Mejias v. Flint et al

1
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________________________________________
Alex Mejias
Plaintiff,
v. 9:25-CV-528
(BKS/MJK)
C.O. Flint, et. al.
Defendant.
_____________________________________________________________________
Alex Mejias, Plaintiff, pro se
Aimee Cowan, Esq., Asst. Attorney General, for Defendants
Mitchell J. Katz, United States Magistrate Judge
To the Honorable Brenda K. Sannes, Chief U.S. District Court Judge:
REPORT-RECOMMENDATION
Chief United States District Court Judge Brenda K. Sannes
referred Defendant Bernie Thorpe’s Fed. R. Civ. P. 12(b)(6) motion to
the Court for report and recommendation.1 In this pro se civil rights
action, Mejias alleges that Thorpe and C.O. Flint violated his Eighth
Amendment rights when C.O. Flint ran a fight club at Marcy
Correctional Facility. For the following reasons, this Court recommends
granting Thorpe’s motion to dismiss.
1 The District Court has the authority to refer dispositive motions to this Court
under 28 U.S.C. § 636(b) and N.D.N.Y. Local Rule 72.3(c).
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I. BACKGROUND
A. Facts
On January 12, 2025, Marcy Correctional Facility’s newly-
appointed superintendent, Bernie Thorpe, walked through the mess
hall and greeted the correctional officers. (Complaint, Dkt. 1, at pg. 5).2
Later that day, incarcerated individual Bradley Werner told Thorpe
that “C.O. Flint had removed his body cam to talk to the dorm and that
[Flint] uses the bathroom as a fight club.” (Id.) (cleaned up).
On February 4, 2025, Donnie Bailey, an incarcerated individual,
called Mejias into the bathroom to talk. (Complaint, Dkt. 1, at pg. 6).
When Mejias entered the bathroom, Bailey punched Mejias and then
sliced his ear with a “gold metal” item. (Id.). Bailey assaulted Mejias
because “the prison gangs wanted to see if . . . Mejias had the
street/prison drug called Deuce,” and “the main prison drug Deuce
dealer . . . was trying to protect his market.” (Id.).
At the same time, Werner saw Flint while walking back from the
law library. (Id. at pg. 5). Both men saw “many incarcerated individuals
were standing around watching what was going on in the bathroom.”
2 All page references are to the Administrative Transcript (“T.”) and not the page
numbers assigned by the CM/ECF pagination system.
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(Id.). Werner approached another incarcerated individual, asked what
was going on, and the individual said, “Flint told the inmates to take
care of it themselves.” (Id.).
Werner walked into the bathroom and saw Bailey’s “right hand
holding a prison made shank in it, in the pose after striking a person.”
(Id.). Werner also saw “Mejias . . . holding his left ear and blood all over
his face and hand.” (Id.). Sometime after this altercation, Werner asked
Mejias “you are still here?” (Id.).
B. Procedural History
Mejias began this lawsuit by filing a Complaint and moving for
leave to proceed in forma pauperis. (Dkts. 1, 2). Chief Judge Sannes
reviewed the Complaint, determined that Mejias’s deliberate-
indifference-to-safety/failure-to-protect claims against Thorpe and Flint
survived, and dismissed all other claims. (Dkt. 3).3 Now, Thorpe, alone,
moves to dismiss Mejias’s deliberate-indifference-to-safety claim. (Dkt.
15). On October 20, 2025, Meijas notified that the Court that he did not
receive Thorpe’s motion to dismiss, so the Court sent him a copy of the
3 Reviewing the District Court’s initial review, the Court notes that the District
Court is aware that Mejias, the plaintiff, did not draft the Complaint. (Dkt. 4, at
pgs. 2-4). Because the District Court is aware of this, and did not dismiss the
Complaint on those grounds, the Court treats the Complaint as if Mejias wrote it.
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motion. Mejias reviewed Thorpe’s motion to dismiss and advised the
Court that he did not want to respond (Dkt. 21). The Court now reviews
the motion.
II. STANDARD OF REVIEW
Fed. R. Civ. P. Rule 12(b)(6)
Although Complaints do “not need detailed factual allegations” to
survive a motion to dismiss, “a plaintiff’s obligation to provide the
grounds of his entitlement to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of
action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(internal quotation omitted). Indeed, Rule 8 of the Federal Rules of Civil
Procedure “demands more than the unadorned, the-defendant-
unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S.662, 678
(2009). Complaints which “tender[] naked assertions devoid of further
factual enhancement” will not suffice. Id. Rather, a complaint’s “factual
allegations must be enough to raise a right to relief above the
speculative level.” Twombly, 550 U.S. at 555 (cleaned up).
When ruling on a defendant’s motion to dismiss, all factual
allegations contained in the complaint must be accepted as true and all
reasonable inferences must be drawn in favor of the plaintiff. Koch v.
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Christie’s Int’l PLC, 699 F.3d 141, 145 (2d Cir. 2012)). But “the tenet
that a court must accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions.” Twombly, 550 U.S. at
155. Additionally, “in adjudicating a Rule 12(b)(6) motion, a district
court must confine its consideration to facts stated on the face of the
complaint, in documents appended to the complaint or incorporated in
the complaint by reference, and to matters of which judicial notice may
be taken.” Leonard F. v. Isr. Disc. Bank of New York, 199 F.3d 99, 107
(2d Cir. 1999) (cleaned up).
III. DISCUSSION
The Court should dismiss Mejias’s Complaint because
it is silent as to whether Thorpe failed to take
reasonable measures to abate the harm to Mejias.
This Court recommends the District Court grant Thorpe’s motion
to dismiss. To sustain an Eighth Amendment deliberate-indifference-to-
safety claim, plaintiffs must plausibly allege three elements: (1) they
are incarcerated under conditions posing a substantial risk of serious
harm; (2) the defendant knew that the plaintiff faced a substantial risk
of serious harm, and (3) the defendant disregarded that risk by failing
to take reasonable measures to abate the harm. Hayes v. New York City
Dep’t of Corr., 84 F.3d 614, 620 (2d Cir. 1996). Here, Mejias alleges
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nothing that can be construed as Thorpe disregarding the substantial
risk of serious harm to Mejias. In consequence, the Court should grant
Thorpe’s motion to dismiss.
* * *
“The Eighth Amendment requires prison officials to take
reasonable measures to guarantee the safety of inmates in their
custody.” Id. “Prison officials are liable for harm incurred by an inmate
if the officials acted with deliberate indifference to the safety of the
inmate.” Id. (cleaned up). The deliberate indifference standard “includes
both subjective and objective components.” Mallet v. New York State
Dep’t of Corr. & Cmty. Supervision, 126 F.4th 125, 132 (2d Cir. 2025)
(quotation omitted).
To satisfy the objective prong, plaintiffs must plausibly allege that
they are “incarcerated under conditions posing a substantial risk of
serious harm.” Hayes, 84 F.3d at 620. (citing Farmer v. Brennan, 511
U.S. 825, 834 (1994)). “The objective prong can be satisfied even where
no serious physical injury results.” Randle v. Alexander, 960 F. Supp. 2d
457, 473 (S.D.N.Y. 2013) (cleaned up). Indeed, the focus of the objective
prong inquiry is “not the extent of the physical injuries sustained in an
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attack, but rather the existence of a ‘substantial risk of serious harm.’”
Id.
To satisfy the subjective prong, plaintiffs must plausibly allege
that (1) the prison official knew that the plaintiff faced “a substantial
risk of serious harm and [(2) the prison official] disregard[ed] that risk
by failing to take reasonable measures to abate the harm.” Hayes, 84
F.3d at 620. “Mere negligence by a prison officer does not establish a
claim for deliberate indifference to prisoner’s safety.” Fernandez v.
N.Y.C. Dep’t of Corr., No. 8-CV-42494, 2010 WL 1222017, at *4
(S.D.N.Y. Mar. 29, 2010) (internal quotation and citation omitted).
Taking the objective prong first, Mejias plausibly alleges that he is
incarcerated under conditions posing a substantial risk of serious harm.
“Intentionally exposing an [incarcerated individual] to the risk of harm
with no penological purpose is indicative of deliberate indifference to
the [incarcerated person’s] safety at best and manifests an intent to
harm the inmate at worst, thus constituting cruel and unusual
punishment in violation of the Eighth Amendment to the U.S.
Constitution.” Smolen v. Brown, No. 18-CV-7621, 2023 WL 6199094, at
*9 (S.D.N.Y. Sept. 22, 2023). And a fight club—where prison officials
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allow incarcerated individuals to fight each other—is a condition posing
a substantial risk of serious harm. See, e.g., Randle, 960 F. Supp. 2d at
474 (finding the objective prong satisfied where the plaintiff alleged
that prison officials forced incarcerated individuals to fight) (collecting
cases).
The District Court should reject any argument Thorpe makes that
what occurred is not a fight club. To be sure, the Complaint does not
allege that Thorpe forced Mejias and Bailey to fight and he received
money because of their match—the common understanding of a fight
club. See id. But the Complaint uses the phrase “fight club”, and alleges
that Flint knew the fight was going to happen (“Flint told the inmates
to take care of it themselves”), Flint allowed the fight to happen (Bailey
punched Mejias and then sliced his ear with a “gold metal” item), and
Flint wanted harm to befall Mejias (Werner asked Mejias “you are still
here?”). (Complaint, Dkt. 1, at pgs. 5-6). All in all, this is something
more than a surprise attack. So the Court views the Complaint as
alleging something closer to a forced fight. See Sealed Plaintiff v. Sealed
Defendant, 537 F.3d 185, 191 (2d Cir. 2008) (“On occasions too
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numerous to count, [the Second Circuit] ha[s] reminded district courts”
that a pro se plaintiff's pleadings must be construed liberally).
Moving to the subjective prong, the first issue is whether Thorpe
knew about the fight club. The answer is yes. Mejias pleads that
Bradley Werner informed Thorpe that Flint “uses the bathroom as a
fight club.” (Complaint, Dkt. 1, pg. 5) (cleaned up). So Thorpe was
aware of the fight club. See Harrison v. Traylor, No. 17-CV-6678, 2019
WL 120774, at *6 (S.D.N.Y. Jan. 7, 2019) (requiring “prison officials
ha[ve] tangible notice”).
Thorpe does not adequately address this point. Arguing that he
did not have actual knowledge, Thorpe claims Mejias’s pleading is
insufficient because he does not plead that Thorpe knew that
incarcerated individuals at Marcy attack each other in the way Bailey
attacked Mejias. But this argument fails for three reasons.
First, the District Court should reject the proposition that only
prior altercations can establish knowledge. True, the case law indicates
that prior altercations or threats between a plaintiff and incarcerated
individuals are a condition precedent to similar claims. See, e.g.,
Thomas v. Demeo, 15-CV-372659, 2017 WL 3726759, at *8 (S.D.N.Y.
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2017) (requiring that a plaintiff allege that defendant officers “knew of
a prior altercation between the plaintiff and his attacker, or of threats
that had been made against the plaintiff”); See also Smollen, 2023 WL
6199094, at *9 (collecting cases). But requiring prior altercations as the
only way to establish actual notice makes no sense. For example, a
plaintiff would have no recourse against a superintendent in the
following hypothetical: a correction officer, hoping to solicit workers,
tells the plaintiff that the officer is selling drugs in a prison; the
plaintiff reports the drug sales to the superintendent; the
superintendent tells the officer that the plaintiff told them about the
drug sales, and the officer attacks the plaintiff, despite the absence of
any prior altercation. Knowledge means what it has always meant:
awareness of a situation. Cf. Gorrio v. Shorter, No. 23-CV-4807, 2024
WL 2188910, at *5 (E.D. Pa. May 15, 2024) (dismissing the deliberate
indifference to safety claim against the superintendent because “[t]here
are no factual allegations suggesting that” the superintendent
“participated in, knew of, or had any reason to know of the ‘fight club’
that was allegedly being run on M-Unit during the relevant two or three
day period in August, which is fatal to Mr. Gorrio’s claim[] . . .”). If that
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awareness comes from the superintendent being told that there is a
corrections officer running a fight club, that must be enough at this
early stage. Cf. Fernandez, 2010 WL 1222017, at *4 (S.D.N.Y. 2010)
(“Absent clear notice of a risk of harm to the prisoner, ‘[c]ourts routinely
deny deliberate indifference claims based upon surprise attacks.’”
(internal citation omitted)).
Second, Thorpe’s argument ignores Twombly, Iqbal, and the Rule
12(b)(6) standard. At this stage—where the allegations in the pleading
are accepted as true—Mejias’s allegation that Werner told Thorpe about
the fight club is sufficient for “the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Iqbal,
556 U.S. at 678.
Third, Thorpe’s argument relies on a misreading of Mejias’s
Complaint and the deliberate indifference standard. The serious risk
that Mejias is complaining of is not a random attack; rather it is that he
was forced to fight to defend himself even though Flint was aware of the
attack. In fact, Mejias’s Complaint alleges, that “Flint told the inmates
to take care of it themselves,” and “Flint was turning a blind eye and
allowing the bathroom to be used as a fight club.” (Complaint, Dkt. 1, at
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pg. 5). During the fight club, Donnie Bailey sliced Mejias’s left ear. (Id.).
Yet not far from bathroom, Flint watched. See (id.) (“From the day room
the line of sight was clearly visible to both C.O. Flint and [Werner].
Many incarcerated individuals were standing around watching what
was going on in the bathroom.”). This fight was not the random attack
Thorpe frames it as. And because it was not a random fight, Mejias did
not need to plead that Thorpe was aware of attacks similar to Bailey’s
attack on Mejias. He needed to plead that Thorpe had actual notice of
the fight club, and Mejias did so.
* * *
The District Court should find that Mejias satisfied the first
element of the subjective standard. Accepting the pleading as true,
Werner told Thorpe about the fight club, on January 12, 2025. Less
than three weeks later, Bailey sliced Mejias as part of this fight club.
That must be enough for Mejias to plausibly allege that Thorpe was
aware of a substantial risk of serious harm. See Burgos v. Hopkins, 14
F.3d 787, 790 (2d Cir. 1994) (“[W]e read [a pro se litigant's] supporting
papers liberally, and will interpret them to raise the strongest
arguments that they suggest.”).
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* * *
But Mejias’s Complaint does not plausibly allege that Thorpe
consciously disregarded the risk by failing to take reasonable measures
to abate the harm. The Complaint is silent as to what Thorpe did or did
not do with respect to the fight club. Worse yet, Mejias’s Complaint does
not mention Thorpe after alleging that Werner told Thorpe about the
fight club. (Complaint, Dkt. 1, at pgs. 5-9). That silence is fatal to this
claim. See Hayes, 84 F.3d at 620 (noting that incarcerated individuals
“must allege actions or omissions sufficient to demonstrate deliberate
indifference”); see also Tangretti v. Bachmann, 983 F.3d 209, 618 (2d
Cir. 2020) (holding that plaintiffs “must plead and prove that each
Government-official defendant, including supervisors, through the
official's own individual actions, has violated the Constitution.” (cleaned
up)). And because Mejias’s Complaint does not plausibly allege that
Thorpe consciously disregarded the substantial risk Mejias faced, the
District Court should grant Thorpe’s motion to dismiss.
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V. CONCLUSION
WHEREFORE, based on the findings above, it is
RECOMMENDED, that the District Court GRANT Thorpe’s
motion to dismiss (Dkt. 15) as to Mejias’s Eighth Amendment
deliberate-indifference claim against Thorpe; and it is further
ORDERED that the Clerk provide Plaintiff with copies of the
unpublished decisions cited herein in accordance with Lebron v.
Sanders, 557 F.3d 76 (2d Cir. 2008) (per curiam).
In accordance with 28 U.S.C. § 636(b)(1), the parties have fourteen
days within which to file written objections to the foregoing report. Such
objections shall be filed with the Clerk of the Court. FAILURE TO
OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL
PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85
(2d Cir. 1993) (citing Small v. Sec’y of Health and Human Servs., 892
F.2d 15 (2d Cir. 1989) (per curiam)); 28 U.S.C. § 636(b)(1) (Supp. 2013);
Fed. R. Civ. P. 72, 6(a).
Dated: January 27, 2026
_______________________
Hon. Mitchell J. Katz
U.S. Magistrate Judge
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Fernandez v. New York City Dept. of Correction, Not Reported in F.Supp.2d (2010)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
KeyCite Yellow Flag
Distinguished by Taylor v. City of New York, S.D.N.Y., March 27, 2018
2010 WL 1222017
Only the Westlaw citation is currently available.
This decision was reviewed by West editorial staff and not assigned editorial enhancements.
United States District Court,
S.D. New York.
Larry FERNANDEZ, Plaintiff,
v.
NEW YORK CITY DEPARTMENT OF CORRECTION, Warden Robert Shaw,
Correction Captain John Doe, and Correction Officer Thornton, Defendants.
No. 08 CV 4294(KMW).
|
March 29, 2010.
OPINION AND ORDER
KIMBA M. WOOD, District Judge.
*1 Plaintiff Larry Fernandez, proceeding pro se, brings this action pursuant to 42 U.S.C. § 1983. Plaintiff alleges that, while
incarnated at Rikers Island, he suffered a fractured jaw as a result of an assault by another inmate. Plaintiff claims that Defendants
New York City Department of Correction (“DOC”), Warden Robert Shaw, Correction Captain “John Doe,” and Correction
Officer Thornton (“Defendants”) failed to protect him from the assault, and failed to attend to his medical needs, in violation
of the Eighth and Fourteenth Amendments.
Defendants DOC and Warden Shaw move to dismiss the complaint pursuant Rule 12(b)(6) of the Federal Rules of Civil
Procedure on the grounds that (1) Plaintiff fails to state a claim for deliberate indifference to his safety under § 1983; (2) Plaintiff
fails to state a claim for deliberate indifference to his medical needs under § 1983; (3) Plaintiff's claims against Warden Shaw
must be dismissed because he was not personally involved in the alleged deprivations; (4) Plaintiff's claims against DOC must
be dismissed because DOC is not a suable entity; (5) to the extent Plaintiff's Complaint is construed to name the City of New
York as a defendant, Plaintiff has failed to state a Monell claim for municipal liability; and finally (6) Plaintiff's claims must
be dismissed, in any event, because he failed to exhaust administrative remedies as required by Section 1997e(a) of the Prison
Litigation Reform Act (“PLRA”).
For the reasons discussed below, the Court GRANTS Defendants' motion to dismiss. Specifically, the Court concludes that (1)
Plaintiff fails to state a clam for deliberate indifference to his safety; (2) Plaintiff fails to state a claim for deliberate indifference
to his medical needs; (3) Plaintiff's claims against Warden Shaw must also be dismissed for lack of personal involvement; and
(4) Plaintiff fails to state a claim for municipal liability against either DOC or the City. 1 As set forth in greater detail below, the
Court dismisses Plaintiff's claims without prejudice. If Plaintiff wishes to continue this action, Plaintiff shall file an amended
complaint not later than May 26, 2010.
BACKGROUND
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Fernandez v. New York City Dept. of Correction, Not Reported in F.Supp.2d (2010)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 2
I. Factual Allegations
Plaintiff alleges that, on or about December 24, 2005, he was incarcerated at the Vernon C. Bain Correction Center (“VCBC”)
on Rikers Island. Plaintiff alleges that, at approximately 2:00 p.m., he was brushing his teeth in the bathroom of the “dorm” area,
when another inmate, Simmon Elliot, “[c]rept up [ ] behi[n]d[ ]” him, and began punching him in the jaw with a closed fist. 2
(Compl.¶ II.) Plaintiff alleges that, at the time of the assault, no officers were monitoring the dorm area (which the complaint
refers to as station “B”). Plaintiff alleges that Correction Officer “Thornton” was at another station (station “A”), where she was
“joking around with [ ]other officers.” (Id.) Plaintiff alleges that when Officer Thornton saw the altercation between Plaintiff and
inmate Simmons, she came to the dorm area, separated Plaintiff from inmate Simmons, and “after a couple of hours” removed
inmate Simmons from the dorm area. 3 (Id.) Plaintiff alleges that, at around 8:15 p.m., he noticed that his face “had started to
swell up,” and that he then requested medical attention. Plaintiff alleges that the officer on duty called a captain, and that the
captain sent Plaintiff to the medical clinic. The doctors at the clinic informed Plaintiff that his jawbone was fractured. (Id.)
*2 Plaintiff alleges that he was taken to Bellevue hospital where he underwent surgery to repair his jaw. (Id.) Plaintiff alleges
that, on or about December 28, 2005, Plaintiff was released from Bellevue hospital and taken back to Rikers Island. Plaintiff
alleges that he was unable to eat for “a couple of days” because his “mouth was wired shut.” (Id.) Plaintiff claims that, for the
remainder of his stay at Rikers Island, he “never received medical treatment [ ]or medication,” and that he was not transferred
to a “medical facility to receive proper medical care.” (Id.)
Finally, Plaintiff states that he never filed a grievance at the prison because he did not understand prison rules and “did not
know about Grievance or law.” (Id. ¶ IV, E, F.)
II. Procedural History
On May 7, 2008, Plaintiff brought this action pursuant to 42 U.S.C. § 1983, alleging a deprivation of his civil rights under the
Eighth and Fourteenth Amendments. (Dkt. No. 2.) Plaintiff seeks an award, from each defendant, of $1500 per month for six
years “for negligence of Plaintiff's safety.” Plaintiff also seeks an award, from the DOC, of $8 million for pain and suffering.
(Compl.¶ V.)
On March 9, 2010, Plaintiff served his summons and complaint on DOC and Warden Shaw. By order dated April 7, 2009,
Magistrate Judge Ellis granted defendants DOC and Warden Shaw an extension of time until June 1, 2009 to answer or otherwise
respond to the complaint. (Dkt. No. 10.) Magistrate Judge Ellis subsequently extended the deadline until July 22, 2009.
On July 22, 2009, Defendants DOC and Warden Shaw timely filed this motion to dismiss. Plaintiff's opposition was due on
August 21, 2009, and Defendants' reply, if any, was due September 4, 2009. Plaintiff did not submit anything in opposition, and
on September 9, 2009, Defendants requested that the court deem the motion fully submitted.
