," Bond v. Conn. Bd. of Nursing, 622 F. App'x 43, 44 (2d Cir. 2015), and district courts in this circuit have uniformly held that it does not. See, e.g., Warren Pearl Constr. Corp. v. Guardian Life Ins. Co. of Am., 639 F. Supp. 2d 371, 377 (S.D.N.Y. 2009) (collecting cases for the proposition that "HIPAA does not provide for either an express or implied private right of action."); Mele v. Hill Health Ctr., 609 F. Supp. 2d 248, 255 (D. Conn. 2009) (holding that individuals cannot sue to enforce HIPAA or seek damages caused by such disclosures).
Because HIPAA does not provide a private cause of action allowing an individual suit, Plaintiff's claim that correction officers caused a delay in his reviewing his medical records, or that the records were not legible to him, do not state a § 1983 claim.
D. Motion for Counsel
The factors to be considered in ruling on an indigent litigant's request for counsel include the merits of the case, Plaintiff's efforts to obtain a lawyer, and Plaintiff's ability to gather the facts and present the case if unassisted by counsel. See Cooper v. A. Sargenti Co., 877 F.2d 170, 172 (2d Cir. 1989); Hodge v. Police Officers, 802 F.2d 58, 60-62 (2d Cir. 1986). Of these, the merits are "[t]he factor which command[s] the most attention." Cooper, 877 F.2d at 172.
Because it is too early in the proceedings for the Court to assess the merits of the action, Plaintiff's motion for counsel is denied without prejudice to renewal at a later date.
E. Motion for Injunctive Relief
When Plaintiff filed this complaint in the Western District of New York on April 15, 2019, he also filed a motion for a "temporary restraining order and preliminary and permanent injunction." To obtain such relief, Plaintiff must show: (1) that he is likely to suffer irreparable harm and (2) either (a) a likelihood of success on the merits of his case or (b) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly in his favor. See UBS Fin. Servs., Inc. v. W.V. Univ. Hosps., Inc., 660 F. 3d 643, 648 (2d Cir. 2011) (citation and internal quotation marks omitted); Wright v. Giuliani, 230 F.3d 543, 547 (2000). Preliminary injunctive relief "is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion." Moore v. Consol. Edison Co. of N.Y., Inc., 409 F.3d 506, 510 (2d Cir. 2005) (internal quotation marks and citation omitted).
As set forth above, the complaint in its current form is deficient. The Court therefore finds that Plaintiff has failed to show (1) a likelihood of success on the merits, or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly in his favor. Accordingly, Plaintiff's request for an order to show cause is denied without prejudice to renewal at a later stage.
LEAVE TO AMEND
Plaintiff is granted leave to amend his complaint to detail his claims. In the statement of claim, Plaintiff must provide a short and plain statement of the relevant facts supporting each claim against each defendant named in the amended complaint. Plaintiff is also directed to provide the addresses for any named defendants. To the greatest extent possible, Plaintiff's amended complaint must:
Plaintiff is reminded that all allegations must be raised in the amended complaint, and not solely in any accompanying motion he may file.
a) give the names and titles of all relevant persons;
b) describe all relevant events, stating the facts that support Plaintiff's case including what each defendant did or failed to do;
c) give the dates and times of each relevant event or, if not known, the approximate date and time of each relevant event;
d) give the location where each relevant event occurred;
e) describe how each defendant's acts or omissions violated Plaintiff's rights and describe the injuries Plaintiff suffered; and
f) state what relief Plaintiff seeks from the Court, such as money damages, injunctive relief, or declaratory relief.
Essentially, the body of Plaintiff's amended complaint must tell the Court: who violated his federally protected rights; what facts show that his federally protected rights were violated; when such violation occurred; where such violation 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 wishes to maintain must be included in the amended complaint.
CONCLUSION
The Clerk of Court is directed to assign this matter to my docket, mail a copy of this order to Plaintiff, and note service on the docket.
Plaintiff is granted leave to file an amended complaint that complies with the standards set forth above. Plaintiff must submit the amended complaint to this Court's Pro Se Intake Unit within sixty days of the date of this order, caption the document as an "Amended Complaint,"
And label the document with docket number 19-CV-10153 (CM). An Amended Complaint is attached to this order. No summons will issue at this time. If Plaintiff fails to comply within the time allowed, and he 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 motion for counsel and the motion for injunctive relief are denied without prejudice, and the Clerk of Court is directed to terminate them. (ECF Docs. 3, 4.)
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 in forma pauperis status is denied for the purpose of an appeal. Cf. Coppedge v. United States, 369 U.S. 438, 444-45 (1962) (holding that an appellant demonstrates good faith when he seeks review of a nonfrivolous issue). SO ORDERED. Dated: January 10, 2020
New York, New York
/s/_________
COLLEEN McMAHON
Chief United States District Judge __________ Write the full name of each plaintiff. -against- __________ 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. ___CV__________
(Include case number if one has been assigned) AMENDED COMPLAINT
(Prisoner) Do you want a jury trial?
[ ] Yes [ ] No
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.
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 in a "Bivens" action (against federal defendants). [ ] Violation of my federal constitutional rights [ ] Other: __________
II. 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
III. PRISONER STATUS
Indicate below whether you are a prisoner or other confined person: [ ] Pretrial detainee [ ] Civilly committed detainee [ ] Immigration detainee [ ] Convicted and sentenced prisoner [ ] 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: __________