08-0789-pr
Abascal v. Jarkos
                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER

RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUM M ARY
ORDERS FILED AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY THIS COURT’S
LOCAL RULE 32.1 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER
PAPER IN W HICH A LITIGANT CITES A SUM M ARY ORDER, IN EACH PARAGRAPH IN W HICH A
CITATION APPEARS, AT LEAST ONE CITATION M UST EITHER BE TO THE FEDERAL APPENDIX OR
BE ACCOM PANIED BY THE NOTATION: “(SUM M ARY ORDER).” A PARTY CITING A SUM M ARY
ORDER M UST SERVE A COPY OF THAT SUM M ARY ORDER TOGETHER W ITH THE PAPER IN
W HICH THE SUM M ARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED BY COUNSEL
UNLESS THE SUM M ARY ORDER IS AVAILABLE IN AN ELECTRONIC D ATABASE W HICH IS
PUBLICLY ACCESSIBLE W ITHOUT PAYM ENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT
HTTP://W W W .CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY
OF THE ORDER ON SUCH A DATABASE, THE CITATIO N M UST INCLUDE REFERENCE TO THAT
DATABASE AND THE DOCKET NUM BER OF THE CASE IN W HICH THE ORDER W AS ENTERED.


      At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
York, on the 21 st day of December , two thousand nine.

PRESENT:         JOHN M. WALKER, JR.,
                 REENA RAGGI,
                                          Circuit Judges,
                                      *
                 JED S. RAKOFF,
                                          District Judge.
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ISIDRO ABASCAL,

                                         Plaintiff-Appellant,
                         v.                                           No. 08-0789-pr

STEVE JARKOS, Psychologist, sued in his individual
and official capacity, P. TATUM, Psychologist,
sued in his individual and official capacity,
H.D. GRAHAM, Deputy Superintendent of Security,
sued in his individual and official capacity, GARY
H. FILION, Superintendent, sued in individual and
official capacity, CAROL GOODMAN, RN Therapist,
sued in individual and official capacity, W. LAPE,
Acting Superintendent, sued in individual and


          *
         District Judge Jed S. Rakoff of the United States District Court for the Southern
District of New York, sitting by designation.
official capacity, FRANTZ MUSE, M.D. Assistant
Psychiatrist, sued in individual and official
capacity, H.E. SMITH, Executive Director, sued in
individual and official capacity, JOHN BURGE,
Superintendent, sued in individual and official
capacity, JAMES L. STONE, Commissioner of Office
of Mental Health, sued in individual and official
capacity, GLENN S. GOORD, Commissioner of
Department of Correctional Services, sued in
individual and official capacity, JAMES T. CONWAY,
Superintendent, sued in individual and official
capacity,

                                         Defendants,

BRYAN HILTON, Psychologist, sued in his individual
and official capacity, MITCHELL LANGBART, MD,
sued in individual and official capacity,

                                          Defendants-Appellee.
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APPEARING FOR APPELLANT:                          ISIDRO ABASCAL, pro se, New York, New
                                                  York.

FOR APPELLEES:                                    Andrew M. Cuomo, Attorney General of the State
                                                  of New York, Barbara D. Underwood, Solicitor
                                                  General, Andrea Oser, Deputy Solicitor General,
                                                  Andrew B. Ayers, Assistant Solicitor General,
                                                  Albany, New York.


        Appeal from the United States District Court for the Northern District of New York

(Lawrence E. Kahn, Judge).

        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the district court’s January 30, 2008 judgment is AFFIRMED.

        Plaintiff Isidro Abascal appeals pro se from the dismissal of his complaint charging

various prison doctors and officials under 42 U.S.C. § 1983 with violations of his


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constitutional rights. “We review de novo a district court’s dismissal of a complaint pursuant

to Rule 12(b)(6), construing the complaint liberally, accepting all factual allegations in the

complaint as true, and drawing all reasonable inferences in the plaintiff’s favor.” Chambers

v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). We also review de novo a district

court’s sua sponte dismissal under 28 U.S.C. § 1915(e). See Giano v. Goord, 250 F.3d 146,

149-50 (2d Cir. 2001). In applying these standards, we assume the parties’ familiarity with

the facts and the record of prior proceedings, which we reference only as necessary to explain

our decision to affirm.1

       1.     Section 1915(e) Dismissal

       Abascal challenges the district court’s § 1915(e) dismissal of his claim that defendants

were deliberately indifferent to his health and safety in using high-tech equipment to cause

him pain and injury. Under § 1915(e), a court may sua sponte dismiss claims that “lack[] an

arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989).