On October 1, 2009, this case was transferred from Judge Lynch to the undersigned. By order dated December 1, 2009, this
Court sua sponte extended the time for Plaintiff to file a response to January 15, 2010. Plaintiff did not submit anything in
opposition or request an extension of time. 4 Thus, the Court's decision on Defendants' motion to dismiss follows.
STANDARD OF REVIEW
For a complaint to survive a motion to dismiss pursuant to Rule 12(b)(6), the plaintiff must plead sufficient factual allegations
“to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167
L.Ed.2d 929 (2007). A claim is plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, --- U.S. ----, ----, 129 S.Ct. 1937, 1949, 173
L.Ed.2d 868 (2009). The Court must accept as true all well-pleaded factual allegations in the complaint, Twombly, 550 U.S. at
555, and “draw[ ] all inferences in the plaintiff's favor,” Allaire Corp. v. Okumus, 433 F.3d 248, 249-50 (2d Cir.2006). When
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Fernandez v. New York City Dept. of Correction, Not Reported in F.Supp.2d (2010)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 3
considering a motion to dismiss a pro se complaint, courts must construe the complaint liberally, and interpret it to raise the
strongest arguments that it suggests. See, e.g., Cruz v. Gomez, 202 F.3d 593, 597 (2d Cir.2000). “This is especially true when
dealing with civil rights complaints.” See Weinstein v. Albright, 261 F.3d 127, 132 (2d Cir.2001).
DISCUSSION
*3 The Court construes Plaintiff's complaint as raising two separate claims pursuant to § 1983:(1) a claim for deliberate
indifference to Plaintiff's safety based on the officials' failure to prevent the assault, and (2) a claim for deliberate indifference to
Plaintiff's medical needs based on the officials' failure to provide him any additional treatment at VCBC following the surgery
to repair his fractured jawbone. As set forth below, Plaintiff has not alleged facts that permit the Court to reasonably infer that
any officer or municipality is liable to Plaintiff for a violation of his civil rights.
I. § 1983 Claim For Deliberate Indifference to Prisoner's Safety
A. Legal Standards
“The Eighth Amendment requires prison officials to take reasonable measures to guarantee the safety of inmates in their
custody.” Hayes v. New York City Dep't of Corr., 84 F.3d 614, 620 (2d Cir.1996) (citing Farmer v. Brennan, 511 U.S. 825, 833,
114 S.Ct. 1970, 128 L.Ed.2d 811 (1994)). “Prison officials [thus] have a duty ... to protect prisoners from violence at the hands
of other prisoner.” Farmer, 511 U.S. at 833; see also id. at 834 (“Being violently assaulted in prison is simply not part of the
penalty that criminal offenders pay for their offenses against society.”) (internal quotation marks omitted).
However, “not ... every injury suffered by one prisoner at the hands of another” warrants imposition of constitutional liability
pursuant to § 1983. Id. Liability for such an injury is imposed only when the prison officials' actions or omissions demonstrate
“deliberate indifference” to the safety of the inmates in their custody. Hayes, 84 F.3d at 620.
Where, as here, a plaintiff's claim is based on a failure to prevent harm, the test for deliberate indifference is twofold: (1)
a plaintiff must first demonstrate that he is “incarcerated under conditions posing a substantial risk of serious harm”; (2) a
plaintiff must then demonstrate that the “defendant prison officials possessed sufficient culpable intent.” Id. A prison official
has sufficient culpable intent if he has knowledge that an inmate faces a substantial risk of serious harm, and he disregards that
risk by failing to take reasonable measures to abate the harm. Id.; see Farmer, 511 U.S. at 837 (explaining that this state of mind
is “more blameworthy than negligence” and is “equivalent to criminal recklessness”).
B. Application
1. Substantial Risk of Harm
Plaintiff argues that the absence of officers in the immediate vicinity of the dorm area (station-B) posed a substantial risk of
serious harm to inmate safety. Defendants argue that Plaintiff fails to explain how having an officer present could have prevented
the attack by inmate Simmons. (See Compl. ¶ 2 (alleging that Simmons “[c]rept up[ ] behi[n]d[ ]” him, and began punching
him in the jaw with a closed fist).) Defendants also argue that Officer Thornton's actions demonstrate that reasonable measures
were taken to protect inmates in the area according to the Complaint, when Officer Thornton saw the altercation, she came to
the area, separated inmate Simmons from Plaintiff, and, “after a couple of hours,” removed inmate Simmons from the dorm
area. See George v. Burton, No. 00-Civ-143 (NRB), 2001 WL 12010, at * 3 (S.D.N.Y. Jan. 4, 2001) (noting that conditions
posing a substantial risk of harm are present where “prison guards simply stand by and permit an attack to proceed”); see also
McGriff v. Coughlin, 640 F.Supp. 877, 880 (S.D.N.Y.1986) (Leval, J.) (“The Constitution does not guarantee an assault-free
prison environment; it promises only reasonable good faith protection.”)
*4 It is difficult to determine, on the present record, whether and to what extent the alleged failure to station an officer at
the dorm area contributed to a risk of harm to inmates at the facility. In this case, for example, it is possible that had Officer
Thornton been in the dorm area at the time of Simmons' attack, he could have prevented or interrupted the attack. Drawing all
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reasonable inferences in Plaintiff's favor, the Court finds that Plaintiff has alleged facts from which a court could reasonably
infer a substantial risk of serious harm. Plaintiff, however, has still failed to allege that any officer possessed sufficiently culpable
intent, which is required for a finding of liability under § 1983.
2. Sufficiently Culpable Intent
Plaintiff's complaint fails to state facts from which a court can reasonably infer that any officer at DOC had knowledge of a risk
to Plaintiff, and disregarded that risk by failing to take reasonable measures to protect Plaintiff's safety. Plaintiff has not pled,
for example, that he and inmate Simmons were involved in a prior altercation, that Simmons had previously threatened him,
or that there was any other reason for officers at DOC to be on notice that there was a risk of altercation between Plaintiff and
inmate Simmons. Absent clear notice of a risk of harm to the prisoner, “[c]ourts routinely deny deliberate indifference claims
based upon surprise attacks.” Zimmerman v. Macomber, No. 95 Civ. 882, 2001 WL 946383, at * 5 (S.D.N.Y. Aug.21, 2001);
see King v. Dep't of Corr. ., No. 95 Civ. 3057, 1998 WL 67669, at * 4 (S.D.N.Y.1998) (failure to protect inmate from isolated
attack did not sustain § 1983 claim).
Plaintiff does complain that, at the time of the assault, Officer Thornton was at another station “joking around” with other
officers. This allegation, however, at most supports a claim of negligence against Officer Thornton for failing to station herself
at her assigned area. 5 Mere negligence by a prison officer does not establish a claim for “deliberate indifference” to prisoner's
safety. Hayes, 84 F.3d at 620; see Zimmerman, 2001 WL 946383, at * 6 (holding that, where officer did not have knowledge of
substantial risk to inmate's safety, “his failure to station himself at the officer's desk does not raise a constitutional question”).
The facts as stated in Plaintiff's complaint thus do not support a finding of constitutional liability.
Accordingly, Plaintiff fails to state a claim for deliberate indifference to his safety.
II. § 1983 Claim For Deliberate Indifference to Prisoner's Medical Needs
A. Legal Standards
To establish a claim for deliberate indifference to a prisoner's medical needs, a prisoner must show that: (1) as an objective
matter, the alleged deprivation is “sufficiently serious”; and (2) as a subjective matter, that the “charged official [acted] with a
sufficiently culpable state of mind.” Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir.1996). In determining whether a condition
is sufficiently serious, courts consider factors such as “the existence of an injury that a reasonable medical doctor would find
important and worthy of comment or treatment; the presence of a medical condition that significantly affects an individual's
daily activities; or the existence of chronic and substantial pain.” Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir.1998). In
order for a prison official to possess a sufficiently culpable state of mind, he must know of, and disregard, an excessive risk to
an inmate's health or safety. Johnson v. Wright, 412 F.3d 398, 403 (2d Cir.2005); see Farmer, 511 U.S. at 837.
B. Application
*5 In this case, Plaintiff has failed to allege facts from which a court can reasonably infer that any prison official acted with
deliberate indifference to his medical needs. Plaintiff alleges, in sum, that upon returning from Bellevue for surgery on his jaw,
his mouth was kept wired shut, he could not eat for three days, and that he did not receive any additional medicine or treatment. 6
Plaintiff, however, has not alleged that he sought any additional treatment, that any additional treatment was required, or that
there was anything prison officials could or should have done to appropriately treat Plaintiff's post-surgery condition. Plaintiff
has failed to identify any prison official who was aware he needed treatment, or who denied him medical care after his release
from the hospital. 7 Thus, Plaintiff fails to state a claim for deliberate indifference to his medical needs.
III. Personal Involvement
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Defendants argue that Warden Shaw must be dismissed from the litigation for lack of “personal involvement” in the alleged
constitutional deprivations.
“It is well settled in this Circuit that personal involvement of defendants in alleged constitutional deprivations is a prerequisite
to an award of damages under § 1983.” Wright v. Smith, 21 F.3d 496, 501 (2d Cir.1994) (internal quotation marks omitted); see
Polk County v. Dodson, 454 U.S. 312, 325, 102 S.Ct. 445, 70 L.Ed.2d 509 (“Section 1983 will not support a claim based on a
respondeat superior theory of liability.”) In the case of a defendant-supervisor, personal involvement is established when:
(1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being
informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created
a policy or custom under which unconstitutional practices occurred, or allowed continuance of such a
policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed
the wrongful acts, or (5) the defendant exhibited deliberate indifference to the rights of inmates by failing
to act on information indicating that constitutional acts were occurring.
Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.1995) (internal citations omitted).
Plaintiff has not alleged how Warden Shaw was personally involved in either failing to prevent the attack or failing to attend
to Plaintiff's medical needs. Accordingly, Plaintiff's claims against Warden Shaw must also be dismissed for lack of personal
involvement. 8
IV. Municipal Liability
Plaintiff named DOC as a defendant, rather than naming the City itself. Section 396 of the New York City Charter, however,
provides that “[a]ll proceedings for the recovery of penalties for the violation of any law shall be brought in the name of the
City of New York and not in that of an agency, except otherwise provided by law.” Accordingly, DOC is not a suable entity
and all claims against DOC must be dismissed. See George, 2001 WL 12010, at *2; Echevarria v. Dep't of Corr., 48 F.Supp.2d
388, 391 (S.D.N.Y.1999).
*6 Even if the Court construes Plaintiff's Complaint as naming the City as a defendant, this claim must be dismissed for failing
to state a claim for municipal liability under § 1983. To establish a § 1983 claim against a municipality, a plaintiff must show
that the officials who deprived him of a constitutional right acted pursuant to an official municipal policy or custom. Monell
v. Dep't of Social Services, 436 U.S. 658, 690-91, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); see Reynolds v. Guliani, 506 F.3d
183, 190-91 (2d Cir.2007). Here, Plaintiff has failed to allege that any prison official acted pursuant to a municipal policy or
custom. Plaintiff has also failed to allege any facts from which a court could reasonably infer that a relevant policy or custom
existed, and that it contributed to Plaintiff's injuries. Instead, Plaintiff appears to allege a single, isolated episode of misconduct
by correction officers at VCBC in failing to adequately provide for his safety and medical needs. Thus, Plaintiff's claim for
municipal liability must be dismissed.
V. Failure to Exhaust Administrative Remedies Pursuant to the PLRA
Under the Prison Litigation Reform Act (“PLRA”), an inmate is required to exhaust administrative remedies before filing any
federal action challenging prison conditions. 42 U.S.C. § 1997e(a); Porter v. Nussle, 534 U.S. 516, 531, 122 S.Ct. 983, 152
L.Ed.2d 12 (2002). As a general rule, when a plaintiff fails to exhaust his administrative remedies, the district court must dismiss
the action. Neal v. Goord, 267 F.3d 116, 117-18 (2d Cir.2001).
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There are circumstances, however, in which an inmate is excused from the PLRA's exhaustion requirement. Courts in the Second
Circuit consider (1) whether the administrative remedies were available to the inmate; (2) whether defendants' action interfered
with plaintiff's ability to exhaust his administrative remedies; and (3) whether special circumstances justify an inmate's failure
to comply with this exhaustion requirement. Brownell v. Krom, 446 F.3d 305, 311-12 (2d Cir.2006).
In this case, Plaintiff concedes in his Complaint that he never filed a grievance under DOC's Inmate Grievance Resolution
Program. 9 Defendants have submitted the New York City DOC Inmate Grievance Resolution Program Directive, as evidence
of the availability of administrative remedies to Plaintiff. (See Nguyen Decl; Ex. C.) However, according to the Directive,
“complaints pertaining to an alleged assault” are “non-grievable” issues under the program. (Id. at II.B.) Therefore, it appears
that Plaintiff Plaintiff was not required to file an administrative grievance with respect to his assault claim, and that only
Plaintiff's medical needs claim is subject to the PLRA's exhaustion requirement.
It is not clear, however, whether a medical needs claim that is reasonably intertwined with a claim pertaining to an alleged
assault is subject to the requirement of exhaustion of administrative remedies under the DOC policy, and if so, whether the DOC
policy is nonetheless sufficiently ambiguous such that an inmate may be justifiably excused from complying with the exhaustion
requirement in a case such as this one. See Harris v. Bowden, No. 03 Civ. 1617(LAP), 2006 WL 738110, at * 3 (S.D.N.Y.
Mar.23, 2006) (noting that a claim for deliberate indifference to medical needs is subject to the requirement of exhaustion of
administrative remedies under the City's grievance program, but failing to consider whether a medical needs claim reasonably
intertwined with a non-grievable issue is also subject to the exhaustion requirement); see also Hemphill v. New York, 380 F.3d
680, 690 (2d Cir.2004) (explaining that “a reasonable interpretation of prison grievance regulations may justify an inmate's
failure to follow procedural rules to the letter”). Defendants have not addressed this issue in their briefing. Because the Court
grants Defendants' motion to dismiss Plaintiff's claims, the Court does not also consider whether Plaintiff's medical needs claim
is barred by the PLRA.
CONCLUSION
*7 For the reasons stated above, Defendant's motion to dismiss is GRANTED. (Dkt. No. 14.) The Court dismisses Plaintiff's
claims against Defendants Warden Shaw, Correction Officer John Doe, and Correction Officer Thornton without prejudice. The
Court dismisses Plaintiff's claims DOC with prejudice. If Plaintiff wishes to bring a claim for municipal liability, he must bring
this claim against the City of New York. Plaintiff shall file any amended complaint not later than May 26, 2010. If Plaintiff
fails to file an amended complaint by that date, the Court will enter a final order of dismissal.
Petitioner is provided with a copy of all unpublished decisions cited in this Order.
SO ORDERED.
All Citations
Not Reported in F.Supp.2d, 2010 WL 1222017
Footnotes
1 Plaintiff, it appears, has not served his complaint on Correction Officer Thornton. Nonetheless, because the Court finds
that Plaintiff fails to state a claim for liability under § 1983 against any official at the prison, the Court dismisses
Plaintiff's claims against Correction Officer Thornton. For the same reason, the Court dismisses Plaintiff's claims against
Correction Captain “John Doe.”
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2 Defendants assert that, it appears from their review of the prison records, that the inmate who allegedly assaulted Plaintiff
was named “Leon Simmons.” (Defs. Mem. at 3 n. 2.)
3 Defendants assert, from their review of the prison records, that Plaintiff's complaint incorrectly identifies Correction
Officer “Thornton” as the officer involved, and that, instead, Correction Officer “Bolling” appears to have responded
to the altercation. For the purposes of this motion, the Court will continue to refer to the officer involved as Officer
“Thornton.”
4 In its December 1, 2009 Order, the Court warned that, if Plaintiff did not file an opposition or request an extension of
time by January 15, 2010, the Court would consider dismissing Plaintiff's complaint for failure to prosecute pursuant to
Rule 41(b) of the Federal Rules of Civil Procedure. The Court also explained that, after that date, the Court would not
consider any subsequent submission by Plaintiff in opposition to Defendants' motion to dismiss.
5 In fact, Plaintiff specifically identified, as the basis for his requested relief, “negl[i]gence of plaintiff's safety.” (Compl.¶
5.) See George v. Burton, No. 00 Civ.143, 2001 WL 12010, at * 4 (S.D.N.Y. Jan. 4, 2001).
6 For purposes of Defendants' motion to dismiss, the Court will assume that the condition described by Plaintiff, i.e.,
having his mouth wired shit and being unable to eat for several days, is “sufficiently serious” under the first prong of
the constitutional standard.
7 To the extent that Plaintiff also claims that he was improperly denied treatment immediately following inmate Simmons'
attack, this claim is clearly without merit. Plaintiff alleges that he, himself, discovered only at around 8:15 p.m. that
evening that his face had swelled up. Plaintiff alleges that he notified the officer on duty; that the officer called a captain;
that the captain sent him to the clinic; and that he was then sent to Bellevue. If Plaintiff himself was unaware of the
extent of his injuries following the altercation, Plaintiff cannot show that prison officials knew of and disregarded a
risk to his medical needs.
8 In fact, Plaintiff mentions Warden Shaw only in the caption of the complaint and in a heading titled “parties in this
complaint.” (See Compl. ¶ 1.)
9 Plaintiff states that he did not file a grievance because he did not understand prison rules and because he “did not know
about Grievance [procedure] or law.” (Compl.¶ IV, E, F.)
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Gorrio v. Shorter, Not Reported in Fed. Supp. (2024)
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2024 WL 2188910
Only the Westlaw citation is currently available.
United States District Court, E.D. Pennsylvania.
Michael GORRIO, Plaintiff
v.
Correctional Officer SHORTER et al., Defendants
CIVIL ACTION No. 23-4807
|
Signed May 13, 2024
|
Filed May 15, 2024
Attorneys and Law Firms
Michael Gorrio, Indiana, PA, Pro Se.
MEMORANDUM
Pratter, United States District Judge
*1 Michael Gorrio has now filed a third amended complaint against numerous defendants who are employed at SCI Phoenix.
The Court dismisses certain of Mr. Gorrio's claims and directs service of his claims that pass statutory screening.
BACKGROUND
In November 2023, Mr. Gorrio filed a civil complaint against 33 defendants raising a host of claims based on his placement in the
Restricted Housing Unit and other distinct events that occurred at SCI Phoenix where he is currently confined. Gorrio v. Terra,
Civ. A. No. 23-4366 (E.D. Pa.). Relevant here, the Court screened Mr. Gorrio's complaint and severed certain of his claims
into two new lawsuits, including “claims arising from events beginning in August 2023 predicated on [a] ‘fight club’ allegedly
operating on M-Unit, which the Complaint associate[d] with Correctional Officer Shorter and Unit Manager Wychunis,” and
which serves as the basis for Mr. Gorrio's claims in the instant case. See Gorrio v. Terra, No. 23-4366, 2023 WL 8373167, at
*6 (E.D. Pa. Dec. 4, 2023). Mr. Gorrio had alleged that he “was stabbed in the head and fractured his left hand” as a result of
an altercation with another inmate that he claimed to have started because of the alleged “fight club.” Id. at *4.
To pursue his claims, Mr. Gorrio was instructed to either pay the applicable fees or move to proceed in forma pauperis if he
sought to proceed with the claims that were severed into the instant case. In response, he completed the paperwork for proceeding
in forma pauperis and also reasserted his claims by filing an Amended Complaint against Correctional Officer Shorter and
Sergeant Green. In a January 24, 2024 Memorandum and Order, the Court granted Mr. Gorrio leave to proceed in forma pauperis
and dismissed his Amended Complaint upon statutory screening. The Court dismissed Mr. Gorrio's claims for failure to protect,
deliberate indifference to his medical needs, and excessive force for failure to state a claim and dismissed his state claims for
lack of subject matter jurisdiction, Gorrio v. Shorter, No. 23-4807, 2024 WL 169566, at *4 (E.D. Pa. Jan. 16, 2024).
Mr. Gorrio filed a second amended complaint. Id. He then resubmitted the initial complaint the Court had previously screened
and severed. Accordingly, the Court struck that pleading and gave Mr. Gorrio an opportunity to file a proper amendment limited
to the subject-matter at issue in this case. He returned with the pending Third Amended Complaint.
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The Third Amended Complaint names the following defendants in their individual and official capacities: (1) Superintendent
Joseph Terra; (2) Correctional Officer Shorter; (3) Correctional Officer Edwards; (4) Correctional Officer Bethea; (5) “John
Doe and Jane Doe” Officers and Lieutenants on M-Unit; (6) Lieutenant Jolliff; (7) Lieutenant Hunter; (8) Sergeant Green;
(9) Sergeant F. Webster; (10) Captain Drusel; (11) Captain Fitzgerald-Young; (12) Security Lieutenant Buggey; (13) Security
Lieutenant Wade; (14) Security Lieutenant Hall; (15) Security Lieutenant Wright; (16) Security Lieutenant White; (17) Unit
Manager Wychunis; (18) Major D. Mascellino; (19) Deputy Sipple; (20) Deputy Bradley; and (21) Deputy Hensley. 1
*2 As the basis for his claims, Mr. Gorrio alleges that on the afternoon of August 17, 2023, while he was proceeding to the
concrete yard on M-Unit, another prisoner, Isaiah Hall, swung a lock on a rope, “striking [Mr. Gorrio] several times in the hand
and head.” Mr. Gorrio alleges that he “was obligated to defend himself with no available officer in the yard and no available
officer monitoring the central control cameras” to prevent the altercation, which he alleges lasted “several minutes.” Mr. Gorrio
returned to M-Unit 45 minutes later “with visible blunt trauma, contusions, and lacerations to the head.” He claims he reported
the incident to “complacent unit officers” and requested medical attention and placement in administrative custody without
success, and that Officer Bethea and Sergeant Green “indicated” to Mr. Gorrio that “this is the result of ‘fight club’ tend to your
own injuries.” When Mr. Gorrio brought his request to other officers on M-Unit, he received similar responses or was told,
including by Officer Edwards, that “this is not our problem.”
