     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 SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
 7   SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY
 8   FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. W HEN
 9   CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY M UST CITE
10   EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION
11   “SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST 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 27th day of April, two thousand ten.
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


             *
              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.
 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 requests for 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 any material 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


                                                       2
 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 his religious 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 of the 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




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