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rejecting a proposed amended complaint containing frivolous claims
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06 Civ. 03400 (RCC) (THK).
April 13, 2007
AMENDED MEMORANDUM OPINION AND ORDER
This prisoner's civil rights action was referred to this Court for general pretrial supervision. Plaintiff Troy Wright, proceeding pro se, is a prisoner at Green Haven Correctional Facility ("Green Haven"). In his Complaint, brought under 42 U.S.C. § 1983, he contends that he has suffered health complications as a result of ingestion of, and exposure to, sewage contaminated water at Green Haven, and has received inadequate medical care, in violation of his Eighth Amendment rights. He has named as defendants various correctional officials and health care providers. Presently before the Court is Plaintiff's motion to amend the Complaint to add his son Troy Wright Jr. as a Plaintiff, and to add Antonia C. Novello ("Novello"), the former Commissioner of the New York State Department of Health ("DOH"), and Michael E. Burke ("Burke"), Director of the Bureau of Public Water Supply Protection of the Department of Health, as defendants. (See Motion to Amend Complaint and to Add Additional Party Plaintiff and Defendants, dated Jan. 12, 2007.) For the reasons that follow, the motion is denied.
DISCUSSION
I. Addition of Party-Plaintiff
It is "a well-established general rule in this Circuit that a parent not admitted to the bar cannot bring an action pro se in federal court on behalf of his or her child." Tindall v. Poultney High School Dist., 414 F.3d 281, 284 (2d Cir. 2005); accord Murphy v. Arlington Central School Dist. Bd. Of Educ., 297 F.3d 195, 201 (2d Cir. 2002); Ellis v. McDonalds Corp., No. 05 Civ. 3961 (NGG), 2005 WL 2155547, at *1 (E.D.N.Y. Sept. 7, 2005). "The rule is primarily based on protection of the legal interests of the minor and the impropriety of a person who is not a member of the bar representing another person in court proceedings."Tindall, 414 F.3d at 284.
The documents attached to Plaintiff's proposed Amended Complaint demonstrate that Plaintiff's son is fourteen or fifteen years old. He may therefore not appear as a Plaintiff in this action without representation by counsel. Accordingly, Plaintiff's motion to amend the Complaint to add his son as a Plaintiff is denied.
II. Addition of Party-Defendants
Defendants oppose the addition of Antonia Novello and Michael E. Burke as defendants on the grounds that their joinder would be futile, as Plaintiff has failed to allege their personal involvement in the deprivation of his constitutional right to be free of cruel and unusual punishment. (See Letter from Assistant Attorney General Efthimios Parasidis to the Court, dated Feb. 28, 2007.)
A. Applicable Legal Standards
Rule 15 of the Federal Rules of Civil Procedure provides that leave to amend pleadings "shall be freely given when justice so requires." Fed.R.Civ.P. 15(a). Leave to amend should be granted unless there is "any apparent or declared reason — such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [or] futility of the amendment. . . ." Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 230 (1962); see also Commander Oil Corp. v. Barlo Equip. Corp., 215 F.3d 321, 333 (2d Cir. 2000) (noting that leave to amend is "discretionary" and should be "freely given"); Block v. First Blood Assocs., 988 F.2d 344, 350 (2d Cir. 1993) ("The rule in this Circuit has been to allow a party to amend its pleadings in the absence of a showing by the nonmovant of prejudice or bad faith.").
However, "`[w]here it appears that granting leave to amend is unlikely to be productive, . . . it is not an abuse of discretion to deny leave to amend.'" Lucente v. IBM Corp., 310 F.3d 243, 258 (2d Cir. 2002) (quoting Ruffolo v. Oppenheimer Co., 987 F.2d 129, 131 (2d Cir. 1993)). "One appropriate basis for denying leave to amend is that the proposed amendment is futile." Id. (citing Nettis v. Levitt, 241 F.3d 186, 193 (2d Cir. 2001)); see also Foman, 371 U.S. at 182, 83 S. Ct. at 230; Ellis v. Chao, 336 F.3d 114, 127 (2d Cir. 2003). "A proposed amendment to a pleading [is] futile if it could not withstand a motion to dismiss pursuant to Rule 12(b)(6)." Oneida Indian Nation v. City of Sherrill, 337 F.3d 139, 168 (2d Cir. 2003), rev'd on other grounds, 544 U.S. 197, 125 S. Ct. 1478 (2005); see also Lucente, 310 F.3d at 258 (citing Dougherty v. Town of N. Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 88 (2d Cir. 2002)); Health-Chem Corp. v. Baker, 915 F.2d 805, 810 (2d Cir. 1990) ("where . . . there is no merit in the proposed amendments, leave to amend should be denied").
Because Plaintiff is proceeding pro se, his submissions, including his proposed Amended Complaint, are held "to less stringent standards than formal pleadings drafted by lawyers."Hughes v. Rowe, 449 U.S. 5, 9, 101 S. Ct. 173, 176 (1980). However, under 28 U.S.C. § 1915(e)(2)(B), a court shall dismiss an in forma pauperis action where it is satisfied that the action is "(I) 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." An action is "frivolous" when either "the factual contentions are clearly baseless, such as when allegations are the product of delusion or fantasy," or "the claim is based on an indisputably meritless legal theory." Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998) (internal citations omitted). A claim is considered to be based on an "indisputably meritless legal theory" if the claim lacks an arguable basis in law, see Benitez v. Wolff, 907 F.2d 1293, 1295 (2d Cir. 1990) (per curiam), or a dispositive defense clearly exists on the face of the complaint,see Pino v. Ryan, 49 F.3d 51, 53 (2d Cir. 1995).