As a result, Mr. Gorrio “was forced to administer wound care and stitches to his head and wrap his broken hand”; he also
received assistance from his cellmate, who allegedly used kitchen salt and sutures to close Mr. Gorrio's wounds. Mr. Gorrio
contends that “the chain-of-command on M-Unit and ... perfunctory Unit Manager Wychunis completely disregarded their
official duties for a period of two (2) days” by failing to administer medical care. In that regard, he explains that he “filed request
slip documentation” to Unit Manager Wychunis on the date of the incident, but that Mr. Wychunis “failed to act reasonably or
in a timely manner.” Mr. Gorrio further notes that SCI Phoenix is equipped with security cameras for purposes of monitoring
inmates, including cameras located in the control center of the unit, the security department, and central control.
Mr. Gorrio alleges that he was unaware of “fight club” prior to the August 17 incident with Mr. Hall, but that between August
17 and August 19, he was informed by Officers Shorter, Bethea, Green, Edwards, and other John or Jane Does officers on M-
Unit that the rules of the fight club were as follows:
A. No snitching; B. Fight to the death, or til the other prisoner is not moving; C. No medical attention,
tend to your own injuries; and D. the winner of each match will receive a $7,000.00 Cash App to a
location of their choosing.
The rules were allegedly posted on M-Unit during this two-day period. The Third Amended Complaint implies that Mr. Gorrio
was pressured by these officers to join the “fight club” and that he believed he had no other option but to do so.
Accordingly, after the August 17 incident, Mr. Gorrio returned to the concrete yard with a “homemade knife” and a “master
padlock on a rope,” and engaged Mr. Hall. 2 During the altercation, Mr. Gorrio was stabbed in the head and sustained a fractured
left hand; he also sustained mental, emotional and psychological injuries including post-traumatic stress disorder, depression,
anxiety, flashbacks, and night terrors. After a few minutes of fighting, unidentified officers broke up the fight and took Mr.
Gorrio and Mr. Hall for medical treatment. Mr. Gorrio was then taken to a hospital where he received a cast for his left hand
and staples in his head. When Mr. Gorrio returned to SCI Phoenix, he was placed under medical observation for two days and
then transferred to the Restricted Housing Unit (“RHU”) to serve disciplinary time.
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Mr. Gorrio alleges that all of the officials on M-Unit involved in “fight club” — whom he identified as Defendants Officer
Shorter, Officer Bethea, Sergeant Green, Officer Edwards, and John or Jane Doe officers on M-Unit—along with Security
Department officials, specifically, Defendants Captain Drusel, Captain Fitzgerald-Young, Lieutenant Jolliff, Lieutenant Hunter,
Security Lieutenant Hall, Security Lieutenant Wade, Security Lieutenant Buggey, Security Lieutenant Wright, and Security
Lieutenant White, were “negligent in their duties in the supervision of security cameras, in providing care, custody, and control
at SCI Phoenix ... [and] in ensuring a safe and secure living environment.” Mr. Gorrio adds that Superintendant Terra allegedly
“failed to properly train and instruct such officials,”
*3 Mr. Gorrio raises claims for: 3 (A) “deliberate indifference to safety” based on a failure to intervene; (B) “deliberate
indifference to health care” based on delayed medical care for his injuries; (C) “failure to protect” based on reckless disregard
for his safety; (D) “Respondeat Superior” for knowingly participating “in constitutional violations” and failing “to remedy the
wrong” after the violations were reported; (E) intentional infliction of emotional distress; (F) “negligence, gross negligence,
contributory negligence and negligence per se”; (G) “breach of contract, breach of fiduciary duties, and breach of the covenant
of good faith.” 4 He seeks damages.
LEGAL STANDARD
Because Mr. Gorrio is proceeding in forma pauperis, 28 U.S.C. § 1915(e)(2)(B)(ii) requires the Court to dismiss the Third
Amended Complaint if it fails to state a claim. Whether a complaint fails to state a claim under § 1915(e)(2)(B)(ii) is governed by
the same standard applicable to motions to dismiss under Federal Rule of Civil Procedure 12(b)(6), see Tourscher v. McCullough,
184 F.3d 236, 240 (3d Cir. 1999), which requires the Court to determine whether the complaint contains “sufficient factual
matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quotations omitted); Talley v. Wetzel, 15 F.4th 275, 286 n.7 (3d Cir. 2021). “At this early stage of the litigation,” ‘[the Court
will] accept the facts alleged in [the pro se] complaint as true,’ ‘draw[ ] all reasonable inferences in [the plaintiff's] favor,’ and
‘ask only whether [that] complaint, liberally construed, ... contains facts sufficient to state a plausible [ ] claim.’ ” Shorter v.
United States, 12 F.4th 366, 374 (3d Cir. 2021) (quoting Perez v. Fenoglio, 792 F.3d 768, 774, 782 (7th Cir. 2015)). Conclusory
allegations do not suffice. Iqbal, 556 U.S. at 678. Because Mr. Gorrio is proceeding pro se, the Court construes his allegations
liberally. Vogt v. Wetzel, 8 F.4th 182, 185 (3d Cir. 2021) (citing Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 244-45 (3d
Cir. 2013)).
DISCUSSION
A. Section 1983 Claims
Mr. Gorrio asserts his constitutional claims pursuant to § 1983, a vehicle by which federal constitutional claims may be brought
in federal court. “To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and
laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state
law,” West v. Atkins, 487 U.S. 42, 48 (1988). In a Section 1983 action, the personal involvement of each defendant in the alleged
constitutional violation is a required element, and, therefore, a plaintiff must allege how each defendant was involved in the
events and occurrences giving rise to the claims. See Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1998).
*4 “Suits against high-level government officials must satisfy the general requirements for supervisory liability.” Wharton
v. Danberg, 854 F.3d 234, 243 (3d Cir. 2017). There are “two general ways in which a supervisor-defendant may be liable
for unconstitutional acts undertaken by subordinates.” Barkes v. First Corr. Med., Inc., 766 F.3d 307, 316 (3d Cir. 2014),
reversed on other grounds by Taylor v. Barkes, 575 U.S. 822 (2015). First, a supervisor may be liable if he or she “ ‘with
deliberate indifference to the consequences, established and maintained a policy, practice or custom which directly caused [the]
constitutional harm.’ ” Id. (quoting A.M. ex rel. J.M.K. v. Luzerne Cnty. Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004)
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(alteration in original)). “Second, a supervisor may be personally liable under § 1983 if he or she participated in violating the
plaintiff's rights, directed others to violate them, or, as the person in charge, had knowledge of and acquiesced in the subordinate's
unconstitutional conduct.” 5 Id.
1. Failure to Protect and Failure to Intervene
Mr. Gorrio brings claims for “deliberate indifference to safety,” which are essentially failure to intervene claims, as well as
claims for failure to protect. Prison officials have a duty to take reasonable measures to guarantee the safety of inmates. See
Farmer v. Brennan, 511 U.S. 825, 832-33 (1994) (internal quotation and citation omitted), In that regard, prison officials have a
duty “ ‘to protect prisoners from violence at the hands of other prisoners.’ ” Hamilton v. Leavy, 117 F.3d 742, 746 (3d Cir. 1997)
(quoting Farmer, 511 U.S. at 833). However, not “every injury suffered by one prisoner at the hands of another ... translates
into constitutional liability for prison officials responsible for the victim's safety.” Farmer, 511 U.S. at 834.
To state a plausible failure to protect claim, Mr. Gorrio must allege that: (1) the conditions in which he was incarcerated posed a
substantial risk of serious harm; (2) prison officials acted with deliberate indifference to that substantial risk of serious harm; and
(3) the officials’ deliberate indifference caused harm, See id.; Hamilton, 117 F.3d at 746. Deliberate indifference is a subjective
standard. Beers-Capitol v. Whetzel, 256 F.3d 120, 125 (3d Cir. 2001). Mr. Gorrio must allege that the prison officials “knew
or were aware of and disregarded an excessive risk to [his] health or safety,” Id. at 135. “[I]t is not sufficient that the official
should have been aware” of the excessive risk. Id. at 125. A prison officer's failure to intervene can serve as a basis for Eighth
Amendment liability under Section 1983 if the officer “had a reasonable opportunity to intervene and simply refused to do so.”
Smith v. Mensinger, 293 F.3d 641, 650 (3d Cir. 2002). “However, an officer is only liable if there is a realistic and reasonable
opportunity to intervene.” Id. at 651.
*5 The crux of Mr. Gorrio's Third Amended Complaint is that the officers on M-Unit, specifically, Officers Shorter, Bethea,
Green, Edwards, and other John or Jane Does officers, were running a “fight club” on M-Unit through which they encouraged
inmates to seriously harm each other for money and that, as a result of this fight club, Mr. Gorrio was attacked by another inmate
and then encouraged to initiate his own attack, which he did because he believed he had no other choice. He suggests that,
despite the presence of cameras that would have allowed officers on M-Unit to identify inmate violence, the officers promoting
“fight club,” consistent with its rules, either ignored inmate fighting or chose to let it proceed until serious harm occurred, which
happened when Mr. Hall attacked Mr. Gorrio on August 17.
These allegations taken as true are sufficient at this early stage of the litigation to support an inference that Officers Shorter,
Bethea, Green, Edwards, and John or Jane Does officers on M-Unit on duty August 17 through 19, were deliberately indifferent
to Mr. Gorrio's safety by promoting inmates to fight each other and deliberately failing to intervene when they did. See McClain
v. Carney, No. 23-4012, 2024 WL 113761, at MO (E.D. Pa. Jan. 10, 2024) (“If, as Mr. McClain alleges, Defendants Carter and
Hawkins offered other inmates $100 in commissary to stab Mr. McClain, that conduct would amount to deliberate indifference
to his safety,”); Smolen v. Brown, No. 18-7621, 2023 WL 6199094, at *9 (S.D.N.Y. Sept. 22, 2023) (“Intentionally exposing
an inmate to the risk of harm with no penological purpose is indicative of deliberate indifference to the inmate's safety at best
and manifests an intent to harm the inmate at worst, thus constituting cruel and unusual punishment in violation of the Eighth
Amendment to the U.S. Constitution.” (internal quotations and alterations omitted)).
On the other hand, Mr. Gorrio has not alleged an adequate basis for a failure to protect or failure to intervene claim against the
remaining defendants: Superintendent Terra, Lieutenant Jolliff, Lieutenant Hunter, Sergeant Webster, Captain Drusel, Captain
Fitzgerald-Young, Security Lieutenant Buggey, Security Lieutenant Wade, Security Lieutenant Hall, Security Lieutenant
Wright, Security Lieutenant White, Unit Manager Wychunis, Major Mascellino, Deputy Sipple, Deputy Bradley, and Deputy
Hensley. Many of these defendants appear to have been named because of their high-level positions in the facility or because
of their presence in the relevant chain of command. There are no factual allegations suggesting that any of these defendants
participated in, knew of, or had any reason to know of the “fight club” that was allegedly being run on M-Unit during the
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relevant two or three day period in August, which is fatal to Mr. Gorrio's claims against them. See Evancho v. Fisher, 423
F.3d 347, 354 (3d Cir. 2005) (“While we appreciate that the discovery process is designed to enable a plaintiff like Evancho to
undercover evidence that may support the allegations set forth in a complaint, a court is not required to assume that a plaintiff
can prove facts not alleged.”).
Although Mr. Gorrio sent an inmate request to Unit Manager Wychunis on August 17, 2023, the date he was attacked by Mr.
Hall in the yard, this lone allegation is insufficient to support an inference that Unit Manager Wychunis knowingly permitted
“fight club” to continue in the short time frame between when the request was sent and when Mr. Gorrio subsequently attacked
Mr. Hall, or that he knew of “fight club” at all. See Dooley v. Wetzel, 957 F.3d 366, 374 (3d Cir. 2020) (“Personal involvement
requires particular ‘allegations of personal direction or of actual knowledge and acquiescence.’ ” (quoting Rode, 845 F.2d at
1207)); Burk v. Crowe, No. 19-5792, 2020 WL 42758, at *4 (E.D. Pa. Jan. 3, 2020) (The plaintiff's “general allegation that
he ‘wrote to’ Crowe, Cassidy, Budd, and Lagana ‘when this happen[ed]’ is too vague and undeveloped to state a plausible
basis for liability against these individuals.”). Accordingly, Mr. Gorrio has not stated a failure to protect claim or failure to
intervene claim against these sixteen defendants. See Jatrowski v. Twp. of Riverdale, 904 F.3d 280, 290 (3d Cir. 2018) (“Each
Government official, his or her title notwithstanding, is only liable for his or her own misconduct.”) (quoting Iqbal, 556 U.S.
at 677) (emphasis in original); Saisi v. Murray, 822 F. App'x 47, 48 (3d Cir. 2020) (per curiam) (“Saisi asserted that some
defendants were ‘in charge of agencies that allowed this to happen,’ and that liability stemmed merely from defendants’ ‘belief’
that their conduct would be ‘tolerated.’ However, a director cannot be held liable ‘simply because of his position as the head
of the [agency].’ ”) (quoting Evancho, 423 F.3d at 354).
2. Deliberate Indifference to Medical Needs
*6 Mr. Gorrio's claim of “deliberate indifference to health care” is essentially a claim for deliberate indifference to medical
needs. To state a constitutional claim based on the failure to provide medical care, a prisoner must allege facts indicating that
prison officials were deliberately indifferent to his serious medical needs. See Farmer, 511 U.S. at 835. Similar to a failure to
protect claim, a prison official is not deliberately indifferent “unless the official knows of and disregards an excessive risk to
inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial
risk of serious harm exists, and he must also draw the inference.” Id. at 837. Deliberate indifference in this context is properly
alleged “where the prison official (1) knows of a prisoner's need for medical treatment but intentionally refuses to provide it;
(2) delays necessary medical treatment based on a non-medical reason; or (3) prevents a prisoner from receiving needed or
recommended medical treatment.” Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999).
“A medical need is serious, ... if it is one that has been diagnosed by a physician as requiring treatment or one that is so
obvious that a lay person would easily recognize the necessity for a doctor's attention.” Monmouth Cnty. Corr. Institutional
Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987) (internal quotations omitted). Allegations of medical malpractice and mere
disagreement regarding proper medical treatment are insufficient to establish a constitutional violation. See Spruill v. Gillis,
372 F.3d 218, 235 (3d Cir. 2004). “[A]bsent a reason to believe (or actual knowledge) that prison doctors or their assistants
are mistreating (or not treating) a prisoner, a non-medical prison official ... will not be chargeable with the Eighth Amendment
scienter requirement of deliberate indifference.” Id. at 236.
Mr. Gorrio alleges that when he returned to M-Unit after his first altercation with Mr. Hall when Mr. Gorrio showed signs of
blunt force trauma, contusions, and lacerations to the head, he sought and was denied medical care for his injuries, allegedly
because of the rules of “fight club.” Specifically, Mr. Gorrio alleges Officer Bethea and Sergeant Green told him that “this is the
result of ‘fight club’ tend to your own injuries,” that unidentified officers on M-Unit did not provide care despite his requests or
use of the in-cell call button, and that Officer Edwards stated, “this is not our problem.” These allegations support an inference
that Officer Bethea, Sergeant Green, Officer Edwards, and John and/or Jane Doe officers were aware that Mr. Gorrio had a need
for medical care to treat his obvious injuries but that they declined to provide it because of the rules of “fight club.” Accordingly,
Mr. Gorrio may proceed on his deliberate indifference to medical needs claims against these defendants.
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However, Mr. Gorrio has not alleged a deliberate indifference to medical needs claim against the remaining defendants. He
does not allege that the defendants were aware of what medical care he required, when they were so aware, and how, if at all,
any such awareness gives rise to an inference that the defendants were deliberately indifferent to his medical needs. Although
Mr. Gorrio alleges that he contacted Unit Manager Wychunis after the August 17 incident by submitting a request to be placed
in administrative custody, this allegation is insufficient to state a deliberate indifference to medical needs claim against Unit
Manager Wychunis for the reasons stated above as to Mr. Gorrio's failure to protect and failure to intervene claims. See Iqbal,
556 U.S. at 678 (“Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the
line between possibility and plausibility of entitlement to relief.” (internal quotations omitted)); Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007) (“Because the plaintiffs here have not nudged their claims across the line from conceivable to plausible,
their complaint must be dismissed.”).
3. “Respondeat Superior”
*7 Mr. Gorrio brings claims he characterizes as “Respondeat Superior” based on allegations that the defendants “ ‘knowingly
and intentionally’ participated in constitutional violations and failed to remedy the wrong successively after reporting the
occurrence of such violations, resulting in violations of the Eighth Amendment.” As noted above, however, an individual is not
liable under Section 1983 based on the actions of others, Rather, a plaintiff must allege that each defendant participated in the
alleged constitutional violations to state a claim. Mr. Gordo's “Respondeat Superior” claim is therefore either a nullity (because
it improperly seeks to impose liability on defendants based on the acts of others) or a legal conclusion that duplicates his other
Eighth Amendment claims, which is entitled to no weight in determining whether those claims are plausible. See Iqbal, 556
U.S. at 676 (explaining that “[g]overnment officials may not be held liable for the unconstitutional conduct of their subordinates
under a theory of respondeat superior”). Accordingly, the “Respondeat Superior” claims are dismissed.
B. State Law Claims
Mr. Gorrio brings assorted state law claims generally sounding in tort and contract law. None of these claims are plausible.
1. Contract and Fiduciary Duty-Based Claims
Nothing in the Third Amended Complaint provides any factual basis for a breach of contract, breach of fiduciary duties, or
breach of the duty of good faith claims because Mr. Gorrio has not alleged any relevant contractual or fiduciary relationships.
See Meyer, Darragh, Buckler, Bebenek & Eck, P.L.L.C. v. L. Firm of Malone Middleman, P.C., 137 A.3d 1247, 1258 (Pa. 2016)
(“It is well-established that three elements are necessary to plead a cause of action for breach of contract: (1) the existence of a
contract, including its essential terms, (2) a breach of the contract; and, (3) resultant damages”); Snyder v. Crusader Servicing
Corp., 231 A.3d 20, 31 (Pa. Super. Ct. 2020) (“To prevail on [a] breach of fiduciary duty claims, [a plaintiff is] required to
prove the following elements: the existence of a fiduciary relationship between [the parties], that [the defendant] negligently or
intentionally failed to act in good faith and solely for [the plaintiff's] benefit, and that [the plaintiff] suffered an injury caused
by [the defendant's] breach of his fiduciary duty.”); see also Short v. Adams, No. 17-4544, 2019 WL 331679, at *9 (E.D. Pa.
Jan. 25, 2019) (dismissing state law claims based on conditions at a halfway house, including claims for breach of contract
and breach of fiduciary duty, where plaintiff failed to allege the existence of a contract or fiduciary relationship); CRS Auto
Parts, Inc. v. Nat'l Grange Mut. Ins. Co., 645 F. Supp. 2d 354, 369 (E.D. Pa. 2009) (“In order to plead a cause of action for
breach of the covenant of good faith, whether it is an express or implied covenant, a plaintiff must properly plead the elements
of a claim of breach of contract.”). Indeed, the Court rejected these claims when screening Mr. Gorrio's first iteration of this
lawsuit. Gorrio, 2023 WL 8373167, at *7.
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2. Tort Claims
Nor may Mr. Gorrio proceed on his tort claims sounding in negligence or intentional infliction of emotional distress. By statute,
Pennsylvania law provides agencies, officials and employees of the Commonwealth acting in the scope of their duties—such
as the defendants in this case while they were on duty in M-Unit—with sovereign immunity from damages claims subject to
exceptions not applicable here. See 1 Pa. Cons. Stat. § 2310 (establishing immunity for Commonwealth officials and employees);
42 Pa. Cons. Stat. § 8521 (limiting waiver of immunity to specific exceptions); id. § 8522 (setting forth limited exceptions); see
also Stackhouse v. Pa. State Police, 892 A.2d 54, 58 (Pa. Commw. Ct. 2006) (“Generally, the Commonwealth and its agencies,
officials and employees acting within the scope of their duties are immune from suits for damages.”). Further, “[u]nlike a
municipal officer who is not immune from suit ... for harm caused by willful misconduct, 42 Pa. Cons. Stat. § 8550, a state officer
is shielded from liability for intentional torts committed while acting within the scope of his duties.” Bracey v. Betancourt, No.
20-6205, 2021 WL 5112246, at *7 (E.D. Pa. Nov. 3, 2021); see also Poteat v. Lydon, No. 22-2114, 2023 WL 6620368, at *3
(3d Cir. Oct. 11, 2023) (per curiam) (“State sovereign immunity bars these suits against the Commonwealth and its employees
acting within the scope of their duties, as the PSP employees were, and the limited negligence exceptions to sovereign immunity
do not apply as Poteat alleged only intentional torts.”); Kidd v. Pennsylvania, 37 F. App'x 588, 592 n.3 (3d Cir. 2002) (summarily
dismissing intentional infliction of emotional distress claim because “[t]he Commonwealth, it subdivisions, and its employees
acting within the scope of employment enjoy Eleventh Amendment immunity in federal court. The Pennsylvania legislature
has not chosen to waive this immunity for intentional torts.” (citation omitted)). Accordingly, Mr. Gorrio may not proceed on
his state tort claims.
CONCLUSION
*8 For the foregoing reasons, the Court dismisses Mr. Gorrio's Third Amended Complaint with the exception of the following
claims: (1) failure to protect and failure to intervene claims against Officer Shorter, Officer Bethea, Sergeant Green, Officer
Edwards, and John or Jane Does officers on M-Unit on duty August 17 through 19, 2023, in their individual capacities; and
(2) deliberate indifference to serious medical needs claims against Officer Bethea, Sergeant Green, Officer Edwards, and John
and/or Jane Doe officers on duty on August 17, 2023, in their individual capacities. Mr. Gorrio's dismissed claims will be
dismissed with prejudice because the Court concludes that further attempts at amendment would be futile. See Jones v. Unknown
D.O.C. Bus Driver & Transportation Crew, 944 F.3d 478, 483 (3d Cir. 2019) (amendment by pro se prisoner would be futile
when prisoner “already had two chances to tell his story”). An appropriate Order follows, which directs service of Mr. Gorrio's
remaining claims.
