Kelly v. Silver

Background

Shytique Kelly, who was incarcerated at Eastern Correctional Facility when the order was issued, brought this action without a lawyer under 42 U.S.C. § 1983. He alleged that the defendants denied him adequate medical care while he was incarcerated at Green Haven Correctional Facility. The court had previously granted permission for Kelly to proceed without paying the filing fee in advance.

The case was originally filed in the Northern District of New York and was transferred to the Southern District of New York. The court reviewed the complaint under the statutes requiring dismissal of a prisoner’s complaint, or part of it, if the complaint is frivolous, malicious, fails to state a legally sufficient claim, seeks money from an immune defendant, or falls outside the court’s jurisdiction. Because Kelly was representing himself, the court was required to read his allegations liberally and consider the strongest claims reasonably suggested by them.

Personal involvement

For a claim under Section 1983, a plaintiff must allege facts showing that each defendant was directly and personally involved in the alleged constitutional violation. A defendant cannot be held liable merely because that defendant supervised or employed someone who allegedly violated the plaintiff’s rights.

The court found that Kelly did not allege facts showing how B. Tuohy was personally involved in the events underlying the claims. It therefore dismissed Kelly’s claims against Tuohy for failure to state a claim on which relief may be granted.

The complaint also named a John Doe correctional officer and C.O. P., but it did not explain how either unidentified person was involved. It also did not provide information that would allow the New York State Department of Corrections and Community Supervision to help identify them.

Leave to amend

Because Kelly was representing himself, the court gave him 30 days to file an amended complaint. The amended complaint may include facts showing Tuohy’s personal involvement and additional facts showing how the John Doe correctional officer and C.O. P. were involved, together with information that could help identify them.

The court stated that the amended complaint will completely replace the original complaint rather than add to it. Kelly must therefore repeat in the amended complaint any facts or claims from the original complaint that he wants to keep.

Service on remaining defendants

The court ruled that Kelly could rely on the court and the U.S. Marshals Service to serve the remaining named defendants because he had permission to proceed without paying the filing fee in advance. The remaining defendants were Dr. L. Silver, Nurse Andrew Miller, Dr. A. Acrish, Carol A. Moores, Dr. Bentivegna, Nurse Carrie, Nurse Giordani, and Nurse Rodriguez.

The court directed the Clerk’s Office to issue summonses, complete the required service forms, and deliver the necessary paperwork to the Marshals Service. If service is not completed within 90 days after the summonses are issued, Kelly should request an extension of time. The court also directed Kelly to notify the court in writing if his address changes and stated that the action could be dismissed if he failed to do so.

Disposition

The court dismissed Kelly’s claims against B. Tuohy for failure to state a claim, with 30 days’ leave to replead in an amended complaint. It directed the Clerk’s Office to issue summonses and arrange service on the eight remaining named defendants. The order did not resolve the underlying medical-care allegations against those defendants.