GARY L. SHARPE, Senior District Judge.
Plaintiff Walter Roache commenced this pro se civil rights action pursuant to 42 U.S.C. § 1983 ("Section 1983") asserting claims related to his confinement in the custody of the New York State Department of Corrections and Community Supervision (DOCCS) and the New York State Office of Mental Health (OMH). Dkt. No. 1 ("Compl.").
In a Decision and Order filed on August 16, 2018 (the "August Order"), the Court reviewed the sufficiency of the Complaint in accordance with 28 U.S.C. § 1915(e) and 28 U.S.C. § 1915A. Dkt. No. 3. Pursuant to Fed. R. Civ. P. 21 and 28 U.S.C. § 1404(a), the Court severed and transferred claims that arose at Fishkill Correctional Facility ("Fishkill C.F.") against defendants Superintendent William Connell and Fishkill C.F. FOIL Officer John Doe to the Southern District of New York. Id. at 7-9. The Court reviewed the remaining allegations and directed defendants Commissioner Brian Fischer, Superintendent Susan Connell (hereinafter "Connell"), Oneida Correctional Facility FOIL Officer John Doe, FOIL Officer Chad Powell, Commissioner Anne Marie T. Sullivan, Director Jeffery Nowicki, and Program Director Sal Licari to respond to the following claims: (1) First Amendment access-to-the-courts claims related to the 2015 jury trial; and (2) due process claims. Id.
On January 17, 2019, Defendants Fischer, Sullivan, and Nowicki moved for partial dismissal the Complaint.
On May 13, 2019, the Court adopted the Report-Recommendation. Dkt. No. 33 (the "May Order"). The matter is now before the Court for initial screening of Plaintiff's Amended Complaint. Dkt. No. 42.
The factual recitation set forth in the Amended Complaint is substantially similar to what was set forth in the original Complaint. Compare Compl., with Am. Compl. Plaintiff asserts new factual allegations related to the supervisory defendants.
In 2009, Plaintiff attended a court proceeding held pursuant to New York Mental Hygiene Law (MHL) Article 10, in Supreme Court in Orange County. Am. Compl. at 1. During the proceeding, Plaintiff's assigned counsel had a "one page" parole data sheet with factual information related to Plaintiff's confinement; i.e., arrest date, sentencing, and release date. Id. The attorney did not have any information with respect to Plaintiff's institutional, vocational, educational, and therapeutic records. Id. At the conclusion of the hearing, the Court ruled that Plaintiff was a Level III Sex Offender. Id. at 2.
While confined at Orange County Correctional Facility,
When Plaintiff returned to Oneida Correctional Facility ("Oneida C.F."), he wrote to Connell and advised her that he received a response from the Record Department. Am. Compl. at 2. Connell responded and directed Plaintiff to seek assistance from a clerk at the law library. Id. Plaintiff went to the law library and asked how he could obtain his program records including, "twenty-seven satisfactory completed degrees," teaching certificates, plumbing certificates, parole assessments, and evidence of completion of Alcohol Substance Abuse Treatment, and Aggressive and Sexual Behavior Management, and programs related to Assailant and Victim Relationships. Id. Plaintiff was advised to write to the Freedom of Information Law (FOIL) Department. Id. at 3. Plaintiff wrote to Connell asking for assistance, and Connell reiterated that he should contact the FOIL Departm ent. Am. Compl. at 3. Connell did not know the identity of the FOIL officer.
Plaintiff forwarded his FOIL and Freedom on Information Act (FOIA) requests for his institutional, educational, vocations, and therapeutic records, and "twenty-seven additional program certificates" to Fischer.