All Citations
Not Reported in Fed. Supp., 2024 WL 2188910
Footnotes
1 The Court adopts the pagination supplied by the CM/ECF docketing system.
2 A declaration of another inmate, Alphonso Newsuan, that is attached as an exhibit to the Third Amended Complaint
reports that this second altercation between Mr. Gorrio and Mr. Hall occurred on August 18, 2023.
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3 In reciting his claims, Mr. Gorrio failed to associate Unit Manager Wychunis and the Doe Defendants with any particular
claim. The most logical interpretation of the Third Amended Complaint is that this was an oversight on Mr. Gorrio's
part because the remainder of the Third Amended Complaint evinces his intention to assert all of the claims against
all of the defendants.
4 To the extent Mr. Gorrio intends to bring claims pursuant to the Pennsylvania Constitution, which he invokes in the
recitation of his state claims, any such claims are dismissed because there is no legal basis for a damages action under
the Pennsylvania Constitution. See Plouffe v. Cevallos, 777 F. App'x 594, 601 (3d Cir. 2019) (“[N]or is there a private
right of action for damages under the Pennsylvania Constitution”); Pocono Mountain Charter Sch. v. Pocono Mountain
Sch. Dist., 442 F. App'x 681, 687 (3d Cir. 2011) (“No Pennsylvania statute establishes, and no Pennsylvania court has
recognized, a private cause of action for damages under the Pennsylvania Constitution.”).
5 Official capacity claims are indistinguishable from claims against the governmental entity that employs the defendants.
See Kentucky v. Graham, 473 U.S. 159, 165-66 (1985) (“Official-capacity suits ... ‘generally represent only another way
of pleading an action against an entity of which an officer is an agent.’ ”) (quoting Monell v. N.Y.C. Dept. of Soc. Servs.,
436 U.S. 658, 690, n, 55 (1978)). Thus, Section 1983 claims against the individual defendants here—all of whom appear
to be employed by the DOC—are really claims against the DOC, which is shielded from Section 1983 suits by Eleventh
Amendment immunity and is not considered a “person” subject to liability under Section 1983. See also Downey v.
Pennsylvania Dep't of Corr., 968 F.3d 299, 309-10 (3d Cir. 2020) (“Eleventh Amendment immunity bars actions for
retroactive relief against state officers acting in their official capacity.”); Lavia v. Pennsylvania, Dep't of Corr., 224 F.3d
190, 195 (3d Cir. 2000) (explaining that, “[b]ecause the Commonwealth of Pennsylvania's Department of Corrections
is a part of the executive department of the Commonwealth, it shares in the Commonwealth's Eleventh Amendment
immunity” and is also not considered a person for purposes of Section 1983). Accordingly, all claims asserted against
the defendants in their official capacity will again be dismissed with prejudice. See Gorrio, 2024 WL 169566, at *2 n.2.
The Court addresses Mr. Gorrio's damages claims against the defendants in their individual capacities.
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Harrison v. Traylor, Not Reported in Fed. Supp. (2019)
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2019 WL 120774
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Tony HARRISON, Plaintiff,
v.
C.O. TRAYLOR, et al., Defendants.
No. 17-CV-6678 (NSR)
|
Signed 01/07/2019
Attorneys and Law Firms
Tony Harrison, Attica, NY, pro se.
Jennifer Rose Gashi, State of New York Office of the Attorney General, White Plains, NY, for Defendants.
OPINION & ORDER
NELSON S. ROMAN, United States District Judge
*1 Plaintiff Tony Harrison (“Plaintiff”), an inmate in the New York State Department of Corrections and Community
Supervision, (“DOCCS”), brings this action pursuant to 42 U.S.C. § 1983 against Defendants: C.O. Traylor, C.O. Rathengaber,
C.O. Radway, C.O. Turman, Sgt. Johnson, Sgt. Plummer, Sgt. Claudio, Olga Marchese - Education Supervisor General,
Lesley Malin - Deputy Superintendent of Programs, Jeff McKoy - Deputy Commissioner for Programs, and Superintendent
Michael Capra, all of whom are employees of DOCCS, (collectively, “Defendants”). (See Complaint, (“Compl.”), ECF No. 2.)
Defendants move to dismiss the Complaint pursuant to Federal Rule of Civil Procedure Rule 12(b)(6).
For the following reasons, Defendants motion is GRANTED.
BACKGROUND
The conduct central to this case occurred while Plaintiff was an inmate at Sing Sing Correctional Facility (“Sing Sing”). 1 (See
Compl. ¶ 16.) Plaintiff alleges that in January, 2014, C.O. Traylor “deliberately labeled plaintiff ... on the Sing Sing’s ALPHA
CELL BOOK movement and control sheet” causing Plaintiff to become a target to correctional officers and inmates that had
access to this ALPHA CELL BOOK Movement and control sheets. (Id.) Plaintiff alleges that this labeling precipitated much
unlawful conduct, namely: 1) it prevented him from getting a position as a law library porter and 2) it made him a target for
a physical attack by other inmates.
A. Restricting Plaintiff’s Movement and Job Prospects
First, Plaintiff claims that six months after he was labelled in the cell book, his “cell movement had been constantly curtailed
so much that on June 3, 2014 C.O. Rathengaber went into plaintiff inmate’s file and ... conspired with Sgt. Johnson and the
Educational Supervisor Ms. Marchese, [to] have plaintiff unjustly restricted from his assigned school porter job.” (Id. ¶ 17.)
Plaintiff claims that he immediately filed grievances, all of which were to no avail, and that subsequently, C.O. Rathengaber
retaliated against Plaintiff by gossiping with other correctional officers and inmates and turning Plaintiff into “a target.” (Id.
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¶ 17.) Plaintiff then asserts that C.O. Radway and C.O. Turman went to Sgt. Claudio to ensure that Plaintiff was restricted
from working as the law library porter, which he was otherwise poised and qualified to do. (Id. ¶ 19.) Plaintiff claims that Sgt.
Claudio yelled at him, calling him “a sexual predator” and made it clear that the library was “getting rid of all sex offenders ...
starting with [Plaintiff.]” (Id. ¶ 20.)
On February 22, 2015, Plaintiff claims that he again filed grievances and a complaint to Ms. Lesley Malin, the Deputy
Superintendent of Programs, as well as with Superintendent Michael Capra and to the Deputy Commissioner of DOCCS, all of
which again were to no avail. (Id. ¶ 21.) After these complaints, Plaintiff claims that Sgt. Claudo retaliated against Plaintiff by
removing him from another assigned job. (Id.) Plaintiff further alleges that in one form or another, he continued to be told by
various officers that he could no longer work as a law library porter in the school building due to his status as a sex offender,
as the organization was “getting rid of all sex offenders” in Sing Sing’s school building. (Id. ¶¶ 22-24.)
B. Deliberate Indifference in Making Plaintiff a Target for Attack
*2 Plaintiff next claims that after filing several grievances and complaints against various officers for their supposedly
retaliatory conduct against him, he became the “target of a severe assault” in his cell. (Id. ¶ 25.) Specifically, Plaintiff claims
that on July 19, 2015, he was severely hit on the left side of his skull with an unknown object by an unknown inmate, which
left him unconscious and resulted in his having a skull fracture that required surgery. (Id. ¶¶ 26-27.) He claims that various
officers are liable for this attack as they were deliberately indifferent to the heightened risk of his being attacked once they
labelled Plaintiff in the cell book.
LEGAL STANDARD
A. Motion to Dismiss
On a motion to dismiss under Fed. R. Civ. P. 12(b)(6), dismissal is proper unless the complaint “contain[s] sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007) ). When there are well-pleaded factual allegations in the complaint,
“a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Id. at 679.
“Although for the purposes of a motion to dismiss [a court] must take all of the factual allegations in the complaint as true, [it
is] ‘not bound to accept as true a legal conclusion couched as a factual allegation.’ ” Id. (quoting Twombly, 550 U.S. at 555). It
is not necessary for the complaint to assert “detailed factual allegations,” but must allege “more than labels and conclusions.”
Twombly, 550 U.S at 555. The facts in the complaint “must be enough to raise a right to relief above the speculative level on
the assumption that all the allegations in the complaint are true.” Id.
“Pro se complaints are held to less stringent standards than those drafted by lawyers, even following Twombly and Iqbal.”
Thomas v. Westchester, No. 12–CV–6718 (CS), 2013 WL 3357171 (S.D.N.Y. July 3, 2013). The court should read pro se
complaints “ ‘to raise the strongest arguments that they suggest,’ ” Kevilly v. New York, 410 F. App'x 371, 374 (2d Cir. 2010)
(summary order) (quoting Brownell v. Krom, 446 F.3d 305, 310 (2d Cir. 2006) ); see also Harris v. Mills, 572 F.3d 66, 72 (2d
Cir. 2009) (“even after Twombly, though, we remain obligated to construe a pro se complaint liberally.”). “However, even pro
se plaintiffs asserting civil rights claims cannot withstand a motion to dismiss unless their pleadings contain factual allegations
sufficient to raise a right to relief above the speculative level.” Jackson v. N. Y.S. Dep't of Labor, 709 F. Supp. 2d 218, 224
(S.D.N.Y. 2010) (quoting Twombly, 550 U.S. at 555) (internal quotation marks omitted). Dismissal is justified, therefore, where
“the complaint lacks an allegation regarding an element necessary to obtain relief,” and therefore, the “duty to liberally construe
a plaintiff’s complaint [is not] the equivalent of a duty to re-write it.” Geldzahler v. New York Medical College, 663 F. Supp.
2d 379, 387 (S.D.N.Y. 2009) (internal citations omitted).
B. Section 1983
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“To recover under s 1983 petitioner must prove two separate and independent elements: first, that respondent subjected her to
the deprivation of a right ‘secured by the Constitution and laws’; and, second, that while doing so respondent acted under color
of a statute, ordinance, regulation, custom, or usage of the [state].” Adickes v. S.H. Kress & Co., 298 U.S. 144, 188-89 (1970).
C. Retaliation Under the First Amendment
A plaintiff asserting a retaliation claim has the burden of demonstrating: “(1) that the speech or conduct at issue was protected,
(2) that the defendant took adverse action against the plaintiff, and (3) that there was a causal connection between the protected
speech and the adverse action.” Scott v. Coughlin, 344 F.3d 282, 287 (2d Cir. 2003). Conclusory allegations or denials are
ordinarily not sufficient to defeat a motion for summary judgment when the moving party has set out a documentary case. Id.
Rather, “[o]nly retaliatory conduct that would deter a similarly situated individual of ordinary firmness from exercising his
or her constitutional rights constitutes an adverse action for a claim of retaliation ... Otherwise the retaliatory act is simply
de minimis and therefore outside the ambit of constitutional protection.” Dawes v. Walker, 239 F.3d 489,493 (2d Cir. 2001),
overruled on other grounds, Swierkewicz v. Sorema., 534 U.S. 506 (2002) (citations omitted).
*3 “Prisoners may be required to tolerate more than public employees, who may be required to tolerate more than average
citizens, before a[ retaliatory] action taken against them is considered adverse.” Id. In addition, the “casual connection” element
requires plaintiffs to prove that an adverse action relates to protected First Amendment activity—that is, the plaintiff must
present evidence from which a jury could conclude that the plaintiffs protected First Amendment activity was “a substantial
or motivating factor” in the prison official’s adverse action against the plaintiff. Graham v. Henderson, 89 F.3d 75, 79 (2d Cir.
1996). “To survive a motion to dismiss, such claims must be “supported by specific and detailed factual allegations,” not stated
“in wholly conclusory terms.” ” Friedl v. City of New York, 210 F.3d 79, 85-86 (2d Cir. 2000) (quoting Flaherty v. Coughlin,
713 F.2d 10, 13 (2d Cir. 1983) ).
The Second Circuit has repeatedly held that a court must assess a claim of retaliation with “skepticism and particular care”
because such claims are “easily fabricated” by inmates. Dawes, 239 F.3d at 491. Such claims create a “substantial risk of
unwarranted judicial intrusion into matters of general prison administration” because:
virtually any adverse action taken against a prisoner by a prison official - even those otherwise not
rising to the level of a constitutional violation - can be characterized as a constitutionally proscribed
retaliatory act.... Given that such adversity is an ever-present concomitant of prison life, the opportunities
to characterize its manifestations as actionable retaliation are far greater than that for society at large.
Id. (internal citations and quotations omitted).
D. Deliberate Indifference Under Eight Amendment
Deliberate indifference under the Eighth Amendment is evaluated under a two-pronged test comprised of both objective and
subjective components. See Darnell v. Pineiro, 849 F.3d 17, 32-35 (2d Cir. 2017); Hill v. Curcione, 657 F.3d 116, 122 (2d
Cir. 2011). “[T]o establish an objective deprivation, ‘the inmate must show that the conditions, either alone or in combination,
pose an unreasonable risk of serious damage to his health,’ which includes the risk of serious damage to ‘physical and mental
soundness.’ ” Darnell, 849 F.3d at 30 (citations omitted). To meet the objective prong, a plaintiff must assert that the alleged
medical need is a “sufficiently serious” condition that “could result in further significant injury or the unnecessary and wanton
infliction of pain.” Harrison v. Barkley, 219 F.3d 132, 136 (2d Cir. 2000) (quoting Chance v. Armstrong, 143 F.3d 698, 702 (2d
Cir. 1998) ); see also Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994) (noting that standard contemplates “a condition of
urgency, one that may produce death, degeneration, or extreme pain”).
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The subjective component requires a prisoner to show that the defendant officials acted with a “sufficiently culpable state of
mind” in depriving him of adequate medical treatment. Nielsen v. Rabin, 746 F.3d 58, 63 (2d Cir. 2014) (citing Salahuddin v.
Goord, 467 F.3d 263, 280 (2d Cir. 2006) ). “That is, the official must ‘know of and disregard an excessive risk to inmate health
or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious
harm exists, and he must also draw the inference.” Hill, 657 F.3d at 122 (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)
(internal alterations omitted) ).
DISCUSSION
Reading the Complaint liberally, as the Court is required to do, the only possible causes of action that are alleged are: (1)
retaliation under the First Amendment for Plaintiff’s filing of grievances and (2) deliberate indifference under the Eight
Amendment for failure to protect Plaintiff from being attacked/assaulted.
*4 For the following reasons, Plaintiff’s Complaint fails to state a claim under both.
a. Retaliation under the First Amendment
Defendants are correct that inmates do not have any constitutional, statutory, or regulatory right to any prison job. Gill v. Mooney,
824 F.2d 192, 194 (2d Cir. 1987) (“New York law does not give a prisoner ‘any statutory, regulatory or precedential right to his
prison job.’ ”). Yet what is fatal to Plaintiff’s retaliation claim is Plaintiff’s failure to allege any connection—let alone a causal
one—between his filing of grievances and complaints and his being denied the porter position.
Prisoners certainly engage in protected activity when they file grievances and complaints about their prison conditions. Colon v.
Coughlin, 58 F.3d 865, 872 (2d Cir. 1995) (“Prisoners, like non-prisoners, have a constitutional right of access to the courts and
to petition the government for the redress of grievances, and prison officials may not retaliate against prisoners for the exercise
of that right.”) Therefore, even if they are not entitled to any job in the prison system, they are entitled to make complaints
about their beliefs of unlawful conduct, and that too, without fear of repercussions. Thus, there can be a cognizable claim of
retaliation when a prisoner is denied an opportunity to which he was not necessary entitled, but which would deter similarly
situated prisoners from exercising their protected federal rights. Dawes, 239 F.3d at 493 (“retaliatory conduct that would deter
a similarly situated individual of ordinary firmness from exercising his or her constitutional rights constitutes an adverse action
for a claim of retaliation”).
The issue here is not whether Plaintiff was entitled to the library porter job. Rather, it is whether Plaintiff sufficiently alleged
that he was only denied that job because of making his protected complaints, such that similarly situated individuals would be
deterred from making similar complaints in the first place. In that vein, the fatal problem here is that Plaintiff repeatedly alleges
that he was denied the law library porter job that he was otherwise assigned to because he was a known sex offender, not because
he engaged in protected activity (i.e. filed grievances/complaints). (See Compl. ¶ 19 (“This is when on Sgt. Claudio yelled out
in the school building, at plaintiff, ‘that you are not allowed in my school building[ ] while I am the school building Sargeant;
and you know why,’ ... calling Plaintiff a sexual predator ... and this same Sgt. Claudio actually told Plaintiff, ‘we are getting rid
of all sex offenders in Sing Sing’s school building and we are starting with you.”); Compl. ¶ 22 (“Then both of the said to the
Plaintiff ... that we made a mistake and that’s to[o] bad, because we are now getting rid of all sex offenders[ ] who has a job in
Sing Sing’s school building, and the law library porter job is in the school building.”); Compl. ¶ 24 (“you and the rest of the sex
offenders slip through the cracks, so now me and the School building sergeant Claudio are getting rid of all the sex offenders
out of Sing Sing’s school building; and we are both going to make sure no sex offender slip through the cracks no more.”).)
*5 While Plaintiff’s complaint alleges facts that could arguably provide circumstantial evidence that – based on timing –
there was a connection between his filing of grievances/complaints and not receiving the porter position, such circumstantial
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facts are insufficient to allege that the protected activities were “substantial or motivating factor” in the prison officials' actions
against the plaintiff. See Graham v. Henderson, 89 F.3d at 79; Friedl, 210 F.3d at 85-86 (“To survive a motion to dismiss,
such claims must be “supported by specific and detailed factual allegations,” not stated “in wholly conclusory terms.”) (quoting
Flaherty, 713 F.2d at 13). Because it is not even clear from the Complaint that the decision not to give Plaintiff the porter
position was close in time and immediately after his filing grievances, at this stage, the Complaint is deficient in making out
a First Amendment retaliation claim.
Finally, although Plaintiff adduces additional facts that make the causal connection between his engaging in protected activities
and experiencing retaliation more explicit in his Opposition to the Defendants' Motion to Dismiss, (ECF No. 29), the Court is
confined to the facts alleged in his Complaint for the purposes of considering a motion to dismiss under 12(b)(6). See Cortec
Indus. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991).
Accordingly, the Court dismisses Plaintiff’s Complaint, but without prejudice. Should Plaintiff seek to file an amended complaint
with sufficiently detailed facts, he retains the opportunity to do so.
b. Failure to Protect Under the Eighth Amendment
The crux of Plaintiff’s Eight Amendment claim is that Defendants were deliberately indifferent to Plaintiff’s risk of harm
because they disclosed his underlying criminal conviction, thereby making him a target for violence, and then failed to protect
him from the assault. (See Compl. ¶¶ 16, 25-27.) This Court disagrees.
Again, to make out any Eighth Amendment claim, a Plaintiff must “satisfy a two-prong test with both objective and subjective
components.” Banks v. William, No. 11-CV-8667(GBD)(JLC), 2012 WL 4761502, at *3 (S.D.N.Y. Sept. 27, 2012), report and
recommendation adopted by 2013 WL 764768 (Feb. 28, 2013). Because the Eighth Amendment “requires prison officials to
take reasonable measures to guarantee the safety of inmates in their custody[,]” Hayes v. New York City Dep't of Corr., 84 F.3d
614,620 (2d Cir. 1996), for a failure to protect claim to survive, a plaintiff must allege that, objectively, the conditions of his
incarceration posed a “substantial risk of serious harm” and, subjectively, the defendants acted with deliberate indifference in
failing to protect the inmate from such harm. Farmer, 511 U.S. at 834.
Here, Plaintiff fails to allege that he was at higher risk of serious harm because he was listed in the alpha cell log. Rather, all that
Plaintiff states is that “during the process of these grievances and complaints, [he] was a target of a[ ] severe assault in the targeted
Sing Sing’s HBA cell (A-H-66) (that Plaintiff complained about being a target in a labeled on Sing Sing’s alpha cell movement
and control sheet)” (Compl. ¶ 25.) Arguably, Plaintiff is again trying to draw a causal connection between the timing of when he
filed certain grievances and when he was attacked. For the same reasons as with his First Amendment retaliation claim, not only
are such loose assertions insufficient to draw any causal connection for retaliation purposes, but as far as the required prongs
for deliberate indifference, Plaintiff’s assertions fail to allege that: 1) objectively, his being listed in the cell log and filing of
grievances substantially increased his risk of harm from what it would have otherwise been and 2) Defendants subjectively
knew about this increased risk of harm and then deliberately and willfully disregarded it, leading to Plaintiff’s injuries.
*6 In addition, as Defendants correctly note, courts in the Southern District of New York tend to require that prison officials
had tangible notice—that is, actual knowledge about a prior altercation between the plaintiff and his attacker or about threats
that had been made against the plaintiff, before they can be deemed deliberately indifferent and to subsequent inmate-on-inmate
violence. See Thomas v. DeMeo, 2017 WL 3726759, at *8 (S.D.N.Y. Aug. 28, 2017) (“In general, to satisfy the requirements of
an Eighth Amendment failure to protect claim, a ‘plaintiff must allege that the defendants knew of a prior altercation between
the plaintiff and his attacker, or of threats that had been made against the plaintiff.’ In the absence of such allegations, prison
officials are not liable for any harm caused by inmate-on-inmate violence.”) (internal citation omitted); Parris v. N.Y. State
Dep't Corr. Servs., 947 F.Supp.2d 354, 363 (S.D.N.Y. 2013) (“Such culpability exists when an official ‘has knowledge that an
inmate faces a substantial risk of serious harm and he disregards that risk by failing to take reasonable measures to abate the
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harm.” Hayes, 84 F.3d at 620. The plaintiff ‘must allege actions or omissions sufficient to demonstrate deliberate indifference;
mere negligence will not suffice.’ ”) (internal citations omitted). In Fernandez v. N.Y.C. Dep't of Corr., 2010 WL 1222017, at
*4 (S.D.N.Y. Mar. 29, 2010), the Court explained the types of facts that the plaintiff needed to plead:
Plaintiff’s complaint fails to state facts from which a court can reasonably infer that any officer at DOC had knowledge of a
risk to Plaintiff, and disregarded that risk by failing to take reasonable measures to protect Plaintiff’s safety. Plaintiff has not
pled, for example, that he and inmate Simmons were involved in a prior altercation, that Simmons had previously threatened
him, or that there was any other reason for officers at DOC to be on notice that there was a risk of altercation between Plaintiff
and inmate Simmons. Absent clear notice of a risk of harm to the prisoner, “[c]ourts routinely deny deliberate indifference
claims based upon surprise attacks.”
