Franks v. Russo

SHAQUAN FRANKS, Plaintiff, v. A. RUSSO, et al., Defendants.

9:18-CV-1282 (GTS/TWD)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

December 19, 2018

APPEARANCES:

SHAQUAN FRANKS

Plaintiff, pro se

12-A-1370

Wende Correctional Facility

P.O. Box 1187

Alden, NY 14004

GLENN T. SUDDABY Chief United States District Judge

DECISION AND ORDER

I. BACKGROUND

Pro se plaintiff Shaquan Franks commenced this action in the United States District Court for the Western District of New York ("Western District") in May 2018, by filing a complaint, together with an application to proceed in forma pauperis ("IFP") and motion for preliminary injunctive relief. Dkt. No. 1 ("Compl."); Dkt. No. 2 ("IFP Application"); Dkt. No. 3 ("Preliminary Injunction Motion").¹

By Decision and Order filed October 31, 2018, Western District Judge Elizabeth A. Wolford granted plaintiff's IFP Application and severed and transferred the portion of plaintiff's claims regarding events that occurred at Sullivan Correctional Facility to the Southern District of New York, and the portion of plaintiff's claims regarding events that occurred at Eastern Correctional Facility ("Eastern C.F."), as detailed on pages 3, 6-9, and 24-52 of the complaint, to the Northern District of New York. See Dkt. No. 11 ("Transfer Order") at 8.² This action was transferred to this District on November 1, 2018. Dkt. No. 12.

II. DISCUSSION

A. Legal Standard for Review of the Complaint

Section 1915(e) of Title 28 of the United States Code directs that, when a plaintiff seeks to proceed in forma pauperis, "(2) . . . the court shall dismiss the case at any time if the court determines that - . . . (B) the action . . . (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B).

Likewise, under 28 U.S.C. § 1915A, a court must review any "complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity" and must "identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint . . . is frivolous, malicious, or fails to state a claim upon which relief may be granted; or . . . seeks monetary relief from a defendant who is immune from such relief." 28 U.S.C. § 1915A; see also Carr v. Dvorin, 171 F.3d 115, 116 (2dCir. 1999) (per curiam) (Section 1915A applies to all actions brought by prisoners against government officials even when plaintiff paid the filing fee).

Therefore, the Court must determine whether plaintiff may properly maintain his complaint before permitting him to proceed. Although a court has the duty to show liberality towards pro se litigants, see Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990), and should exercise "extreme caution . . . in ordering sua sponte dismissal of a pro se complaint before the adverse party has been served and both parties (but particularly the plaintiff) have had an opportunity to respond," Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983) (internal citations omitted), a court also has the responsibility to determine that a claim is not frivolous before permitting a plaintiff to proceed with an action in forma pauperis. "Dismissal of frivolous actions pursuant to 28 U.S.C. § 1915(e) is appropriate to prevent abuses of the process of the court," Nelson v. Spitzer, No. 9:07-CV-1241 (TJM/RFT), 2008 WL 268215, at *1 n.3 (N.D.N.Y. Jan. 29, 2008) (citation omitted), as well as "to discourage the filing of, and waste of judicial and private resources upon, baseless lawsuits that paying litigants generally do not initiate because of the costs of bringing suit and because of the threat of sanctions for bringing vexatious suits under Federal Rule of Civil Procedure 11." Neitzke v. Williams, 490 U.S. 319, 327 (1989). To determine whether an action is frivolous, a court must look to see whether the complaint "lacks an arguable basis either in law or in fact." Id. at 325.

When reviewing a complaint, the court may also look to the Federal Rules of Civil Procedure. Rule 8 provides that a pleading that sets forth a claim for relief shall contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). A court should not dismiss a complaint if the plaintiff has stated "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S.544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although the court should construe the factual allegations in the light most favorable to the plaintiff, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Id.

B. Summary of Plaintiff's Complaint

The portion of this action that has been transferred to this District pertains to claims arising out of plaintiff's confinement at Eastern C.F. See generally Compl. The following facts related to plaintiff's confinement at Eastern C.F. are set forth as alleged by plaintiff in his complaint.