In April 2010, Plaintiff was transferred to the Central New York Psychiatric Center (CNY PC). Am. Compl. at 17. While at CNY PC, Plaintiff participated in clinical, therapeutic, education, and vocational programs. Id. at 17-18. In 2012, preparation for an appeal and "jury trial," Plaintiff wrote to Nowicki to obtain his records. Id. at 18, 21, 25. Nowicki responded and directed Plaintiff to write to the Unit 404 Treatment Team Leader to obtain his CNY PC Point Scoring Program Records. Id. Plaintiff wrote to the Team Leader, but received a response directing him to write to Nowicki and Risk Management. Am. Compl. at 18, 25. Risk Management told Plaintiff to write to the Treatment Team Committee. Id. at 25. Plaintiff contends that "this back of forth" continued until 2013. Id. at 18. Finally, Plaintiff wrote to the Director of the Health Information Management Department (HIM). Id. at 26.
On December 10, 2013, Plaintiff received a response from Powell, an Administrative Assistant in the FOIL Unit. Am. Compl. at 3, 36. Powell informed Plaintiff that "369 pages of information" was available and, upon receipt of payment, the documents would be forwarded." Id. at 41. Plaintiff and Powell spoke "about a half dozen times or more about Plaintiff's multiple FOIL and FOIA letters to Mr. Brian Fischer and to Mr. Chad Powell, and [the] Orange County Supreme Court subpoena." Id. at 5.
On May 6, 2016, Plaintiff received a response from an HIM administrative aid, T. Fazio, acknowledging his request and directing him to submit a disbursement form and payment to receive program records from January 2014 to April 8, 2016. Am. Compl. at 26, 40. Fazio advised that, "[p]rior to January 2014, program schedules were not part of the URC/CNYPC record and cannot be approved for copies. Please request those program schedules prior to January 28, 2014 through S. Licari of CNYPC." Id.
Plaintiff submitted several FOIL and FOIA requests and wrote letters to Nowicki and Licari seeking his records from April 2010 through January 2014. Am. Compl. at 18-19, 21, 26.
Plaintiff wrote to Sullivan explaining that he wrote several letters to Nowicki and other officials with FOIA and FOIL requests for program records prior to January 2014, to no avail.
As a result of the review of the original Complaint and various orders, the Court directed Oneida C.F. FOIL Officer Doe, Licari, and Powell to respond to the following: (1) First Amendment access-to-courts claim related to Plaintiff's right to obtain his treatment and rehabilitation records for use in his defense at trial; and (2) Fourteenth Amendment due process claim alleging Plaintiff is illegally detained at CNY PC because he was not provided with his treatment and rehabilitation records for use in his defense at trial. See Dkt. No. 32 at 3. These claims are repeated and realleged in the Amended Complaint, and thus, survive review as well.
The law related to personal involvement and supervisory officials was discussed at length in the Report-Recommendation and will not be restated herein. See Dkt. No. 32 at 5-7.
In the May Order, the Court dismissed Plaintiff's claims against Fischer, Sullivan, and Connell finding that although Plaintiff wrote letters to Defendants and did not receive a response, the Complaint lacked facts suggesting that Defendants received the letters (communications) or took any action with respect to them. Dkt. No. 32 at 7-8, 12. With respect to Nowicki, the Court found that Nowicki was not "specifically referenced anywhere in plaintiff's factual recitation [. . .] [t]here is no indication that defendant Nowicki received, responded, or otherwise took action with respect to a letter addressed to him from plaintiff." Id. at 8.
Here, the Amended Complaint contains sufficient facts suggesting that Connell and Nowicki were personally involved in the alleged First and Fourteenth Amendment violations through Plaintiff's various letters and Defendants' responses. See Am. Compl. at 7-12, 18, 21, 26. At this juncture, the Court finds that Plaintiff's claims against Connell and Nowicki survive sua sponte review and require a response. In so ruling, the Court expresses no opinion as to whether these claims can withstand a properly filed motion to dismiss or for summary judgment.
A different conclusion is reached, however, with respect to Fischer and Sullivan. "It is within the purview of a superior officer to delegate responsibility to others." Scott v. Koenigsmann, 2016 WL 1057051, at *7 (N.D.N.Y. Mar. 14, 2016). Courts in this District have held that letters to supervisors and his responses (via subordinates) do not satisfy the personal involvement requirement. See Hamilton v. N.Y. State Dep't of Corr. & Cmty. Supervision, No. 918CV1312, 2019 WL 2352981, at *8 (N.D.N.Y. June 4, 2019) (collecting cases).