And indeed, in Coronado v. Goord, No. 99 Civ. 167, 2000 WL 1372834, at *6 (S.D.N.Y. Sept. 25, 2000), the Court went so
forth as to require:
(1) there were numerous other inmate-on-inmate attacks in the GHCF yard; (2) these attacks posed a
substantial risk of serious harm to inmates; (3) the Defendants knew about these prior attacks; (3) despite
their knowledge of the prior attacks, Defendants failed to take steps to reduce the risk of harm to inmates;
(4) the prior attacks and the stabbing of [the plaintiff] were similar enough that any steps Defendants
could have taken to alleviate the danger posed by the other attacks would also have reduced the risk to
[the plaintiff]; and (5) if Defendant had taken such steps, [the plaintiff] would not have been stabbed in
the yard on June 30, 1997.
Here, Plaintiff’s Complaint has no facts about a prior history of violence between Plaintiff’s attacker and himself (in fact,
Plaintiff purportedly does not know who the attacker is, suggesting that this may have been the first incident of this type). See
Ayers v. Coughlin, 780 F.2d 205,209 (2d Cir. 1985) (“An isolated omission to act by a state prison guard does not support a
claim under section 1983 absent special circumstances indicating evil intent, recklessness, or at least deliberate indifference to
the consequences of his conduct for those under his control and dependent on him.”). Moreover, Plaintiff does not allege that
he made any prior complaints about being subject to violence or threatened about an attack. As such, Plaintiff’s scant assertions
fail to meet the pleading standards of Rule 12(b)(6) and fail to make out a prima facie claim for failure to protect under the
Eighth Amendment.
Accordingly, Plaintiff’s Eight Amendment Claim is also dismissed without prejudice. 2
c. Personal Involvement & Qualified Immunity
*7 Because the Court has not found a single cognizable constitutional claim in Plaintiff’s Complaint, it need not address
whether Plaintiff has sufficiently pleaded that the Officers were personally involved in any such violations or whether they
would be subject to qualified immunity. As such, the Court leaves these issues open to be addressed at a later point in time.
d. Leave to Amend
“ ‘[A] pro se complaint is to be read liberally,’ and should not be dismissed without granting leave to replead at least once when
such a reading ‘gives any indication that a valid claim might be stated.’ ” Barnes v. U.S., 204 Fed. App'x 918, 919 (2d Cir. 2006)
(quoting Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999) ). Taking Plaintiff’s pro se status into consideration,
the Court will permit Plaintiff an opportunity to amend his Complaint to state a valid claim.
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CONCLUSION
Accordingly, Defendants' Motion to Dismiss is GRANTED without prejudice. The Clerk of the Court is respectfully requested to
terminate ECF No. 24. The Court will allow Plaintiff thirty days (30) to Amend his Complaint if he so desires. If no amendment
is made by February 7, 2019, the Complaint will be dismissed with prejudice and the action terminated without further notice.
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2019 WL 120774
Footnotes
1 Plaintiff now resides at Attica Correctional Facility.
2 Although Plaintiff also complains about supposed taunts and verbal harassment that he was subject to in Sing Sing due to
the widespread knowledge of him being sex offender, such allegations could not color an Eighth Amendment violation
as a matter of law. Aziz Zarif Shabazz v. Pico, 994 F.Supp. 460,474 (S.D.N.Y. 1998) (“Verbal harassment or profanity
alone, unaccompanied by any injury no matter how inappropriate, unprofessional, or reprehensible it might seem, does
not constitute the violation of any federally protected right and therefore is not actionable under 42 U.S.C. § 1983.”).
As such they are dismissed with prejudice.
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Smolen v. Brown, Not Reported in Fed. Supp. (2023)
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2023 WL 6199094
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Samuel J. SMOLEN, Plaintiff,
v.
Lawton P. BROWN, et al., Defendants.
No. 18-CV-7621 (KMK)
|
Signed September 22, 2023
Attorneys and Law Firms
Samuel J. Smolen, Ossining, NY, Pro se Plaintiff.
Jennifer Rose Gashi, Esq., Kathryn E Martin, Esq., New York State Office of the Attorney General, New York, NY, Counsel
for Defendants.
OPINION & ORDER
KENNETH M. KARAS, United States District Judge:
*1 Samuel J. Smolen (“Plaintiff”) brings this Action against Correction Officers Lawton P. Brown (“Brown”) and Lyle L.
Carrington (“Carrington,” together, “Defendants”), pursuant to 42 U.S.C. § 1983, alleging that Brown failed to protect him
from another incarcerated individual who assaulted him and that Carrington assaulted him. (See generally Compl. (Dkt. No.
2).) Before the Court is Defendants’ Motion for Summary Judgment (the “Motion”) against Plaintiff on the issue of exhaustion
of administrative remedies and Plaintiff's failure to protect claim. (Not. of Mot. (Dkt. No. 93).)
For the reasons stated herein, Defendants’ Motion is denied.
I. Background
A. Factual Background
The following facts are taken from Defendants’ statements pursuant to Local Civil Rule 56.1. (Rule 56.1 Statement (“Defs.’
56.1”) (Dkt. No. 99).) Additionally, where appropriate, the Court cites directly to the admissible evidence submitted by the
Parties. The facts as described below are in dispute to the extent indicated. 1
*2 Plaintiff is an incarcerated individual in the custody of the New York State Department of Corrections and Community
Supervision (“DOCCS”). (Defs.’ 56.1 ¶ 1.) Plaintiff's claims arose while he was incarcerated at Sing Sing Correctional Facility
(“Sing Sing”). (Id. ¶ 2.) At the time of the allegations, Brown and Carrington were Correction Officers employed by DOCCS
at Sing Sing. (Id. ¶ 3.)
Plaintiff testified that Brown would always open one inmate's cell first and that inmate would then monopolize the phone.
(Martin Decl. Ex. 1, at 14:17–25 (Dkt. No. 96).) Plaintiff filed a grievance about the phone monopolization and inmates changing
the TV channel when they had no authorization to do so. (Id.) Plaintiff testified that he filed this grievance around August 2015
through the mail. (Id. at 15:8–14.) Plaintiff does not recall what happened to that grievance. (Id. at 17:9–10.)
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On August 25, 2015, during recreation on the 4 Gallery in Housing Block C, an incarcerated individual struck Plaintiff on the
left side of his head. (Defs.’ 56.1 ¶ 4.) Plaintiff described the assault as a “sucker punch.” (Id. ¶ 5.) Before Plaintiff was punched,
“Brown was telling the inmates more or less that [Plaintiff] had written a complaint that the TV and the telephone was [sic]
being monopolized,” and told everyone out on the company that “from now on, the TV will not be changed.” (Martin Decl.
Ex. 1, at 18:23–19:25.) Brown yelled at an inmate who wanted to change the channel “that he couldn't change the channel” and
“ordered the inmate to lock in.” (Id. at 17:13–24.) Plaintiff had no prior friction with the incarcerated individual who punched
him and “associated well” with him. (Defs.’ 56.1 ¶¶ 6–7.) The assault was a “complete shock” to Plaintiff. (Id. ¶ 8.)
Plaintiff testified that “Brown instigated the assault” by saying “that [Plaintiff] had filed a complaint that the phone and the TV
were being monopolized.” (Martin Decl. Ex. 1, at 20:7–13.) In telling the inmate who was going to change the channel to lock
in, Brown was “attempting to create friction between [Plaintiff] and the other inmates in that company.” (Id. at 20:25–21:4.)
Plaintiff testified that “Correction Officers often use inmates as their soldiers,” “if they don't like a particular inmate because
he's filing grievances and complaints, they will encourage another inmate to assault another inmate,” and that Brown “didn't
like [him] and he didn't like the complaints and grievances that [Plaintiff] was filing.” (Id. at 21:25–22:12.) Plaintiff additionally
testified that three officers were standing at the entrance to the company and that when he was punched, “three officers were
standing on the gate as if they were waiting for it to happen” and that “[i]t was a set up. They wanted to see me get hurt and
they succeeded.” (Id. at 17:23–24; 20:15–20.)
Following the assault, Plaintiff was brought to the Sing Sing Medical Clinic to be examined and was diagnosed with a ruptured
left eardrum. (Defs.’ 56.1 ¶¶ 9–10.) Plaintiff claims that while he was alone in an examination room, Carrington entered the
room and, without saying a word, punched him in the side of the head, and then left. (Martin Decl. Ex. 1, at 26:11–13, 28:4–
7, 29:16–17.) Plaintiff had never seen Carrington before that incident. (Id. at 27:10–13.) Carrington denies punching Plaintiff.
(See Answer ¶ 1 (Dkt. No. 34).)
In his Complaint, Plaintiff alleged that he tried to file grievances with I.G.R.C. Supervisor Quick and other Correction Officers in
connection with the above assaults, but they “refused to file [his] grievance” and “denied [Plaintiff's] appeal to do so.” (Compl.
at 3A.) 2 In Quick's declaration, Quick affirmed “I do not recall refusing to process any grievance submitted by Plaintiff” and
that the only reason she would have not filed his grievance is if it was untimely. (Quick Decl. ¶ 12 (Dkt. No. 98).) According
to the Complaint, Plaintiff subsequently wrote to Michelle Bellamy, the “Central Office Review Committee Statewide I.G.R.C.
Coordinator,” to complain about “Quick's refusal to file [his] grievances and denial of [his] appeal about her refusal.” (Compl.
at 5.) Plaintiff also “filed written complaints about both assaults with the sup[erintendent] of Sing Sing” and with Stephen
Maher, the “Chief of the Office of Special Investigations.” (Id.) A member of Stephen Maher's office subsequently interviewed
Plaintiff. (Id.)
*3 Plaintiff testified at his deposition that he “probably” filed a grievance about Brown and that he remembered “filing the
grievance regarding the suit.” (Martin Decl. Ex. 1, at 13:17–21.) Plaintiff testified that he submitted the grievance by mail and
received a response but did not recall what the response was. (Id. at 37:12–19.) At his deposition, Plaintiff did not recall what
happened to his grievance. (Defs.’ 56.1 ¶ 17.) Plaintiff did not recall if he appealed the grievance decision to the Superintendent
or the Central Office Review Committee (“CORC”). (Id. ¶ 18.) When asked, “Do you recall writing to the Central Office
Review Committee statewide [Incarcerated Grievance Resolution Committee (“IGRC”)] coordinator Bellamy regarding Ms.
Quick's refusal to file your grievance?” Plaintiff responded, “I don't recall. I may have.” (Id. ¶ 19.) There is no record in the Sing
Sing computer database of Plaintiff filing a grievance regarding the allegations in the Complaint. (Id. ¶ 13.) There is no record
of CORC having received an appeal of any grievance regarding the allegations in the Complaint, nor of having received any
correspondence from Plaintiff. (Id. ¶ 15.) Plaintiff appealed 315 grievances to CORC prior to August 2015. (Id. ¶ 16.) Plaintiff
files “a lot of grievances” and is “quite familiar with the grievance procedure.” (Id. ¶ 11.) Between 2014 and 2016, Plaintiff
filed 12 grievances, 10 of which he appealed to the CORC. (Id. ¶ 12.)
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B. Procedural History
Plaintiff filed his Complaint on August 20, 2018. (Dkt. No. 2.) On March 13, 2020, this Court dismissed claims against five
defendants who moved to dismiss Plaintiff's claims against them. (Dkt. No. 30.) On December 21, 2022, Defendants filed the
instant Motion. (See Defs.’ Mem. of Law in Supp. of Mot. for Summary Judgment (“Defs.’ Mem.”) (Dkt. No. 94).) Plaintiff
did not oppose the instant Motion.
II. Discussion
A. Standard of Review
Summary judgment is appropriate where the movant shows that “there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986) (same); Psihoyos v. John Wiley & Sons, Inc., 748 F.3d 120, 123–24 (2d Cir. 2014) (same). “In deciding whether to award
summary judgment, the court must construe the record evidence in the light most favorable to the non-moving party and draw
all reasonable inferences in its favor.” Torcivia v. Suffolk County, 17 F.4th 342, 354 (2d Cir. 2021); see also Horror Inc. v. Miller,
15 F.4th 232, 240 (2d Cir. 2021) (same). “It is the movant's burden to show that no genuine factual dispute exists.” Vt. Teddy
Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004); see also Red Pocket, Inc. v. Interactive Commc'ns Int'l, Inc.,
No. 17-CV-5670, 2020 WL 838279, at *4 (S.D.N.Y. Feb. 20, 2020) (same).
“However, when the burden of proof at trial would fall on the nonmoving party, it ordinarily is sufficient for the movant to
point to a lack of evidence to go to the trier of fact on an essential element of the non[-]movant's claim,” in which case “the
non[-]moving party must come forward with admissible evidence sufficient to raise a genuine issue of fact for trial in order to
avoid summary judgment.” CILP Assocs., L.P. v. Pricewaterhouse Coopers LLP, 735 F.3d 114, 123 (2d Cir. 2013) (alteration,
citation, and quotation marks omitted). Further, “[t]o survive a [summary judgment] motion ..., [a non-movant] need[s] to create
more than a ‘metaphysical’ possibility that his allegations were correct; he need[s] to ‘come forward with specific facts showing
that there is a genuine issue for trial,’ ” Wrobel v. County of Erie, 692 F.3d 22, 30 (2d Cir. 2012) (emphasis omitted) (quoting
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986)), “and cannot rely on the mere allegations
or denials contained in the pleadings,” Guardian Life Ins. Co. v. Gilmore, 45 F. Supp. 3d 310, 322 (S.D.N.Y. 2014) (quotation
marks omitted); see also Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009) (“When a motion for summary judgment is properly
supported by documents or other evidentiary materials, the party opposing summary judgment may not merely rest on the
allegations or denials of his pleading....”).
“On a motion for summary judgment, a fact is material if it might affect the outcome of the suit under the governing law.” Royal
Crown Day Care LLC v. Dep't of Health & Mental Hygiene, 746 F.3d 538, 544 (2d Cir. 2014) (quotation marks omitted). At
this stage, “[t]he role of the court is not to resolve disputed issues of fact but to assess whether there are any factual issues to
be tried.” Brod v. Omya, Inc., 653 F.3d 156, 164 (2d Cir. 2011) (citation omitted). Thus, a court's goal should be “to isolate and
dispose of factually unsupported claims.” Geneva Pharms. Tech. Corp. v. Barr Laby's. Inc., 386 F.3d 485, 495 (2d Cir. 2004)
(quoting Celotex, 477 U.S. at 323–24).
*4 When ruling on a motion for summary judgment, a district court should consider only evidence that would be admissible
at trial. See Nora Beverages, Inc. v. Perrier Grp. of Am., Inc., 164 F.3d 736, 746 (2d Cir. 1998). “[W]here a party relies on
affidavits or deposition testimony to establish facts, the statements ‘must be made on personal knowledge, set out facts that
would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.’ ” DiStiso
v. Cook, 691 F.3d 226, 230 (2d Cir. 2012) (quoting Fed. R. Civ. P. 56(c)(4)); see also Sellers v. M.C. Floor Crafters, Inc.,
842 F.2d 639, 643 (2d Cir. 1988) (“Rule 56 requires a motion for summary judgment to be supported with affidavits based on
personal knowledge....”); Baity v. Kralik, 51 F. Supp. 3d 414, 419 (S.D.N.Y. 2014) (disregarding “statements not based on [the]
[p]laintiff's personal knowledge”); Flaherty v. Filardi, No. 03-CV-2167, 2007 WL 163112, at *5 (S.D.N.Y. Jan. 24, 2007) (“The
test for admissibility is whether a reasonable trier of fact could believe the witness had personal knowledge.” (citation omitted)).
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Finally, the Second Circuit has instructed that when a court considers a motion for summary judgment, “special solicitude”
should be afforded a pro se litigant, see Graham, 848 F.2d at 344; accord Mercado v. Div. of N.Y. State Police, No. 96-CV-235,
2001 WL 563741, at *7 (S.D.N.Y. May 24, 2001) (same), and a court should construe “the submissions of a pro se litigant ...
liberally” and interpret them “to raise the strongest arguments that they suggest,” Triestman v. Fed. Bureau of Prisons, 470
F.3d 471, 474 (2d Cir. 2006) (italics and quotation marks omitted). Moreover, “the failure to oppose a motion for summary
judgment alone does not justify the granting of summary judgment.” Vt. Teddy Bear Co., 373 F.3d at 244; see also Jackson
v. Fed. Exp., 766 F.3d 189, 196 (2d Cir. 2014) (explaining that “an examination of the legal validity of an entry of summary
judgment should ... be[ ]made in light of the opposing party's pro se status” (italics omitted)). “Nonetheless, proceeding pro
se does not otherwise relieve a litigant of the usual requirements of summary judgment, and a pro se party's bald assertions
unsupported by evidence ... are insufficient to overcome a motion for summary judgment.” Houston, 27 F. Supp. 3d at 351
(alterations, italics, and quotation marks omitted); see also Flores v. City of New York, No. 15-CV-2903, 2017 WL 3263147,
at *2 (S.D.N.Y. July 31, 2017) (same).
B. Exhaustion Under the PLRA
The Prison Litigation Reform Act (“PLRA”) provides that “[n]o action shall be brought with respect to prison conditions under
[§] 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until
such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). This “language is ‘mandatory’: An inmate
‘shall’ bring ‘no action’ (or said more conversationally, may not bring any action) absent exhaustion of available administrative
remedies.” Ross v. Blake, 578 U.S. 632, 638 (2016) (quoting Woodford v. Ngo, 548 U.S. 81, 85 (2006)). This requirement applies
to “all inmate suits about prison life,” Porter v. Nussle, 534 U.S. 516, 532 (2002), “regardless of the relief offered through
administrative procedures,” Booth v. Churner, 532 U.S. 731, 741 (2001). Moreover, the PLRA “requires proper exhaustion,
which means using all steps that the prison grievance system holds out, and doing so properly.... Proper exhaustion demands
compliance with a prison grievance system's deadlines and other critical procedural rules.” Williams v. Priatno, 829 F.3d 118,
122 (2d Cir. 2016) (alterations, citations, and quotation marks omitted) (emphasis in original).
*5 To satisfy the exhaustion requirements, a prisoner “must exhaust all levels” of DOCCS's “Inmate Grievance
Program” (“IGP”). Little v. Mun. Corp., City of N.Y., No. 12-CV-5851, 2017 WL 1184326, at *11 (S.D.N.Y. Mar. 29, 2017).
The IGP provides for a three-step grievance process. See 7 N.Y.C.R.R. § 701 et seq.; see also Abdallah v. Ragner, No. 12-
CV-8840, 2013 WL 7118083, at *2 (S.D.N.Y. Nov. 22, 2013) (noting that “[DOCCS] provides an administrative remedy for
many prisoners’ claims,” which is “a grievance system available to prisoners in custody at state prisons” (citing 7 N.Y.C.R.R.
§ 701.1(c))). Under the framework used in typical cases, an inmate must first file a complaint at the facility where the inmate
is housed within 21 calendar days of an alleged occurrence. See 7 N.Y.C.R.R. § 701.5(a)(1). Once filed, the representatives of
the IGRC have up to 16 calendar days to resolve the grievance informally. Id. § 701.5(b)(1). If the matter is not satisfactorily
resolved, the IGRC conducts a hearing to either answer the grievance or make a recommendation to the superintendent, id. §
701.5(b)(2)(i), which is scheduled within 16 days after receipt of the grievance, id. § 701.5(b)(2)(ii). The second step in the
tripartite framework is for the grievant or any direct party to appeal the IGRC's decision to the prison superintendent within
seven calendar days after receipt of the IGRC's written response, although the appealing party can seek an exception to the time
limit. See id. § 701.5(c)(1). The third and final step is to appeal the superintendent's decision to the DOCCS Central Office
Review Committee (“CORC”), which the prisoner must do within seven days of the superintendent's written response to the
grievance. Id. § 701.5(d)(1)(i). Here, too, an inmate may request an exception to the time limit. See id. Given the aforementioned
requirement to exhaust all levels of administrative remedies, see Little, 2017 WL 1184326, at *11, “only after CORC has
reviewed the appeal and rendered a decision are New York's grievance procedures exhausted,” Gardner v. Daddezio, No. 07-
CV-7201, 2008 WL 4826025, at *2 (S.D.N.Y. Nov. 5, 2008).
However, the PLRA “contains its own, textual exception to mandatory exhaustion.” Ross, 578 U.S. at 642. As the Supreme
Court has explained “the exhaustion requirement hinges on the “ ‘availab[ility]’ of administrative remedies.... [A]n inmate is
required to exhaust those, but only those, grievance procedures that are ‘capable of use’ to obtain ‘some relief for the action
complained of.’ ” Id. (quoting Booth, 532 U.S. at 738).
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The Supreme Court has identified at least “three kinds of circumstances in which an administrative remedy, although officially
on the books, is not capable of use to obtain relief.” Id. at 643. First, an “administrative procedure is unavailable when ...
it operates as a simple dead end—with officers unable or consistently unwilling to provide any relief to aggrieved inmates.”
