At the time this case was submitted, Judge Chin was a member of the United States *

District Court for the Southern District of New York, sitting by designation. 

08-2228-pr 

Smith v. Goord

1 UNITED STATES COURT OF APPEALS

2 FOR THE SECOND CIRCUIT

3

4 SUMMARY ORDER

5

6 RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A

7 SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY

8 FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN

9 CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE

10 EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION

11 “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY

12 PARTY NOT REPRESENTED BY COUNSEL.

13

14 At a stated term of the United States Court of Appeals for the Second Circuit, held

15 at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of

16 New York, on the 27 day of April, two thousand ten. th

17

18 PRESENT:

19 BARRINGTON D. PARKER,

20 DEBRA ANN LIVINGSTON,

21 DENNY CHIN,*

22 Circuit Judges.

23 _______________________________________________

24

25 RANDOLPH SMITH, 

26

27 Plaintiff-Appellant,

28

29

30 v. (No. 08-2228-pr)

31

32 GLENN GOORD, Commissioner, Department of Correctional Services,

33

34 Defendant-Appellee.

35

36 ______________________________________________

37

38 FOR PLAINTIFF-APPELLANT: Randolph Smith, pro se, Beacon, New York

39

40 FOR DEFENDANT-APPELLEE: Rajit S. Dosanjh, Assistant Solicitor General
2

1 (Barbara D. Underwood, Solicitor General;

2 Andrea Oser, Deputy Solicitor General, on

3 the brief), for Andrew M. Cuomo, Attorney

4 General of the State of New York, Albany,

5 New York

6

7 UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED AND

8 DECREED that the judgment of the district court is AFFIRMED with respect to the claims against

9 Appellee, and REMANDED with instructions to the district court to allow Appellant to amend his

10 complaint. 

11 Plaintiff-Appellant Randolph Smith, pro se and incarcerated, appeals from a judgment of the

12 United States District Court for the Northern District of New York (Scullin, J.), granting summary

13 judgment in favor of Defendant-Appellee Commissioner Glenn Goord on Appellant’s 42 U.S.C.

14 § 1983 claims and denying Appellant’s requestsfor discovery and for leave to amend his complaint.

15 We assume the parties’ familiarity with the facts, procedural history, and issues presented for review.

16 We review orders granting summary judgment de novo and focus on whether the district

17 court properly concluded that there was no genuine issue as to anymaterial fact and the moving party

18 was entitled to judgment as a matter of law. Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292,

19 300 (2d Cir. 2003). We conclude, for substantially the reasons stated by the district court, that

20 Appellant did not demonstrate the existence of a question of fact as to the personal involvement of

21 Appellee in the alleged constitutional violation. See Sealey v. Giltner, 116 F.3d 47, 51 (2d Cir.

22 1997) (prisoner failed to establish the requisite personal involvement of Department of Correctional

23 Services Commissioner to whom he had written letters of complaint, one of which Commissioner

24 referred for investigation). 

25 We review the denial of a motion for leave to amend the complaint for abuse of discretion.

26 See Nettis v. Levitt, 241 F.3d 186, 192 (2d Cir. 2001), overruled in part on other grounds by Slayton

27 v. Am. Express Co., 460 F.3d 215 (2d Cir. 2006). Fed. R. Civ. P. 15(a) instructs that leave to amend

28 should be “freely give[n] . . . when justice so requires.” Fed. R. Civ. P. 15(a)(2). Moreover, “[a] pro
3

1 se complaint is to be read liberally” and a district court generally should not dismiss pro se

2 complaints without granting leave to amend at least once when a liberal reading of the complaint

3 “gives any indication that a valid claim might be stated.” Shomo v. City of N.Y., 579 F.3d 176, 183

4 (2d Cir. 2009) (quoting Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999) (per

5 curiam)) (internal quotation marks omitted). 

6 Here, Appellant may have set forth a valid § 1983 claim against individual staff members at

7 Great Meadow Correctional Facility, who he asserts failed to provide him with an alternative means

8 of tuberculosis testing consistent with hisreligious practices and instead placed him in confinement.

9 Because we cannot determine on the face of the complaint that granting leave to amend in this case

10 would be futile, see, e.g., Fulton v. Goord, 591 F.3d 37, 45 (2d Cir. 2009), we accordingly remand

11 the case to the district court to allow Appellant to amend his complaint. We express no views on

12 whether any potential claims Appellant may have against defendants other than Commissioner

13 Goord would have merit. 

14 For the foregoing reasons, the judgment ofthe district court dismissing the complaint (which

15 named only Appellee Goord as a defendant) is AFFIRMED. The case is REMANDED to allow

16 Appellant to amend his complaint. 

17

18 FOR THE COURT:

19 Catherine O’Hagan Wolfe, Clerk

20

21