Here, without more, the fact that Fischer and Sullivan referred Plaintiff's letters to others for response, is not sufficient to establish Defendants' personal involvement. See Sealey v. Giltner, 116 F.3d 47, 51 (2d Cir. 1997) (a supervisor's referral of a prisoner's letter of complaint to a subordinate for review, and a later response to the prisoners to advise him of the subordinate's decision did not demonstrate the requisite personal involvement on the part of the supervisory prison official); Vega v. Artus, 610 F.Supp.2d 185, 199 n.13 (N.D.N.Y. 2009) ("Prison supervisors are entitled to refer letters of complaint to subordinates, and rely on those subordinates to conduct an appropriate investigation and response, without rendering the supervisors personally involved in the constitutional violations alleged in the letters of complaint.").
Thus, Plaintiff's claims against Fischer and Sullivan are dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b) for failure to state a claim upon which relief may be granted.
The Court must address the issue of service on Connell. Under Federal Rule of Civil Procedure 4(c)(1), the plaintiff is responsible for service of the summons and complaint for each defendant within a specified time period. Specifically, the plaintiff must effectuate service of process within sixty days of the filing of the complaint. See N.D.N.Y. L.R. 4.1(b). Failure to properly serve any defendant in accordance with the Federal Rules will result in the court, upon motion or on its own initiative after notice to the plaintiff, to dismiss the case without prejudice as to that defendant. See Fed. R. Civ. P. 4(m).
Where, as here, a plaintiff has been authorized by the Court to proceed in forma pauperis pursuant to 28 U.S.C. § 1915, the United States Marshals Service is appointed to effect service of process of the summons and complaint on his behalf. See Fed. R. Civ. P. 4(c)(3); 28 U.S.C. § 1915(d) ("The officers of the court shall issue and serve all process, and perform all duties in [in forma pauperis] cases."). Thus, once a plaintiff has identified the defendants, the Marshals Service must undertake to locate them and accomplish the service. The Marshals Service is obligated to effect service of process in accordance with the Federal Rules of Civil Procedure and, if necessary, the Marshals Service must make multiple attempts at service. See Armstrong v. Sears, 33 F.3d 182, 188 (2d Cir. 1994) (where defendant refused to acknowledge Marshals Service's request for waiver under Rule 4(d), the Marshals Service must effect personal service under Rule 4(e)); accord Hurlburt v. Zaunbrecher, 169 F.R.D. 258, 259 (N.D.N.Y.1996); see also N.D.N.Y.L.R. 5.1(h) (Marshals Service is obligated to make personal service at plaintiff's request if no acknowledgment is filed with the court).
On August 20, 2018, the Clerk of the Court issued a summons to Connell. Dkt. No. 4. On November 2, 2018, the summons for Connell was returned "unexecuted." Dkt. No. 12. On February 6, 2019, the Clerk reissued a summons to Connell. Dkt. No. 25. On March 28, 2019, the summons was returned "unexecuted." Dkt. No. 30. To date, Connell has not been served.
Under Valentin v. Dinkins, 121 F.3d 72, 75-76 (2d Cir.1997), a pro se litigant is entitled to assistance from the district court in identifying a defendant for service of process. Although the Amended Complaint provides the name of the defendant, the Marshals Service has been unsuccessful in its attempts to effectuate service. To complicate matters, Plaintiff is no longer incarcerated at Oneida C.F. Accordingly, the Court instructs the Attorney General's Office to advise the Court whether it is representing Connell and, if so, whether Connell waives service of summons. If the Attorney General's Office is not representing Connell or if the defendant declines to waive service, the Court instructs the Attorney General's Office to provide an address where the defendant can currently be served.