Id. Second, “an administrative scheme might be so opaque that it becomes, practically speaking, incapable of use. In this
situation, some mechanism exists to provide relief, but no ordinary prisoner can discern or navigate it.” Id. at 643–44. Third, an
administrative remedy may be unavailable “when prison administrators thwart inmates from taking advantage of a grievance
process through machination, misrepresentation, or intimidation.” Id. at 644. The Second Circuit has noted “that the three
circumstances discussed in Ross do not appear to be exhaustive,” but has declined to “opine on what other circumstances might
render an otherwise available administrative remedy actually incapable of use.” Williams, 829 F.3d at 123 n.2. Nonetheless,
these three circumstances “guide the Court's inquiry.” Khudan v. Lee, No. 12-CV-8147, 2016 WL 4735364, at *5 (S.D.N.Y.
Sept. 8, 2016).
There is no dispute that a grievance procedure exists at DOCCS, indeed Plaintiff himself has used it many times before the
alleged incident—fully exhausting 315 grievance complaints prior to August 2015, including nine which were initially filed at
Sing Sing. (Seguin Decl. ¶¶ 3–7, 12 (Dkt. No. 97).) However, there is no record in the Sing Sing computer database of Plaintiff
filing a grievance regarding the allegations in the Complaint. (Defs.’ 56.1 ¶ 13.) There is also no record of CORC having
received an appeal of any grievance regarding the allegations in the Complaint, nor of having received any correspondence
from Plaintiff regarding his grievance not being accepted for filing. (Id. ¶ 15.) Accordingly, the record clearly demonstrates that
Plaintiff did not exhaust all steps of the grievance process.
“Once [a] defendant[ ] ha[s] met [the] initial burden of demonstrating that a grievance process exists ... a plaintiff bears the
burden of demonstrat[ing] that other factors ... rendered a nominally available procedure unavailable as a matter of fact.” White
v. Velie, No. 16-CV-1183, 2017 WL 4082706, at *2 (2d Cir. 2017) (quotation marks and citation omitted). The Court takes
Plaintiff's assertions that officers refused to file his grievance as an argument that the grievance process was unavailable to
him, either because the process “operates as a simple dead end,” was “practically speaking, incapable of use,” or because
“prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation,
or intimidation.” Ross, 578 U.S. 643–44.
*6 Defendants argue that “Plaintiff's self-serving and unsupported assertion that the IGP Supervisor refused to accept his
grievance is insufficient to establish a genuine issue of material fact as to the availability of the inmate grievance process to
Plaintiff.” (Defs.’ Mem. 7.) It is true that a “[p]laintiff's unsupported assertion that he filed a grievance but that it was somehow
lost or destroyed is insufficient to establish a genuine issue of material fact.” Engles v. Jones, No. 13-CV-6461, 2018 WL
6832085, at *10 (W.D.N.Y. Dec. 28, 2018) (granting summary judgment to defendants for failure to exhaust where defendants
demonstrated through admissible evidence that there was no record of the plaintiff filing his grievance and where the plaintiff
merely alleged without any documentary support that his grievance was lost or destroyed); see also Scott v. Kastner-Smith, 298
F. Supp. 3d 545, 555 (W.D.N.Y. 2018) (“[C]ourts have consistently held ... that an inmate's general claim that his grievance was
lost or destroyed does not excuse the exhaustion requirement.”) (citation omitted); Mims v. Yehl, No. 13-CV-6405, 2014 WL
4715883, at *4 (W.D.N.Y. Sept. 22, 2014) (holding that inmate's “unsupported statement” that he has submitted a grievance is
“insufficient at the summary judgment stage”).
However, “courts in the Second Circuit have excused failure to exhaust where a plaintiff identified an officer or officers who
took some specified action to prevent the plaintiff from filing a grievance.” Davis v. Grant, No. 15-CV-5359, 2019 WL 498277,
at *9 (S.D.N.Y. Feb. 8, 2019) (collecting cases); cf. Heyliger v. Gebler, No. 06-CV-6220, 2014 WL 4923140, at *3 (W.D.N.Y.
Sept. 30, 2014) (granting summary judgment, notwithstanding plaintiff's testimony that his “original grievance was discarded by
prison officials,” where plaintiff “never described or named the individual who allegedly took this action”), aff'd, 624 Fed.Appx.
780 (2d Cir. 2015). Before the Court at this juncture is “a clash of sworn statements” where “Plaintiff attested that he gave
his grievance to a correction officer, and [Defendant] submitted sworn statements from inmate grievance program supervisors
indicating that a review of their records revealed that no grievance was filed,” and that Quick does not recall refusing to process
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any of Plaintiff's grievances. Hudson v. Kirkey, No. 20-CV-581, 2021 WL 1966721, at *3 (N.D.N.Y. May 17, 2021). “To the
extent that these statements are in contradiction, the Court cannot resolve this contradiction at the summary judgment stage,
because the Court is prohibited from making credibility determinations.” Id.; see also McLean v. LaClair, No. 19-CV-1227,
2021 WL 671650, at *8 (N.D.N.Y. Feb. 22, 2021) (“Here, there is again a clash of sworn statements: Plaintiff attests that he
attempted to submit the appeals, and Defendants attest that they were never filed.... [T]he Court cannot credit Defendants’
sworn statements over Plaintiff's.”).
Moreover, at summary judgment, the Court “must construe the record evidence in the light most favorable to the non-moving
party and draw all reasonable inferences in its favor.” Torcivia, 17 F.4th at 354. Given this ambit, it is not clear to this Court that
these two statements are in fact contradictory. Indeed, “the Court must infer that [Plaintiff's] grievance was never filed because
prison authorities did not file it, not because Plaintiff did not submit it.” Hudson, 2021 WL 1966721, at *4 (emphasis added); see
also McLean, 2021 WL 671650, at *8 (“[T]here is no necessary inconsistency between [the] [p]laintiff's claim that he mailed the
appeals and [the] [d]efendants’ claim that they were never filed; and the Court must grant [the] [p]laintiff the favorable inference
that his grievance was sent and received, but not filed, for reasons out of his control.”); Zulu v. Barnhart, No. 16-CV-1408, 2019
WL 2997226, at *13 (N.D.N.Y. Apr. 22, 2019) (“Defendants’ evidence is largely consistent with plaintiff's claim that ... the
timely grievances that he attempted to submit while confined to the SHU at Marcy were not filed. The absence of any official
records of plaintiff's initial attempts to give the incident comports with [the] plaintiff's assertion that once he handed a grievance
through the feed-up hatch in the SHU, it was out of his possession and it was not filed.”), report and recommendation adopted,
2019 WL 2150628 (N.D.N.Y. May 17, 2019). 3
*7 Thus, “[i]n order to determine whether Plaintiff properly exhausted administrative remedies, the Court must hold a hearing,
at which a fact-finder can assess the credibility of witnesses and the relative weight of the evidence and parties presented.”
Hudson, 2021 WL 1966721, at *4; see also Messa v. Goord, 652 F.3d 305, 310 (2d Cir. 2011) (stating that “the Seventh
Amendment does not guarantee a jury trial on factual disputes regarding administrative exhaustion under the PLRA.”); McLean,
2021 WL 671650, at *9 (ordering an exhaustion hearing on a similar PLRA affirmative defense to assess the credibility of
witnesses and evidence).
C. Failure to Protect
The Eighth Amendment, which prohibits cruel and unusual punishment, requires prison officials to “take reasonable measures to
guarantee the safety of inmates in their custody.” Hayes v. N.Y.C. Dep't of Corr., 84 F.3d 614, 620 (2d Cir. 1996); see also Farmer
v. Brennan, 511 U.S. 825, 832 (1994) (same). Specifically, “[p]rison officials have a duty to protect prisoners from violence at
the hands of other inmates since being violently assaulted in prison is simply not part of the penalty that criminal offenders pay
for their offenses against society.” Lee v. Artuz, No. 96-CV-8604, 2000 WL 231083, at *4 (S.D.N.Y. Feb. 29, 2000) (quotation
marks and citation omitted). However, “not ... every injury suffered by one prisoner at the hands of another ... translates into
constitutional liability for prison officials responsible for the victim's safety.” Farmer, 511 U.S. at 834. Instead, “the prisoner
must allege actions or omissions sufficient to demonstrate deliberate indifference; mere negligence will not suffice.” Hayes, 84
F.3d at 620; see also Price v. Oropallo, No. 13-CV-563, 2014 WL 4146276, at *8 (N.D.N.Y. Aug. 19, 2014) (“Prison officials
are liable under the Eighth Amendment for harm incurred by an inmate if they act with deliberate indifference to the inmate's
safety.”).
To satisfy the deliberate indifference standard, a plaintiff must allege that (1) “he is incarcerated under conditions posing a
substantial risk of serious harm” and (2) “the defendant prison officials possessed sufficient culpable intent.” Hayes, 84 F.3d
at 620. The first prong is objective and requires that prison officials provide inmates with “basic human needs, one of which
is reasonable safety.” Helling v. McKinney, 509 U.S. 25, 33 (1993) (quotation marks and citation omitted). “The second prong
of the deliberate indifference test, culpable intent, in turn, involves a two-tier inquiry.” Hayes, 84 F.3d at 620. “Specifically, a
prison official has sufficient culpable intent if he has knowledge that an inmate faces a substantial risk of serious harm and he
disregards that risk by failing to take reasonable measures to abate the harm.” Id. As the Supreme Court has made clear, “the
official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and
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he must also draw the inference.” Farmer, 511 U.S. at 837; see also Price, 2014 WL 4146276, at *8 (explaining that to establish
deliberate indifference, “a plaintiff must prove that the defendant official actually knew of and disregarded an excessive risk of
harm to the plaintiff's safety”). A defendant's knowledge can be established through “inference from circumstantial evidence,”
including “from the very fact that the risk was obvious.” Farmer, 511 U.S. at 842; see also Walker v. Schult, 717 F.3d 119, 125
(2d Cir. 2013) (“Evidence that a risk was obvious or otherwise must have been known to a defendant may be sufficient for a
fact finder to conclude that the defendant was actually aware of the risk.”) (quotation marks and citation omitted).
*8 Courts have found that the subjective prong was satisfied where “the defendants knew of a prior altercation between the
plaintiff and his attacker, or of threats that had been made against the plaintiff.” Dietrich v. Cnty. of Orange, No. 19-CV-10485,
2020 WL 5209816, at *4 (S.D.N.Y. Sept. 1, 2020) (citation and quotation marks omitted) (finding that the plaintiff failed
to plausibly allege the second prong when he “provide[d] no specifics that might provide a factual basis” for the risk to his
safety, including any prior instances of violence); see also Parris v. N.Y. State Dep't Corr. Servs., 947 F. Supp. 2d 354, 363
(S.D.N.Y. 2013) (finding that the plaintiff failed to plausibly allege the second prong when he did not “allege that the defendants
knew of any threats made against the plaintiff or that the plaintiff had been involved in any prior altercations”); Fernandez v.
N.Y.C. Dep't of Corr., No. 08-CV-4294, 2010 WL 1222017, at *4 (S.D.N.Y. Mar. 29, 2010) (finding that the plaintiff failed
to plausibly allege the second prong, because he did not allege he “and [an] inmate [ ] were involved in a prior altercation,
that [the inmate] had previously threatened him, or that there was any other reason for officers at DOC to be on notice that
there was a risk of altercation between [the] [p]laintiff and [the] inmate”). “It is well-established that prison officials cannot
be deliberately indifferent to a surprise attack.” Rivera v. Royce, No. 19-CV-10425, 2021 WL 2413396, at *8 (S.D.N.Y. June
11, 2021). Accordingly, “[a]bsent clear notice of a risk of harm to the prisoner, [c]ourts routinely deny deliberate indifference
claims based upon surprise attacks.” Fernandez, 2010 WL 1222017, at *4.
Defendants posit that the attack on Plaintiff was a surprise as Plaintiff was “completely shocked” by the assault and described it as
a “sucker punch.” (Defs.’ Mem. 10.) Indeed, Plaintiff had no prior friction with the incarcerated individual who punched him and
“associated well” with him, (Def.’s 56.1 ¶¶ 6–7), and Plaintiff offers no evidence to suggest otherwise. Accordingly, Defendants
argue that “it would not be possible for Defendant Brown to prevent the sucker punch or know beforehand that Plaintiff was at
risk of substantial harm.” (Defs.’ Mem. 10.) The Court agrees that generally, in the absence of any prior altercation or indication
that an assault was imminent, a failure to protect claim does not survive. See Simon v. City of New York Dep't of Corr., No.
18-CV-12063, 2022 WL 3636238, at *6 (S.D.N.Y. July 29, 2022), report and recommendation adopted, No. 18-CV-12063,
2022 WL 3599130 (S.D.N.Y. Aug. 23, 2022) (“On this record, the October 26 attack is properly considered a surprise attack,
and no reasonable jury could find that Defendants were deliberately indifferent to a substantial risk of serious harm.”); Rivera,
2021 WL 2413396, at *8 (“It is well-established that prison officials cannot be deliberately indifferent to a surprise attack.”);
Bowers v. Dep't of Corr. & Cmty. Supervision, No. 17-CV-0789, 2017 WL 11711834, at *4 (N.D.N.Y. Oct. 4, 2017) (“The
fact that plaintiff was injured during what he describes as a surprise attack does not give rise to a cognizable claim that he
was incarcerated under conditions posing a ‘substantial risk of serious harm,’ and that the assigned officers were deliberately
indifferent to that risk.”); Zimmerman v. Macomber, No. 95-CV-882, 2001 WL 946383, at *6 (S.D.N.Y. Aug. 21, 2001) (denying
claim where plaintiff did “not suggest that [defendant] knew or should have known” that he would be attacked by inmate, and
plaintiff admitted “that he himself was surprised”).
However, Plaintiff argues that Brown intentionally encouraged the assault; he testified that “Brown instigated the assault” by
saying “that [Plaintiff] had filed a complaint that the phone and the TV were being monopolized.” (Martin Decl. Ex. 1, at 20:7–
13.) Plaintiff posits that Brown was “attempting to create friction between [Plaintiff] and the other inmates in that company” by
telling an inmate who was going to change the channel to lock in. (Id. at 20:25–21:4.) Plaintiff testified that “Correction Officers
often use inmates as their soldiers,” “if they don't like a particular inmate because he's filing grievances and complaints, they
will encourage another inmate to assault another inmate” and that Brown “didn't like [him] and he didn't like the complaints
and grievances that [he] was filing.” (Id. at 21:25–22:12.)
*9 “Intentionally exposing an inmate to the risk of harm ... with no penological purpose is indicative of deliberate indifference
to the inmate's safety at best and manifests an intent to harm the inmate at worst, thus constituting cruel and unusual punishment
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in violation of the [Eighth] [A]mendment to the U.S. Constitution.” Mirabella v. Correction Officer O'Keenan, No. 15-CV-142,
2016 WL 4678980, at *4 (W.D.N.Y. Sept. 7, 2016) (citation omitted) (holding allegations that defendant officer “told inmates
in the plaintiff's housing unit that he was a pedophile and several inmates that the plaintiff was a ‘snitch’ and that he should be
punched in the mouth for ‘snitching’ ” sufficient to demonstrate that defendant “was aware of the source of the harm to which
[plaintiff] had been subjected” and sufficient “to state a claim for failure to protect”); Young v. Coughlin, No. 93-CV-0262,
1998 WL 32518, at *7 (S.D.N.Y. Jan. 29, 1998), aff'd, 182 F.3d 902 (2d Cir. 1999) (holding correctional officer's comments
suggesting that plaintiff was a homosexual and directing other inmates to sexually harass and “jump” him could support an
Eighth Amendment excessive force claim if they incited other inmates to assault plaintiff, placing him at grave risk of assault);
see also Smith v. Miller, No. 15-CV-9561, 2017 WL 4838322, at *12 (S.D.N.Y. Oct. 23, 2017) (“[T]here is no question that
instructing or encouraging other [prisoners] to attack an inmate poses an objectively serious risk of harm.”); Bouknight v.
Shaw, No. 08-CV-5187, 2009 WL 969932, at *4 (S.D.N.Y. Apr. 6, 2009) (“[A] prisoner can state a claim under the Eighth
Amendment against a corrections officer who spreads malicious rumors about him if the rumors incited other inmates to assault
[the plaintiff] ..., thereby placing him at grave risk of physical harm.”) (quotation marks and citation omitted). Accordingly, “[a]
supported allegation that a correctional official made statements intending to incite inmates to attack another inmate may state
a claim under the Eighth or Fourteenth Amendment.” Mirabella, 2016 WL 4678980, at *4. at 3–4 (holding that disseminating
information about a plaintiff's sex offense charges to inmates and other correctional officers and informing plaintiff that he had
a “hit” on him could establish an Eighth Amendment violation).
While Brown was informing the inmates of a policy change, which arguably has a penological purpose, it is unclear that notifying
other inmates that Plaintiff was responsible for this disfavored policy change holds any penological value. Additionally, it is
clear that disseminating this information exposed Plaintiff to risk, as he was attacked immediately after the information was
provided to other inmates without any other provocation or apparent reason. (Defs.’ 56.1 ¶¶ 4–5; Martin Decl. Ex. 1, at 18:23–
19:25.) Accordingly, it will be for the jury to decide whether Brown “[i]ntentionally expos[ed]” Plaintiff “to the risk of harm ...
with no penological purpose” by identifying him as the source of a undesirable policy change. Mirabella, 2016 WL 4678980,
at *4; see also Balentine v. Doe, No. 21-CV-1383, 2022 WL 17818553, at *6 (N.D.N.Y. Dec. 20, 2022) (holding claims that a
guard's “public statement to several inmates that Plaintiff is ‘special’ at washing dishes shortly after Plaintiff was hospitalized
for refusing to wash other inmates’ dishes” with corroborating information from other inmates that the guard wanted inmates
to “beat [Plaintiff's] ass” survived); Brown v. Griffin, No. 19-CV-02296, 2022 WL 767086, at *6 (S.D.N.Y. Mar. 14, 2022)
(“[T]elling other inmates that Plaintiff is a racist would create a substantial risk of harm that he be injured or attacked, which
[Defendant] disregarded, and clearly does not have any kind of penological interest.”); cf. Zielinski v. Annucci, No. 17-CV-1042,
2019 WL 2870337, at *10 (N.D.N.Y. Mar. 19, 2019), report and recommendation adopted, No. 17-CV-1042, 2019 WL 2869608
(N.D.N.Y. July 3, 2019) (dismissing failure to protect claim when plaintiff alleged that an unnamed inmate assaulted him and
that the attack was “orchestrated” by guards with no factual support).
III. Conclusion
For the foregoing reasons, Defendants’ Motion is denied. The Court will hold a status conference on October 12, 2023 at 10 A.M.
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2023 WL 6199094
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Footnotes
1 Local Civil Rule 56.1(a) requires the moving party to submit a “short and concise statement, in numbered paragraphs, of
the material facts as to which the moving party contends there is no genuine issue to be tried.” Local Civ. R. 56.1(a). The
nonmoving party, in turn, must submit “a correspondingly numbered paragraph responding to each numbered paragraph
in the statement of the moving party, and if necessary, additional paragraphs containing a separate, short[,] and concise
statement of additional material facts as to which it is contended that there exists a genuine issue to be tried.” Id. at
56.1(b). “If the opposing party ... fails to controvert a fact set forth in the movant's Rule 56.1 statement, that fact will
be deemed admitted pursuant to the local rule.” Baity v. Kralik, 51 F. Supp. 3d 414, 418 (S.D.N.Y. 2014) (citation and
quotation marks omitted); see also T.Y. v. N.Y.C. Dep't of Educ., 584 F.3d 412, 418 (2d Cir. 2009) (same). “A pro se
litigant is not excused from this rule.” Brandever v. Port Imperial Ferry Corp., No. 13–CV–2813, 2014 WL 1053774,
at *3 (S.D.N.Y. Mar. 13, 2014) (italics omitted).
Here, Defendants filed and served their statement pursuant to Rule 56.1, (see Defs.’ 56.1), and sent the required
Local Rule 56.2 Notice to Plaintiff (see Dkt. No. 95). However, Plaintiff failed to submit a response to Defendants’
56.1 Statement of Facts. (See generally Dkt.) Accordingly, the Court may conclude that the facts in Defendants’ 56.1
Statement are uncontested and admissible. See Brandever, 2014 WL 1053774, at *3 (concluding that because the pro
se plaintiff did not submit a Rule 56.1 statement in response to the defendant's statement of facts, “there [were] no
material issues of fact”); Anand v. N.Y. State Div. of Hous. & Cmty. Renewal, No. 11–CV–9616, 2013 WL 4757837,
at *7 (S.D.N.Y. Aug. 29, 2013) (same).
Nevertheless, in light of the “special solicitude” afforded to pro se litigants “when confronted with motions for summary
judgment,” Graham v. Lewinski, 848 F.2d 342, 344 (2d Cir. 1988), the Court will “in its discretion opt to conduct an
assiduous review of the record” when deciding the instant Motion, Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d
Cir. 2001). See also Houston v. Teamsters Local 210, Affiliated Health & Ins. Fund–Vacation Fringe Ben. Fund, 27
F. Supp. 3d 346, 349 (E.D.N.Y. 2014) (“Although [the] plaintiffs did not file a Rule 56.1 statement, the Court has
independently reviewed the record to ensure that there is uncontroverted evidence to support the paragraphs referenced in
[the] defendants’ Rule 56.1.”); Pagan v. Corr. Med. Servs., No. 11–CV–1357, 2013 WL 5425587, at *2 (S.D.N.Y. Sept.
27, 2013) (explaining that “[t]he [c]ourt ha[d] considered the [motions for summary judgment] in light of the entirety
of the record to afford [the pro se] [p]laintiff the special solicitude to which he [was] entitled” where the plaintiff failed
to submit a Rule 56.1 response); Cherry v. Byram Hills Cent. Sch. Dist., No. 11–CV–3872, 2013 WL 2922483, at *1
(S.D.N.Y. June 14, 2013) (italics omitted) (“[W]here a pro se plaintiff fails to submit a proper ... Rule 56.1 statement in
opposition to a summary judgment motion, the [c]ourt retains some discretion to consider the substance of the plaintiff's
arguments, where actually supported by evidentiary submissions.” (quotation marks omitted)).