Plaintiff suffers from the eye disease "keratoconus." Compl. at 6. On October 4, 2017, while plaintiff was incarcerated at Eastern C.F., he was taken to the Albany Medical Center for a cornea transplant. Id. As a result of the surgery, plaintiff received twenty (20) stitches in his left eye, which was covered with an "eye shield." Id.

Upon plaintiff's return to Eastern C.F., he was housed in the facility hospital. Compl. at 6. Between October 4, 2017, and October 11, 2017, plaintiff was denied recreation even though defendant Doctor Mikhail Gusman informed "security staff" that it was permissible for plaintiff to engage in recreation. Id.

Plaintiff complained to Corrections Sergeant Nicholas Tacti (not a party) about being denied recreation, and was told by Corrections Lieutenant Kenneth Letus (not a party) on October 11, 2017, that he is "supposed to get rec[.]" Compl. at 6. However, defendant Doctor Loricchio Andola told plaintiff that he cannot receive recreation while in the facilityhospital, and therefore had to choose between recreation and staying in the facility hospital. Id. Plaintiff stated to defendant Andola that he is entitled to recreation "by law." Id. In response, defendant Andola "kicked [plaintiff] out [of] the [facility] hospital and sen[t] [him] back to the [special housing unit]." Id.

The special housing unit ("SHU") was "very dirty[,]" which plaintiff communicated to unidentified nurses. Compl. at 7. Plaintiff also advised defendants Gusman and Andola about the "high risk" of him contracting an eye infection, but they "refuse[d] to send [him] back to the facility hospital cause they don't want to give [him] 'rec' while [he's] up there[.]" Id. Plaintiff "wrote this up" to the Superintendent of Eastern C.F., defendant William Lee, but "his high ranking authoritie[s] refuse[d] to intervene with the on going [sic] harassment of retaliation[.]" Id.

At an unidentified date, plaintiff suffered "a mental/emotional breakdown" and was prescribed medication for depression and anxiety. Compl. at 7. Despite suffering these adverse health conditions, plaintiff still did not receive a "reasonable accommodation" or have his medical permits "honored[.]" Id.

Defendant Lee and "his high ranking authoritie[s]" failed to intervene in the ongoing harassment "as a form of punishment[.]" Compl. at 8. At the same time, "Medical" continually denied plaintiff "adequate medical care[,]" and the "CO's" failed to follow the "PIMS program put in place by Albany even after [plaintiff] wrote a grievance on 'Lt. K. Simmons' for not moving [his] PIMS level up after [plaintiff] did [his] 30 days post adjustment[,]" and despite the fact that defendant DSS A. Russo "told them to move [his] PIMS level[.]" Id. Instead, and in response to plaintiff's grievance, Lt. K. Simmons had plaintiff "extracted" from his SHU cell, after which plaintiff was subjected to "excessive force"by unidentified corrections officials, who "popped" his stitches and injured his chest. Id. at 8-9, 22. As a result of the use-of-force incident and the refusal to provide plaintiff "reasonable accommodations," plaintiff lost vision in his left eye and thereafter began experiencing "real bad head pains[.]" Id. at 9.

Liberally construed, plaintiff asserts the following claims arising out of his confinement at Eastern C.F.: (1) defendants Lee, Gusman, Andola, and Russo failed to make "reasonable accommodations" regarding plaintiff's medical condition, in violation of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. ("ADA"), Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 ("Rehabilitation Act"), and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution; (2) defendants Lee, Gusman, Andola, and Russo denied plaintiff access to adequate medical care, in deliberate indifference to his serious medical needs, in violation of the Eighth Amendment to the United States Constitution; (3) defendants Lee, Gusman, and Andola subjected plaintiff to inadequate conditions of confinement, in violation of the Eighth Amendment to the United States Constitution; (4) non-party corrections officials subjected plaintiff to excessive force, in violation of the Eighth Amendment to the United States Constitution; and (5) defendants Lee, Gusman, Andola, and Russo denied plaintiff access to adequate medical care, and defendant Andola caused plaintiff to be transferred out of the facility hospital, in retaliation for plaintiff engaging in protected activity, in violation of the First Amendment to the United States Constitution.³

Plaintiff seeks monetary damages, as well as declaratory and...