"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 § 1983." Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (internal quotation marks omitted); accord Richardson v. Goord, 347 F.3d 431, 435 (2d Cir. 2003) ("To establish the liability of a supervisory official under § 1983, a plaintiff must show the defendant's personal involvement in the alleged constitutional violations."). The bare fact that an individual occupies a high position is insufficient to sustain Section 1983 liability. See Colon v. Coughlin, 58 F.3d 865, 874 (2d Cir. 1995); Ayers v. Coughlin, 780 F.2d 205, 210 (2d Cir. 1985).
Supervisory liability under § 1983 can be shown in one or more of the following ways: (1) actual direct participation in the constitutional violation, (2) failure to remedy a wrong after being informed through a report or appeal, (3) creation of a policy or custom that sanctioned conduct amounting to a constitutional violation, or allowing such a policy or custom to continue, (4) grossly negligent supervision of subordinates who committed a violation, or (5) failure to act on information indicating that unconstitutional acts were occurring.Richardson, 347 F.3d at 435.
Moreover, in order to establish liability under Section 1983, more than mere negligence is required. To demonstrate an Eighth Amendment violation, a prisoner must show deliberate indifference to his serious health and safety concerns. "A prison official's `deliberate indifference' to a substantial risk of serious harm to an inmate violates the Eighth Amendment." Farmer v. Brennan, 511 U.S. 825, 828, 114 S. Ct. 1970 (1994). An Eighth Amendment claim must satisfy a two-part test: (1) "only those deprivations denying the minimal civilized measure of life's necessities are sufficiently grave to form the basis of an Eighth Amendment violation," Wilson v. Seiter, 501 U.S. 294, 298, 111 S. Ct. 2321, 2324 (1991) (internal quotation marks and citations omitted), and (2) "[t]he charged official must be subjectively aware that his conduct creates such a risk," Salahuddin v. Goord, 467 F.3d 263, 281 (2d Cir. 2006).
B. Application to Allegations in the Amended Complaint
Defendants are correct that Plaintiff's proposed amendment would be futile, as the claims against Novello and Burke could not withstand a motion to dismiss.
With respect to Novello, Plaintiff merely alleges that she was the Commissioner of DOH and that she "eschewed [her] responsibility to provide adequate assistance with regard to prison health concerns;" "[s]he was aware of the existence of Sewage Contamination at Green Haven Correctional Facility and the risk to Plaintiff's . . . health, and failed to expose and prevent wide spread corruption within Green Haven Correctional Facility through diligent efforts." (Amended Complaint ("Am. Compl."), dated Jan. 10, 2007, ¶ 20.)
With respect to Burke, the Amended Complaint alleges that he investigated matters of sewage contamination at Green Haven, but "neglected to commit himself to any other acts." (Am. Compl. ¶ 21.)
These allegations are insufficient to state a claim against either Novello or Burke for violation of Plaintiff's Eighth Amendment rights. There is no allegation that Novello directly participated in the violation of Plaintiff's constitutional rights. Nor is there any allegation or evidence that she was aware of a serious threat to Plaintiff's health and that she demonstrated deliberate indifference to that threat. While Plaintiff contends that he complained directly to DOH (see Affidavit in Opposition to Defendant's Answer, dated Dec. 27, 2006 ("Pl.'s Aff."), at 10), there is no evidence that Novello was aware of his complaints, no less that she had direct knowledge of a serious threat to Plaintiff's health caused by contaminated water. Moreover, Plaintiff acknowledges that in response to a complaint that he sent to DOH, an investigation was conducted under Burke's supervision. Plaintiff has included in his submissions to the Court a copy of two responses Burke made to complaints about the Green Haven water. In his first response to a series of complaints made in 2003 and 2004, Burke indicated that the prison's water supply system "continues to have a good history of bacteriological sampling results," and that "[t]he quality of the water at the prison continues to meet state sanitary code standards." (Letter from Michael E. Burke to the New York State Commission of Correction, dated Feb. 13, 2004, attached as Ex. C. to Pl.s' Aff.) In a second letter sent in response to a further complaint, also submitted by Plaintiff to the Court, DOH concluded that "[t]he quality of the water at the prison continues to meet state sanitary code standards." (Letter from Michael E. Burke to New York State Commission of Correction, dated Aug. 13, 2004, attached as Ex. S to Pl.'s Aff.) Both letters also noted that action had been taken to monitor whether the prison's wells were being impacted by surface water.
The only communication that Plaintiff submitted to the Court that is addressed to Novello relates to the purportedly inadequate medical care Plaintiff claimed to be receiving. (See Letter from Troy Wright to Antonia Novello, dated Feb. 6, 2004, attached as Ex. R to Pl.'s Aff.)
Thus, there is no allegation, and no evidence, that either Novello or Burke was aware of a serious threat to Plaintiff's health, and no allegation, or evidence, that anyone at DOH was deliberately indifferent to Plaintiff's serious health concerns. It follows that an amendment of the Complaint adding Novello and Burke as Defendants would be futile and frivolous. Accordingly, Plaintiff's motion to amend the Complaint is denied.
So Ordered.