2 Plaintiff's Complaint was filed under penalty of perjury, therefore the Court considers it as affirmative evidence. See
Thomas v. Jacobs, No. 19-CV-6554, 2022 WL 504787, at *1 n.1 (S.D.N.Y. Feb. 17, 2022) (noting that the court would
consider allegation in plaintiff's original complaint as affirmative evidence as it was sworn under penalty of perjury as
required under 28 U.S.C. § 1746).
3 Plaintiff additionally testified that “Brown instigated the assault” by saying “that [Plaintiff] had filed a complaint that
the phone and the TV were being monopolized.” (Martin Decl. Ex. 1, at 20:7–13.) Plaintiff testified that Brown, in
telling an inmate who was going to change the channel to lock in, was “attempting to create friction between me and
the other inmates in that company.” (Id. at 20:25–21:4.) Plaintiff testified that “Correction Officers often use inmates as
their soldiers,” “if they don't like a particular inmate because he's filing grievances and complaints, they will encourage
another inmate to assault another inmate” and that Brown “didn't like [him] and he didn't like the complaints and
grievances that [he] was filing.” (Id. at 21:25–22:12.) Plaintiff additionally testified that three officers were standing
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at the entrance to the company and that “[i]t was a set up. They wanted to see me get hurt and they succeeded.” (Id.
at 20:15–20.) Insofar as this testimony can be interpreted as a claim that Brown intimidated Plaintiff, such a claim
cannot stand, as Plaintiff claims that he did in fact attempt to file a grievance—accordingly, it was not intimidation
from Brown that possibly prevented Plaintiff from filing a grievance. See Cicio v. Alvarez, No. 19-CV-9883, 2022 WL
1003796, at *5 (S.D.N.Y. Apr. 4, 2022) (“[W]hen an inmate files a grievance, notwithstanding the threats of retaliation
and intimidation of which that inmate complains, the failure to fully exhaust under the PLRA will not be excused on
this ground.”) (quotation marks and citation omitted); Whittington v. Ponte, No. 16-CV-1152, 2020 WL 2750372, at *9
(S.D.N.Y. May 27, 2020) (holding that the fact that plaintiff filed grievances contemporaneously with the challenged
incidents “cuts strongly against any theory of unavailability.”).
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2017 WL 3726759
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Benjamin THOMAS, Plaintiff,
v.
Mr. DEMEO, Case Manager; Mr. Pepeki, Unit Manager; Associate Warden Rodriguez; Ms. Bowe, Staff
Psychologist; Charles E. Samuels, Jr., Director; Joe Norwood, Regional Director; Howard Hufford, Warden;
Ms. Flowers, Unit Manager; Mr. W. McBride, S.I.S. Technician; J. M. Banks, (“DHO”), Defendants.
No. 15-CV-9559 (KMK)
|
Signed 08/28/2017
Attorneys and Law Firms
Benjamin Thomas, Chicago, IL, Pro Se Plaintiff.
Natasha W. Teleanu, Assistant United States Attorney, New York, NY, Counsel for Defendants.
OPINION & ORDER
KENNETH M. KARAS, UNITED STATES DISTRICT JUDGE
*1 Pro se Plaintiff Benjamin Thomas (“Plaintiff”), formerly incarcerated at Otisville Federal Correctional Institution
(“Otisville”), brings this action against nine employees (collectively, “Defendants”) of the Bureau of Prisons (“BOP”), alleging
violations of his First, Fifth, and Eighth Amendment rights. 1 Plaintiff asserts that he was subjected to unconstitutional
confinement conditions, was deprived of reasonable protection from his cellmate, was improperly disciplined for attempting to
submit grievances concerning such conditions, and that a conspiracy among prison officials deprived him of his constitutional
rights. (See generally Am. Compl. (Dkt. No. 17).) Before the Court is Defendants' Motion To Dismiss Plaintiff's Amended
Complaint. (See Dkt. No. 50.) For the reasons to follow, the Motion is granted.
I. Background
A. Factual Background
The following allegations are taken from Plaintiff's Amended Complaint and are accepted as true for the purposes of resolving
the instant Motion.
Plaintiff alleges that on or about February 23, 2013, he approached Otisville Correctional Counselor Gushue about the possibility
of moving his cellmate, Michaels, to an empty cell. (See Am. Compl. ¶ 16.) Plaintiff contends that Michaels suffered from
“mental health and blood born[e] diseases” and had “unsanitary personal hygiene problems.” (Id.) Plaintiff alleges that Michaels
was a “deranged prisoner who def[e]cate[d] and urinate[d] upon himself while on the top bunk above [Plaintiff],” and as
such, deprived Plaintiff of his ability to sleep. (Id. ¶ 20.) Plaintiff describes Michaels as an individual who was “known to
become violent at any time” and who was “alleged to have the [AIDS] virus,” which Plaintiff feared he would contract through
transmissions of bodily fluids. (Id.)
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Gushue, allegedly without providing any rationale, advised Plaintiff that a new cell for Michaels could not be provided “without
permission from [D]efendant Flowers or someone else in command.” (Id. ¶ 17.) The following day, Plaintiff inquired with Unit
Manager O'Maley as to the appropriate person that Plaintiff “could talk to about having inmate Michaels move to an empty
cell.” (Id. ¶ 18.) Plaintiff alleges that O'Maley directed Plaintiff to speak with Lieutenant Meyers or Gushue and explained
that it was not O'Maley's job to “enforce or instruct another inmate into keeping his living quarters or his personal self up to
another[ ] [inmate's] living conditions [standards].” (Id.) On February 25, 2013, Plaintiff approached Defendant Correctional
Officer Bowe about the possibility of having the staff psychologist direct Plaintiff's “Unit Team to move inmate Michaels to
a[ ] single cell assignment.” (Id. ¶ 19.) Plaintiff alleges that Defendant Bowe stated that she could not discuss other inmates
with Plaintiff and that Plaintiff should “show some compassion” for Michaels. (Id.)
*2 The following day, Plaintiff spoke with Defendant Associate Warden Rodriguez, who sent him to Defendant Case Manager
Repeki, who instructed Plaintiff to comply with Gushue's directions or risk “find[ing] himself in special housing.” (Id. ¶¶ 20–
23.) On March 1, 2013, Plaintiff approached Defendant Warden Hufford about his troubles with Michaels and was instructed
again to resolve the problem with the Unit Team. (See id. ¶ 24.) Defendant Hufford is alleged to have become irritated by
Plaintiff's assertion that the Unit Team and Defendant Rodriguez were threatening Plaintiff and failing to resolve the issue. (See
id.) On March 3, 2013, Plaintiff once again approached Defendants Rodriguez and Repeki and told them that he was “suffering
from physical exhaustion and sleep deprivation from [his] existing unconstitutional conditions of confinement” and warned that
he would “have his family contact the Justice Department about the gladiator program and unlawful [d]rafting [of] prisoners
into caregiver rolls [sic]” if they did not address his concerns. (Id. ¶ 25.) Defendants Rodriguez and Repeki allegedly then
instructed Plaintiff to “live in the real world of incarceration,” threatening him again with placement in the Special Housing
Unit (“SHU”) and introducing the threat of relocation “[across] the country to a place he would not appreciate.” (Id. ¶ 26.)
On March 6, 2013, Plaintiff went to Gushue's office and requested a “BP-8 Informal Resolution Complaint Form.” (Id. ¶
27). Gushue allegedly asked what the form was for, and upon Plaintiff's response that he was not required to “explain his
reasons,” Gushue “became enraged towards ... [P]laintiff's right to seek administrative process about the incompatibility between
cellmates and the staff's failure to resolve the issue.” (Id. ¶¶ 27–28.) Gushue, claiming that he had moved Michaels twice
already because of his behavior, subsequently sent Plaintiff to prison operation Lieutenant Meyers' office, again threatening
Plaintiff with placement in the SHU. (See id. ¶¶ 28.) Plaintiff appealed to Lieutenant Meyers that “[Plaintiff] was not required
to be a babysitter for unstable convicts, known for their assaultive conduct, who should be in Springfield or Buckner medical
centers.” (Id. ¶ 29.) However, Meyers reiterated the need for Plaintiff to work it out with the Unit Team or risk placement in
SHU and a potential transfer to a different facility. (See id.)
On March 9, 2013, Plaintiff contends that, “unable to bear [Michaels'] foul smell [any] more,” he instructed Michaels to use
the toilet and take a shower, or “find another cell to live in before the room had to be secured for count.” (Id. ¶ 30.) At some
point that same day, Plaintiff alleges that Michaels told Unit Manager O'Maley that either himself or Plaintiff had to move
“because their [sic] will be trouble between them.” (Id. ¶ 31.) Consequently, Plaintiff alleges that on March 9, 2013, he was
attacked by Michaels and they fought “for a couple of minutes before Mr. Michaels surrendered the battle he started.” (Id. ¶
32.) Plaintiff also alleges that during the altercation, an unnamed unit officer locked the door and left the scene upon Gushue's
“suggestion to let things happen.” (Id.) Following the incident, Plaintiff alleges that both he and Michaels were “escorted to
the operation Lieutenant's Office,” “taken to [the] medical department for assessment,” and then “taken to special housing for
investigation.” (Id. ¶ 33.)
Plaintiff contends that on March 15, 2013, he met with Defendant Special Investigative Support (“SIS”) Technician McBride
and detailed the “acts and omissions” of Gushue and Defendants Repeki and Rodriguez, which led to his altercation with
Michaels. (Id. ¶ 34.) Plaintiff alleges that McBride “became extremely hostile” toward Plaintiff and stated that Plaintiff “made
a mistake in maintaining [his] position, and should just take his punishment without protest.” (Id.) Following their meeting,
McBride “wrote a[ ] conduct report upon [P]laintiff and charged him with code #201[:] Fighting with another person.” (Id. ¶
35.) Plaintiff contends that in an effort to cover up the prohibited conduct of fellow staff members, McBride's report omitted
“critical facts” favorable to Plaintiff and “used agency investigative regulation power to exten[d] the (‘24’) hour time limitation
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in serving the shot on a simple altercation staff orchestrated [sic].” (Id.) On the following day, Defendant Case Manager DeMeo
“conduct[ed] a ‘UDC’ hearing on [McBride's] incident report ... and asked whether [P]laintiff wanted to make a statement about
the incident.” (Id. ¶ 36.) At this point, Plaintiff called into question Defendant DeMeo's authority to conduct the hearing because
DeMeo himself “was a party to the same incident.” (Id.) Plaintiff alleges that DeMeo then became “hostile” and stated that
Plaintiff would “regret [Plaintiff's] false claims, and had no business in questioning employees about their activities.” (Id.)
*3 About a week later, on or about March 26, 2013, Plaintiff was “taken before [D]efendant Banks for [a] final disciplinary
case hearing,” during which Plaintiff detailed “his efforts to avoid combat” with Michaels and cited “staff direct involvement
in this incident” as a mitigating factor. (Id. ¶ 37.) Ultimately, Defendant Banks imposed a sanction of “[twenty]-seven days loss
of goodtime,” telling Plaintiff that he “[did] not have a ‘right’ to raise any kin[d] of self[-]defense claim[ ] because it indangers
[sic] staff safety and their ability to control the prison environment.” (Id. ¶¶ 38–39.)
In April 2013, Defendant Flowers visited Plaintiff in the SHU to “conduct a unit review upon [P]laintiff's status.” (Id. ¶ 40.)
Defendant Flowers allegedly told Plaintiff that she had spoken to eight staff members who “told her about the problems that
had been occurring between Michaels and [Plaintiff]” prior to their altercation, but that any failure to take action on the part of
Gushue and Defendant DeMeo did not matter because Defendant Bowe had “decided that Mr. Michael[ ]s needed a caregiver
companion, and that they elected ... [P]laintiff to play that roll [sic].” (Id.) Plaintiff's custody score was thereafter raised an
additional six points and his transfer to Beaumont Penitentiary in Texas was initiated because he “had two other physical
altercations within the last thirty[-]six and should have done as instructed when it came to inmate Michaels due to the fact that
[P]laintiff was [a] prisoner with no rights who he cells with.” (Id.) 2
Plaintiff protested Flowers's decision, citing her “arbitrary and capricious actions outside the disciplinary process” and claiming
that Flowers “is not allowed to impose [sanctions] because [she] was ‘not’ the (‘DHO’) officer” responsible for imposing
sanctions on top of those already imposed by Defendant Banks. (Id. ¶ 41.) Defendant Flowers allegedly told Plaintiff that, in
addition to already having Defendants Rodriguez and Hufford “on board with her program,” this was the Bureau of Prisons
(“BOP”) and she could do what she wanted “on general principles alone.” (Id.) Plaintiff later contends that he spoke with
Defendants Rodriguez and Hufford about his transfer to Beaumont, claiming that his family should not be punished for the
mistakes of prison officials. (See id. ¶ 42.) Rodriguez “back[ed] [the] staff decisions in this matter” and cited Plaintiff's failure
to work with the unit team as support for Plaintiff's transfer. (Id. ¶ 43.)
In May 2013, Plaintiff alleges he was “forced to go on a hunger strike to make [D]efendant Flowers and Gushue [ ] locate a
previously filed informal resolution BP-8 Complaint Form and to issue both a Tort Claim Form and BP-10 appeal form.” (Id. ¶
44.) Plaintiff contends that Gushue and Defendants Flowers, DeMeo, Repeki, and McBride “could not justify their intentional
conduct and ... imposition of unconstitutional con[ ]finement,” and, as such, were “attempting to ha[ ]rass, obstruct, delay, and
intimidate [Plaintiff] to drop his complaints.” (Id.) Plaintiff also alleges that around that time, he was “coerced” by “staff from
the Health Services Department” into agreeing not to receive medical care “in segregation while pending a transfer” and to
“waive his medical care rights” while being “placed in transient [sic] to another facility.” (Id. ¶ 45.)
Plaintiff lastly alleges that, during the course of his confinement and through the date of his Amended Complaint, Defendants
Samuels, Norwood, Hufford, and Rodriguez “entered into or continued a line of collective bargain[in]g agreements” carried
out in response to “public sector union demands” from the “American Federation of Government [E]mployee[s] Union Council
of Prison Locals.” (Id. ¶¶ 46, 55.) Plaintiff contends that this union has acted as a “shadow organization” for over 40 years,
“negotiat[ing] deals with the Bureau of Prisons” to deprive inmates of their constitutional rights. (Id. ¶¶ 46–48, 56.) Specifically,
Plaintiff alleges that Defendants Samuels, Norwood, Hufford, and Rodriguez entered into agreements with Defendants DeMeo,
Repeki, Bowe, McBride, and Banks to “disregard their duties under the Statutes, Rules, and Regulations” and “sanitize
[Plaintiff's] and other inmates['] rights.” (Id. ¶¶ 47, 54–56.) Plaintiff contends that these agreements had the effect of “forc[ing]
inmates into court cases they [could not] afford,” (id. ¶ 47), and in particular, are the reason for Defendants' ignorance of
Plaintiff's complaints and “obstruction of his administrative remedy process,” (id. ¶ 48).
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*4 Plaintiff requests that the Court issue a declaratory judgment and an award of damages. (Id. at 23.) Specifically, Plaintiff
requests $50,000 in monetary damages from each Defendant for “acts and omissions based upon the ordeal they cause[d] [him],”
and $100,000 in punitive damages from each Defendant for their “intentional and wilful [sic] conduct to deprive [P]laintiff of
his civil rights.” (Id.)
B. Procedural History
Plaintiff filed his initial complaint on December 4, 2015, naming Defendants O'Maley, Meyers, Gushue, DeMeo, Repeki,
Rodriguez, and Bowe. (See Dkt. No. 2.) 3 Plaintiff filed an Amended Complaint on July 8, 2016, naming Samuels, Norwood,
Hufford, Flowers, McBride, and Banks as additional defendants. (See Dkt. No. 17.) Pursuant to an Order dated January 30,
2017, (Dkt. No. 49), Defendants filed the instant Motion To Dismiss Plaintiff's Amended Complaint on February 15, 2017,
(Dkt. No. 50). Plaintiff has not filed any response.
II. Discussion
A. Standard of Review
When ruling on a Rule 12(b)(6) motion to dismiss, the Court must accept all factual allegations in the complaint as true and
draw all reasonable inferences in the plaintiff's favor. Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014). The Court, however,
is not required to credit “mere conclusory statements” or “[t]hreadbare recitals of the elements of a cause of action.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “To survive a motion to
dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its
face.” Id. at 678 (internal quotation marks omitted). A claim is facially plausible “when the plaintiff pleads factual content that
allows the [C]ourt to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Specifically,
the plaintiff must allege facts sufficient to show “more than a sheer possibility that a defendant has acted unlawfully,” id., and
if the plaintiff has not “nudged [his] claims across the line from conceivable to plausible, [the] complaint must be dismissed,”
Twombly, 550 U.S. at 570.
On a Rule 12(b)(6) motion to dismiss, the question “is not whether a plaintiff will ultimately prevail but whether the claimant is
entitled to offer evidence to support the claims.” Sikhs for Justice v. Nath, 893 F. Supp. 2d 598, 615 (S.D.N.Y. 2012). Accordingly,
the “purpose of Federal Rule of Civil Procedure 12(b)(6) is to test, in a streamlined fashion, the formal sufficiency of the
plaintiff's statement of a claim for relief without resolving a contest regarding its substantive merits.” Halebian v. Berv, 644
F.3d 122, 130 (2d Cir. 2011) (internal quotation marks omitted). To decide the motion, the Court “may consider facts asserted
within the four corners of the complaint together with the documents attached to the complaint as exhibits, and any documents
incorporated in the complaint by reference.” Peter F. Gaito Architecture, LLC v. Simone Dev. Corp., 602 F.3d 57, 64 (2d Cir.
2010) (internal quotation marks omitted).
Where, as here, a plaintiff proceeds pro se, the court must “construe[ ] [his] [complaint] liberally and interpret[ ] [it] to raise
the strongest arguments that [it] suggest[s].” Sykes v. Bank of Am., 723 F.3d 399, 403 (2d Cir. 2013) (internal quotation marks
omitted). However, “the liberal treatment afforded to pro se litigants does not exempt a pro se party from compliance with
relevant rules of procedural and substantive law.” Bell v. Jendell, 980 F. Supp. 2d 555, 559 (S.D.N.Y. 2013) (internal quotation
marks omitted); see also Caidor v. Onondaga County, 517 F.3d 601, 605 (2d Cir. 2008) (“[P]ro se litigants generally are required
to inform themselves regarding procedural rules and to comply with them.” (italics and internal quotation marks omitted)).
B. Analysis
1. Conditions of Confinement
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*5 Plaintiff first contends that Defendants Flowers, Rodriguez, Repeki, Bowe, and Hufford violated his Eighth Amendment
rights by requiring that Plaintiff remain in the same cell as Michaels. (See Am. Compl. ¶ 49.) Plaintiff believes that in doing
so, Defendants were “indifferen[t] to [his] health and [s]afety needs” and that they “disregard[ed] an excessive risk to the
possibility [of Plaintiff] catching [ ] contagious bacteria or disease from Mr. Michaels[’s] unsanitary hygiene conditions.” (Id. ¶
50.) Defendants contend that the conditions of Plaintiff's confinement did not amount to a violation of his Eighth Amendment
rights. For the reasons set forth herein, Plaintiff's claim is dismissed without prejudice.
a. Applicable Law
It is axiomatic that “[t]he conditions of a prisoner's confinement can give rise to an Eighth Amendment violation.” Phelps v.
Kapnolas, 308 F.3d 180, 185 (2d Cir. 2002) (per curiam) (citing Farmer v. Brennan, 511 U.S. 825, 828 (1994)). “In such cases,
a prisoner may prevail only where he proves both an objective element—that the prison officials' transgression was ‘sufficiently
serious’—and a subjective element—that the officials acted, or omitted to act, with a ‘sufficiently culpable state of mind,’ i.e.,
with ‘deliberate indifference to inmate health or safety.’ ” Id. (quoting Farmer, 511 U.S. at 834 (italics omitted)); see also
Garcia v. Fischer, No. 13-CV-8196, 2016 WL 297729, at *4 (S.D.N.Y. Jan. 22, 2016) (describing two elements of an Eighth
Amendment claim).
To satisfy the “objective” prong, “a plaintiff must show that the conditions, either alone or in combination, pose an unreasonable
risk of serious damage to [an inmate's] health, which can be satisfied if an inmate is deprived of basic human needs such as
food, clothing, medical care, and safe and sanitary living conditions.” Aikens v. Royce, No. 14-CV-663, 2016 WL 5720792, at
*6 n.10 (S.D.N.Y. Sept. 30, 2016) (quoting Walker v. Schult, 717 F.3d 119, 125 (2d Cir. 2013)) (internal quotations omitted).
“Ultimately, to establish the objective element of an Eighth Amendment claim, a prisoner must prove that the conditions of
his confinement violate contemporary standards of decency.” Phelps, 308 F.3d at 185. “[O]nly those deprivations denying ‘the
minimal civilized measure of life's necessities,’ are sufficiently grave to form the basis of an Eighth Amendment violation.”
Wilson v. Seiter, 501 U.S. 294, 298 (1991) (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)); see also Blyden v. Mancusi,
186 F.3d 252, 263 (2d Cir. 1999) (“Because society does not expect or intend prison conditions to be comfortable, only extreme
deprivations are sufficient to sustain a ‘conditions-of-confinement’ claim.”).