Where the factual allegations supporting a claim describe fantastic or “delusional scenarios,”

the claims are properly dismissed as “clearly baseless.” Id. at 327-28; see also Denton v.

Hernandez, 504 U.S. 25, 31-32 (1992). On its face, Abascal’s contention that defendants

used high-tech equipment to control his thoughts and behavior and remotely to inflict pain


       1
         We note that by failing to address the issue in his brief, Abascal has abandoned any
challenge to the district court’s dismissal of his claims against defendant Langbart for failure
to serve, see Fed. R. Civ. P. 4(m), and, in the alternative, for failure to comply with the
district court’s November 6, 2006 order, see Fed. R. Civ. P. 16(f); LoSacco v. City of
Middletown, 71 F.3d 88, 92-93 (2d Cir. 1995). Accordingly, we do not address that ruling
in this order.

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can be considered nothing other than fantastic or delusional. Accordingly, the district court

correctly ordered § 1915(e) dismissal.

       2.     Time-Barred Claims

       Abascal faults the district court’s dismissal of various claims as time-barred, invoking

the continuing violation theory. A claimant asserting a continuing violation “must allege

both the existence of an ongoing policy of discrimination and some non-time-barred acts

taken in furtherance of that policy.” Harris v. City of New York, 186 F.3d 243, 250 (2d Cir.

1999); see Shomo v. City of New York, 579 F.3d 176, 182 (2d Cir. 2009) (concluding that

continuing violation theory may be applied to deliberate indifference claims). Here, the only

conceivably ongoing policies alleged by Abascal are the previously discussed use of mind-

altering high-tech equipment and sexual provocation by female staff members. Because the

former claims lack an arguable basis in fact, they were properly dismissed regardless of

whether they might be deemed timely on a continuing violation theory. We need not decide

whether Abascal’s sexual provocation allegations state a continuing violation because

Abascal has not alleged that the defendants named in his complaints, much less Hilton, were

personally involved in, or responsible for, that provocation. See Wright v. Smith, 21 F.3d

496, 501 (2d Cir. 1994) (“[P]ersonal involvement of defendants in alleged constitutional

deprivations is a prerequisite to an award of damages under § 1983.” (internal quotation

marks omitted)). Accordingly, Abascal’s reliance on the continuing violation theory does

not save these claims from dismissal.




                                              4
       3.       Constitutional Challenges to the Conditions of Confinement

       Equally unavailing is Abascal’s challenge to the district court’s dismissal of his

various constitutional claims against Hilton for arbitrarily classifying him as mentally ill,

transferring him to Central New York Psychiatric Center, and placing him in a “strip cell.”

       Whether pursued as Eighth Amendment challenges to the conditions of his

confinement, Fourteenth Amendment due process claims, or First Amendment claims for

retaliation, these claims were properly dismissed because Abascal failed to plead facts

showing Hilton’s personal involvement in the complained-of transfer or strip-cell placement.

See Wright v. Smith, 21 F.3d at 501. Moreover, even assuming that Abascal’s letter-writing

is “protected speech” under the First Amendment, his retaliation claim fails because he

alleges no facts permitting a conclusion that the complained-of actions were “adverse” in

light of his own description of his mental condition in his complaint. See Davis v. Goord,

320 F.3d 346, 353 (2d Cir. 2003) (discussing adverse action requirement of retaliation

claim); see also, e.g., Compl. ¶ 12 (describing “waking visions” and belief that “mind was

being read”).

       4.       Equal Protection Claim

       Abascal contends that the district court erred in applying rational basis review rather

than heightened scrutiny to his equal protection claims based on his status as a Mariel Cuban.

The point merits little discussion. Abascal has not alleged any facts that could support a

finding of disparate treatment, much less intentional discrimination, based on his status as

a Mariel Cuban. Accordingly, his equal protection claim was properly dismissed.



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      5.     Venue

      We need not here decide whether the district court should have transferred rather than

dismissed Abascal’s claims arising out of events occurring in the Western District of New

York. A transfer now would be duplicative because Abascal has already commenced an

action in the Western District against defendant Conway and others for the alleged wrongs.

      6.     Conclusion

      We have considered Abascal’s remaining arguments and conclude that they are

without merit. Accordingly, we AFFIRM the judgment of the district court.

                                  FOR THE COURT:
                                  CATHERINE O’HAGAN WOLFE, Clerk of Court


                                  By:




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