Chrichlow v. Sipple

Background

Kevin Damion Crichlow filed this self-represented action while incarcerated, alleging that the defendants violated federally protected rights. The court had allowed him to proceed without paying the filing fee upfront. He filed an amended complaint and then a second amended complaint. The case had previously been assigned to Judge Karas and was reassigned to Judge Philip M. Halpern on April 16, 2020.

The defendants asked the court to revoke Crichlow’s permission to proceed without paying the filing fee upfront under the Prison Litigation Reform Act’s “three strikes” rule. That rule generally prevents a prisoner from proceeding without prepaying the filing fee after three qualifying cases or appeals were dismissed. The court examined three earlier proceedings and concluded that one did not count as a strike because it involved a partial dismissal and a later failure to prosecute, and that dismissals based on failure to prosecute or mixed reasoning did not qualify as strikes under the authorities discussed by the court.

Crichlow also asked for more time to serve the second amended complaint. That complaint named twelve newly identified defendants, sixteen defendants who had already been served, two defendants who had previously been dismissed, and two defendants whose identities were unknown.

Rulings on the pleadings and service

The court denied the defendants’ request to revoke Crichlow’s permission to proceed without paying the filing fee upfront.

The court dismissed the claims against Rachel Herzog and C.O. S. William because the second amended complaint did not allege facts against them sufficient to show proper joinder with the other defendants or satisfy the requirement for a short and plain statement of a claim. The court also dismissed the claims against Edward Puerschner and Captain Maxwell because Crichlow had not corrected the deficiencies that had led to their earlier dismissal.

The court ordered service of the second amended complaint on ten newly identified defendants: Dr. Korobkova, Dr. R. Skseveland, Dr. Wolf, Sgt. Fuller, Sgt. R. Askew, C.O. Moshier, C.O. Buchanan, C.O. K. Layton, RN Darbee, and Dr. Guzman. Because Crichlow was still allowed to proceed without paying the filing fee upfront, the court directed the U.S. Marshals Service to carry out service. The court extended the service period until 90 days after summonses were issued for those defendants.

The sixteen defendants who had already been served were ordered to respond to the second amended complaint within 30 days of the order. The ten newly identified defendants and, to the extent they had not already done so, the sixteen previously served defendants were directed to respond to specified prisoner-case discovery requests under Local Civil Rule 33.2 within the deadlines stated in the order.

The court directed the Attorney General of the State of New York to identify two unnamed defendants referred to as Nurse(L) and Nurse II Jane Doe, provide their service addresses and, if appropriate, badge numbers, and give that information to Crichlow and the court within 60 days. The court said the defendants’ names could later be substituted into the case if they were identified.

Preliminary injunction

Crichlow sought a preliminary injunction, meaning a temporary court order issued before the case is finally decided. He asked to be removed from the Special Housing Unit at Five Points Correctional Facility, transferred to Sing Sing Correctional Facility, and given accommodations involving a special diet and his alleged hearing disability.

The defendants argued that Crichlow had received treatment from outside specialists and facility medical staff, as well as hearing aids, a hearing-impaired sign, a shake-awake alarm, and headphones. The court held that Crichlow’s allegations at this early stage did not show either a likelihood of success on his claims or sufficiently serious questions combined with a balance of hardships favoring him. The court therefore denied the preliminary-injunction application without prejudice to a later application for the same type of relief.

Disposition

The court denied the defendants’ request to revoke Crichlow’s permission to proceed without paying the filing fee upfront. It denied Crichlow’s preliminary-injunction application without prejudice, dismissed the claims against Rachel Herzog, C.O. S. William, Edward Puerschner, and Captain Maxwell, and ordered service and responses concerning the remaining defendants as described above. The court also stated that any appeal would not be taken in good faith and denied permission to proceed without paying the filing fee for purposes of an appeal.