Dwyer v. Boley

Background

Doviel Cleve Dwyer, who is incarcerated at Wende Correctional Facility, brought this action without a lawyer under 42 U.S.C. § 1983, a federal law allowing civil-rights claims against state officials. He alleges that, while incarcerated at Fishkill Correctional Facility on April 10, 2023, the defendants subjected him to excessive force and denied him medical attention. The court had previously allowed him to proceed without prepaying the filing fee.

Screening of the Complaint

The Prison Litigation Reform Act requires the court to conduct an initial review, or screening, of a prisoner’s complaint against governmental officers or employees. At screening, the court must dismiss claims that are frivolous, malicious, inadequately pleaded, or barred because the defendant is immune from monetary relief.

The court found that Dwyer named two correctional sergeants with the surname Lopez and three correctional officers with the surname Wilson, but did not explain how each individual was personally involved in the alleged events. Because personal involvement is required for liability under § 1983, the court dismissed Dwyer’s claims against Correctional Sergeants Raymond Lopez, Jr. and Martin G. Lopez, and Correctional Officers Eric E. Wilson, George Wilson, and Jerry Wilson, with leave to replead those claims in an amended complaint.

Dwyer referred in the body of his complaint to Correctional Officer Bullard but did not list Bullard in the caption. Because the complaint showed a clear intention to assert claims against Bullard, the court directed the Clerk of Court to add Officer Bullard as a defendant. The court stated that this amendment was without prejudice to any defenses Bullard might assert.

Service and Unidentified Defendants

Because Dwyer was permitted to proceed without prepaying the filing fee, the court ordered the Clerk of Court to issue summonses and provide the necessary paperwork to the U.S. Marshals Service for service on Superintendent Edward R. Burnett; Correctional Sergeant Kevin C. Eschmann; and Correctional Officers Christopher K. Boley, Olga M.G. Flores, Michael Pomarico, Jason J. Scott, and Bullard. The court stated that service must occur within 90 days after the summonses are issued, or Dwyer should request an extension of time.

The complaint also identified three medical staff members as Doe defendants. The court ordered the New York State Attorney General’s Office to determine their identities and service addresses within 60 days. After receiving that information, Dwyer must file an amended complaint naming the Doe defendants within 30 days. The amended complaint will replace, rather than supplement, the original complaint, and the court will screen it after filing.

Other Orders

The court stated that Local Civil Rule 33.2 applies. Under that rule, the defendants must serve responses to specified standard discovery requests within 120 days after service of the complaint and must quote each request verbatim in their responses.

Dwyer also requested appointment of pro bono counsel, meaning a lawyer who would represent him without charging a fee. The court denied that request without prejudice to renewal later in the case. It concluded that the defendants had not yet been served, so the court could not determine whether the claims were likely to have merit, and that Dwyer had not shown at that stage that he could not investigate the facts or present the case, that the legal issues were unusually complex, or that counsel would be more likely to produce a just result.

The court certified that any appeal from the order would not be taken in good faith and denied permission to proceed without prepaying fees for purposes of an appeal. The order also informed Dwyer about assistance available from the City Bar Justice Center’s Pro Se Legal Assistance Project, which the order stated is a private organization and is not operated by the court.

Disposition and Classification

The court dismissed the claims against the two Lopez defendants and three Wilson defendants with leave to replead; directed that Bullard be added as a defendant; ordered service on the identified defendants; ordered assistance in identifying the Doe defendants; and denied the request for pro bono counsel without prejudice to renewal. Because this was a prisoner-complaint screening order that dismissed claims for failure to state a claim without deciding the underlying excessive-force and medical-care allegations, it is classified as a procedural order.