Under the “subjective” element, “a defendant ‘cannot be found liable under the Eighth Amendment for denying an inmate
humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety; the
official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and
he must also draw the inference.’ ” Aikens, 2016 WL 5720792, at *6 n.10 (quoting Phelps, 308 F.3d at 185–86). “A prison
official may be found to have had a sufficiently culpable state of mind if he participated directly in the alleged event, or learned
of the inmate's complaint and failed to remedy it, or created or permitted a policy that harmed the inmate, or acted with gross
negligence in managing subordinates.” Id. (internal quotation marks omitted). Allegations of mere negligence by prison officials
will not support a claim under the Eighth Amendment. See Edwards v. City of New York, No. 08-CV-5787, 2009 WL 2596595,
at *2 (S.D.N.Y. Aug. 24, 2009) (citing County of Sacramento v. Lewis, 523 U.S. 833, 849 (1998); Farmer, 511 U.S. at 836;
Daniels v. Williams, 474 U.S. 327, 328 (1986)).
b. Analysis
*6 The poor hygienic conditions in Plaintiff's cell coupled with his unsubstantiated, misinformed fear of contracting the HIV/
AIDS virus did not pose objectively serious risks to Plaintiff's health. As such, the conditions of Plaintiff's cell did not give
rise to a constitutional violation.
First, Plaintiff's claims concerning the “foul smell” and poor hygienic conditions of his cellmate fail to rise to the level of
an Eighth Amendment violation. “Only extreme deprivations are sufficient to sustain a ‘conditions-of-confinement’ claim.”
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Knight v. Mun. Corp., No. 14CV-3783, 2016 WL 4017208, at *5 (S.D.N.Y. May 27, 2016) (citing Blyden, 186 F.3d at 263).
Moreover, it is well-established that “sharing a cell with an individual with body odor, or an individual who does not bathe
frequently, is a far cry from the ‘wanton and unnecessary infliction of pain’ against which the Eighth Amendment protects.”
Jones v. Goord, 435 F. Supp. 2d 221, 237 (S.D.N.Y. 2006); see also Cannon v. City of New York, No. 11-CV-8983, 2013 WL
1234962, at *6 (S.D.N.Y. Jan. 29, 2013) (“Smelling the odors of other inmates ... does not meet the level of harm required to
state a constitutional claim.”), adopted by 2013 WL 1248546 (S.D.N.Y. Mar. 27, 2013).
The unhygienic practices of his cellmate and resulting “sewage smell” are alleged to have caused Plaintiff “severe [headaches],
nausea, [ ] repulsion to food,” and loss of sleep. (Am. Compl. ¶ 22.) While such conditions and their alleged effects on Plaintiff
are unfortunate, inmates are not guaranteed clean, odorless cells. In fact, “society does not expect or intend prison conditions
to be comfortable.” Knight, 2016 WL 4017208, at *5; see also Rhodes, 42 U.S. at 347 (noting that the Constitution does not
require “comfortable” prison conditions).
Moreover, the allegations in the Amended Complaint that Michaels “def[e]cate[d] and urinate[d] upon himself while on the
top bunk above [Plaintiff],” (Am. Compl. ¶ 20), do not indicate that such activity did anything more than contribute to the foul
smell. Exposure to human waste can, in extreme circumstances, give rise to an unconstitutional conditions-ofconfinement claim
under the Eighth Amendment. See Walker, 717 F.3d at 127. However, Plaintiff has not alleged facts showing that the human
waste was not cleaned up, that it was allowed to linger in the cell for any period of time, or that he ever came into physical
contact with it. Cf., e.g., id. (holding that “unsanitary conditions lasting for mere days may constitute an Eighth Amendment
violation”); Gaston v. Coughlin, 249 F.3d 156, 165 (2d Cir. 2001) (holding that the plaintiff stated a claim where “for several
consecutive days and one noncontiguous day ..., the area directly in front of his cell was filled with human feces, urine, and
sewage water”); Wright v. McMann, 387 F.2d 519, 522 (2d Cir. 1967) (holding that the plaintiff had stated a claim where the
“bodily wastes of previous occupants ... covered the floor, the sink, and the toilet”). While Plaintiff is not required to detail the
“exact extent or duration of his exposure to unsanitary conditions,” Walker, 717 F.3d at 128 (alteration and internal quotation
marks omitted), he must provide at least enough allegations for the Court to assess “both the duration and the severity of [his]
experience of being exposed to unsanitary conditions,” Willey v. Kirkpatrick, 801 F.3d 51, 68 (2d Cir. 2015).
*7 Here, Plaintiff alleges only that Michaels “def[e]cate[d] and urinate[d] upon himself on the top bunk.” Plaintiff does not
allege that he ever came in contact with Michaels' human waste, or that prison officials unduly delayed cleaning up any mess or
allowed the waste to remain unattended for any period of time. Thus, Plaintiff's exposure to such waste begins and ends with the
foul smell that it produced, which, as noted, is not sufficient to state a conditions of-confinement claim. See Cannon, 2013 WL
1234962, at *6 (“Smelling the odors of other inmates ... does not meet the level of harm required to state a constitutional claim.”).
As such, because the unsanitary, foul-smelling conditions of Plaintiff's confinement do not implicate his Eighth Amendment
rights, Plaintiff's claims in this regard are dismissed without prejudice. Plaintiff is permitted to amend his Complaint to include
additional allegations, including any regarding the length and severity of his exposure to Michaels' human waste. See Willey,
801 F.3d at 68.
Plaintiff's claims alleging risk of exposure to “blood-born[e] diseases” similarly fail. Plaintiff can state an Eighth Amendment
claim in this respect by alleging that Defendants' deliberate indifference exposed him to an unreasonable risk of contracting
HIV/AIDS. See Helling v. McKinney, 509 U.S. 25, 35 (1993) (inmate's involuntary exposure to environmental tobacco smoke
was sufficient basis for an Eighth Amendment claim).
However, Plaintiff's allegations fail to plausibly establish that any such risk existed. In particular, even if Michaels was HIV/
AIDS positive, the conditions of Plaintiff's confinement did not exacerbate his risk of contracting the virus. It is well established
that “a prisoner's confinement in proximity to carriers of the AIDS virus does not violate the Eighth Amendment[ ].” Aiken v.
Cottingham, No. 08-CV-2491, 2008 WL 4449952, at *3 (D.S.C. Sept. 26, 2008); see also Sosa v. Cleaver, No. 03-CV-1707,
2005 WL 1205119, at *5–6 (D. Conn. May 18, 2005) (same); Bolton v. Goord, 992 F. Supp. 604, 628 (S.D.N.Y. 1998) (same).
Plaintiff alleges only that he was exposed to the foul-smelling and unhygienic conditions inherent in sharing a cell with Michaels.
Even after their physical altercation, Plaintiff does not contend that he ever came into contact with Michaels' bodily fluid(s).
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For example, there is no indication that Plaintiff was ever exposed to a situation in which blood was transferred from Michaels
to Plaintiff. See Massick v. N. Cent. Corr. Facility, 136 F.3d 580, 581 (8th Cir. 1998) (exposure to open wounds established
unreasonable risk); see also Jackson v. Halberfield, No. 10-CV-45, 2011 WL 7278261, at *4, *6 (D. Nev. Dec. 15, 2011) (holding
that “physical altercations, which resulted in cuts, transferring blood from one another” were a factor in an unreasonable risk
assessment). While his fear of contracting HIV/AIDS from Michaels may have been real, Plaintiff's actual risk of contracting
the disease is not evident from his Amended Complaint. See Aikens, 2016 WL 5720792, at *6 n.10; see also Bolton, 992 F.
Supp. at 628 (“HIV is not spread by casual contact such as sharing sinks or toilets. Rather, it is most commonly spread through
contact with blood or semen.”). Thus, there exists no plausible claim here that Plaintiff was subjected to an unreasonable risk of
serious damage to his health. As such, this claim is dismissed without prejudice. Plaintiff is afforded the opportunity to amend
his Complaint to more properly illustrate the “objective prong” in this analysis.
2. Failure to Protect
The Court construes Plaintiff's Amended Complaint to be asserting an additional claim that Defendants' failure to protect him
from Michaels amounted to a violation of his Eighth Amendment rights. Plaintiff alleges that he told numerous prison officials
that Michaels was known for his “unstable [and] violent conduct,” that Michaels himself warned Unit Manager O'Maley of
the potential for trouble between the inmates, and that, in the course of their physical altercation, an unnamed unit officer was
instructed by Gushue to “let things happen.” (Am. Compl. ¶¶ 31, 32, 49) However, Meyers, O'Maley, and Gushue are no longer
named Defendants in this case and, accordingly, their alleged actions are not relevant here. Thus, the Court construes Plaintiff's
Amended Complaint to be claiming only that Defendant Rodriguez was aware of the risk to Plaintiff's safety and did not take
the appropriate measures to abate that risk. See Farmer, 511 U.S. at 832. Defendants contend that, while the alleged altercation
between Plaintiff and Michaels was sufficiently serious, Defendant Rodriguez did not consciously disregard a risk to Plaintiff's
safety. (See Defs.' Mem. of Law in Supp. of Mot. To Dismiss (“Defs.' Mem.”) 18 (Dkt. No. 51).). The Court agrees.
*8 An inmate may state a claim under the Eighth Amendment against a prison official under the theory that prison officials
failed to protect him or her. See Farmer, 511 U.S. at 847; see also Hayes v. N.Y.C. Dep't of Corr., 84 F.3d 614, 620 (2d Cir.
1996) (“The Eighth Amendment requires prison officials to take reasonable measures to guarantee the safety of inmates in
their custody.”). A plaintiff seeking to make such a claim must allege both an objective and subjective element: that “he is
incarcerated under conditions posing a substantial risk of serious harm,” and that the prison official had a “sufficiently culpable
state of mind, to wit, [was] deliberately indifferent to the harmful conditions.” Randle v. Alexander, 960 F. Supp. 2d 457, 473
(S.D.N.Y. 2013) (emphasis and internal quotation marks omitted); see also Parris v. N.Y. State Dep't Corr. Servs., 947 F. Supp.
2d 354, 362 (S.D.N.Y. 2013) (same); Warren v. Goord, 476 F. Supp. 2d 407, 410 (S.D.N.Y. 2007) (same). Deliberate indifference
exists “when an official ‘has knowledge that an inmate faces a substantial risk of serious harm and he disregards that risk by
failing to take reasonable measures to abate the harm.’ ” Parris, 947 F. Supp. 2d at 363 (quoting Hayes, 84 F.3d at 620).
Here, Plaintiff alleges that he told Rodriguez on February 26, 2013 that he was suffering from sleep deprivation “as a result of
being celled with a person known to become violent at anytime.” (Am. Compl. ¶ 20.) In general, to satisfy the requirements of
an Eighth Amendment failure to protect claim, a “plaintiff must allege that the defendants knew of a prior altercation between
the plaintiff and his attacker, or of threats that had been made against the plaintiff.” Parris, 947 F. Supp. 2d at 363. In the
absence of such allegations, prison officials are not liable for any harm caused by inmate-on-inmate violence. See Fernandez v.
N.Y.C. Dep't of Corr., No. 08-CV-4294, 2010 WL 1222017, at *4 (S.D.N.Y. Mar. 29, 2010) (dismissing the complaint where the
plaintiff had not pled “that he and [his attacker] were involved in a prior altercation, that [the attacker] had previously threatened
him, or that there was any other reason for officers at [the facility] to be on notice that there was a risk of altercation between
[the] [p]laintiff and [his attacker]”).
Here, Plaintiff has merely alleged that he was celled with an inmate who was known to be violent. (See Am. Compl. ¶ 20.) Given
that inmates in federal prison are often incarcerated specifically because of some record of violence, it can hardly be said that
Plaintiff's comments to Rodriguez warranted a need for further protection, especially in the absence of any history of violence
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between Michaels and Plaintiff. Simply put, “a failure to protect claim requires more than a showing that the correctional
facility contains dangerous conditions.” Manning v. Griffin, No. 15-CV-3, 2016 WL 1274588, at *10 (S.D.N.Y. Mar. 31, 2016)
(citing Edney v. Kerrigan, No. 00-CV-2240, 2004 WL 2101907, at *6 (S.D.N.Y. Sept. 21, 2004) (report and recommendation)).
Accordingly, Rodriguez did not consciously disregard any substantial risk to Plaintiff's safety and, as such, his conduct does
not rise to the level of an Eighth Amendment violation. Plaintiff's claims in this respect are dismissed without prejudice.
3. First Amendment Retaliation
Plaintiff further contends that Defendants Rodriguez, Flowers, DeMeo, Repeki, and Hufford sought disciplinary action
in response to Plaintiff “observing his right to redress of his grievances.” (Am. Compl. ¶ 51.) The Court construes the
Amended Complaint to be additionally asserting that Defendants McBride and Banks retaliated by “falsifying an administrative
investigation” and depriving Plaintiff of “goodtime credits.” (See id. ¶ 52.) Defendants contend that Plaintiff has failed to
plausibly state a constitutional claim, as there are insufficient allegations to plausibly show a “causal connection between
Plaintiff's filing of grievances and the alleged retaliatory actions.” (Defs.' Mem. 21.) The Court agrees.
*9 To state a First Amendment retaliation claim, a plaintiff must allege “(1) that the speech or conduct at issue was protected,
(2) that the defendant took adverse action against the plaintiff, and (3) that there was a causal connection between the protected
conduct and the adverse action.” Holland v. Goord, 758 F.3d 215, 225 (2d Cir. 2014) (alteration and internal quotation marks
omitted); see also Washington v. Chaboty, No. 09-CV-9199, 2015 WL 1439348, at *9 (S.D.N.Y. Mar. 30, 2015) (same). The
inmate “bears the burden of showing that the protected conduct was a substantial or motivating factor in the prison officials'
disciplinary decision,” after which the “defendant official then bears the burden of establishing that the disciplinary action
would have occurred even absent the retaliatory motivation.” Holland, 758 F.3d at 225–26 (internal quotation marks omitted).
“[B]ecause virtually any adverse action taken against a prisoner by a prison official—even those otherwise not rising to the
level of a constitutional violation—can be characterized as a constitutionally proscribed retaliatory act,” the Second Circuit
has instructed district courts to “approach prisoner retaliation claims with skepticism and particular care.” Dolan v. Connolly,
794 F.3d 290, 295 (2d Cir. 2015) (internal quotation marks omitted); see also Graham v. Henderson, 89 F.3d 75, 79 (2d
Cir. 1996) (“Retaliation claims by prisoners are prone to abuse since prisoners can claim retaliation for every decision they
dislike.” (internal quotation marks omitted)).
While Plaintiff alleges that Defendants violated Plaintiff's rights “by seeking disciplinary action against ... [P]laintiff for
observing his right to redress of his grievances based upon acts and omissions they personally committed or aided or abetted
to bring about,” (Am. Compl. ¶ 51), absent from the Amended Complaint is any allegation that Plaintiff ever filed a grievance
regarding the conduct described here. At one point, Plaintiff details that he “was forced to go on a hunger strike to make
[D]efendants Flowers and Gush[ue] ... locate a previously filed informal resolution BP-8 Complaint Form and to issue both a
Tort Claim Form and BP-10 appeal form,” (id. ¶ 44), but he does not describe when that grievance was filed, what incidents
the grievance related to, or against whom it was filed. Moreover, Plaintiff alleges only that he made Flowers and Gushue (but
apparently no other Defendants) aware of the grievance in May 2013, two months after discipline was imposed on Plaintiff
for his altercation with Michaels and one month after the decision to move him to a new facility. (See id. ¶¶ 38–43.) In the
absence of any allegation that Plaintiff filed a grievance against these Defendants relating to these incidents, see Wright v.
Goord, 554 F.3d 255, 274 (2d Cir. 2009) (dismissing retaliation claim against a correction officer when the only alleged basis
for retaliation was a complaint about a prior incident by another correction officer), that any of Defendants were aware of that
grievance, Tirado v. Shutt, No. 13-CV-2848, 2015 WL 774982, at *10 (S.D.N.Y. Feb. 23, 2015) (“Absent evidence that any
defendant knew about his ... grievance, [the plaintiff] has failed to provide any basis to believe that they retaliated against him
for a grievance in which they were not named.”), adopted in relevant part by 2015 WL 4476027 (S.D.N.Y. July 22, 2015), or
that there was any temporal relationship between the grievance and the disciplinary action, see Rivera v. Goord, 119 F. Supp.
2d 327, 341 (S.D.N.Y. 2000) (dismissing retaliation claim where “[t]here was no temporal proximity between [the] plaintiff's
protected activity and [the defendant's] alleged acts of retaliation”), Plaintiff cannot state a retaliation claim. Plaintiff's First
Amendment claims are therefore dismissed without prejudice.
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4. Due Process
The Court construes the Amended Complaint to be additionally alleging that Plaintiff's due process rights were violated during
the course of the disciplinary proceedings that followed his altercation with Michaels, which resulted in Plaintiff's transfer to
a different facility and a loss of 27 days good time. (See Am. Compl. ¶¶ 39–40.) 4 Defendants contend that these sanctions
were within the Defendants' discretion, and that Plaintiff is merely contesting the outcome of his disciplinary proceeding. (See
Defs.' Mem. 22.)
*10 The Fifth Amendment prohibits the deprivation of a person's life, liberty, or property without due process of law. However,
in the prison context, “[l]awful incarceration brings about the necessary withdrawal or limitation of many privileges and rights.”
Walker v. City of New York, No. 11-CV-9611, 2012 WL 3037308, at *3 (S.D.N.Y. July 25, 2012) (citing Sandin v. Conner,
515 U.S. 472, 478 (1995)); see also Wolff v. McDonnell, 418 U.S. 539, 556 (1974) (inmates are not entitled to a “full panoply
of rights”).
As an initial matter, no procedural due process claim can be found if the plaintiff does not actually challenge the procedural
elements of the disciplinary hearings. See Franco v. Kelly, 854 F.2d 584, 587 (2d Cir. 1988) (“[T]he key inquiry in assessing an
allegation that an inmate has been found guilty of false disciplinary charges is whether or not the prison has provided the inmate
with the minimum procedural due process protections guaranteed by the Fourteenth Amendment.”). Indeed, “[a] correctional
officer's filing of unfounded charges does not give rise to procedural due process liability.” Benitez v. Ham, No. 04-CV-1159,
2009 WL 3486379, at *21 (N.D.N.Y. Oct. 21, 2009) (citing Freeman v. Rideout, 808 F.2d 949, 951 (2d Cir. 1986)). Plaintiff's
Amended Complaint alleges in a conclusory fashion that the hearing was not impartial due to “staff direct involvement in this
incident,” (Id. at ¶ 37), and that Defendant Banks had “predetermined the outcome” of this matter, (Am. Compl. ¶ 38). While it
is “improper for prison officials to decide the disposition of a case before it [i]s heard,” the Second Circuit has determined that
“the degree of impartiality required of prison hearing officials does not rise to the level of that required of judges generally,”
and given the “special characteristics of the prison environment, it is permissible for the impartiality of such officials to be
encumbered by various conflicts of interest that, in other contexts, would be adjudged of sufficient magnitude to violate due
process.” Francis v. Coughlin, 891 F.2d 43, 47 (2d Cir. 1989) (citation omitted). Plaintiff alleges no facts that Defendant Banks
was in any way “involve[ed] in th[e] incident,” (Am. Compl. ¶ 37), and fails to present any facts in support of his threadbare
allegation that Defendant Banks had “predetermined the outcome” of this matter, (Am. Compl. ¶ 38). Ultimately, Plaintiff does
not allege any actual procedural deficiencies in his disciplinary hearings, but instead appears to simply take issue with Banks's
decision to disregard Plaintiff's defense that he was acting out of necessity given the extreme circumstances he was placed in.
(See Am. Compl. ¶ 38.) Without more, Plaintiff's allegations do not render the proceedings unconstitutionally impartial and do
not present a plausible procedural due process claim.
With respect to the outcome of the hearing, while an imposition of discipline by a prison disciplinary board must be “supported
by some evidence in the record,” Superintendent Mass. Corr. Inst., Walpole v. Hill, 472 U.S. 445, 454 (1985), this standard is
satisfied where “there is any evidence in the record that could support the conclusion reached by the disciplinary board,” as the
Due Process Clause “does not require courts to set aside decisions of prison administrators that have some basis in fact,” id.
at 455–56. Thus, to the extent Plaintiff challenges the ultimate outcome of his disciplinary hearing, that challenge is without
merit—the allegations in the Amended Complaint make clear that there was some evidence, namely Plaintiff's altercation with
Michaels, (see Am. Compl. ¶ 35), from which the disciplinary board could determine that punishment was warranted. In the
absence of an allegation of insufficient process, the Due Process Clause requires nothing more. Thus, Plaintiff has failed to
state a plausible due process claim.
5. Equal Protection
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*11 “The Equal Protection Clause bars the government from selective adverse treatment of individuals compared with other
similarly situated individuals if such selective treatment was based on impermissible considerations such as race, religion,
intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person.” Bizzarro v.
Miranda, 394 F.3d 82, 86 (2d Cir. 2005) (emphasis and internal quotation marks omitted). To state a violation of the Equal
Protection Clause, a plaintiff must allege “that he was treated differently than others similarly situated as a result of intentional
or purposeful discrimination.” Phillips v. Girdich, 408 F.3d 124, 129 (2d Cir. 2005); see also Nash v. McGinnis, 585 F. Supp.
2d 455, 462 (W.D.N.Y. 2008) (“In order to plead a facially valid equal protection claim ... [a] plaintiff must allege: (1) that
he has been treated differently from similarly-situated inmates, and (2) that the discrimination is based upon a constitutionally
impermissible basis, such as race, religion, national origin, or some other protected right.”).
While the Equal Protection Clause is typically invoked to bring lawsuits claiming discrimination based on membership in a
protected class, where a plaintiff does not allege membership in a protected class, he may still prevail on a “class-of-one”
theory of equal protection. See Neilson v. D'Angelis, 409 F.3d 100, 104 (2d Cir. 2005), overruled on other grounds by Appel v.
Spiridon, 531 F.3d 138 (2d Cir. 2008) (per curiam). A class-of-one claim arises when a plaintiff claims that he was “intentionally
treated differently from others similarly situated and that there is no rational basis for the difference in treatment.” Village of
Willowbrook v. Olech, 528 U.S. 562, 564 (2000).
In order to succeed on such a claim, the plaintiff must establish that:
(i) no rational person could regard the circumstances of the plaintiff to differ from those of a comparator
to a degree that would justify the differential treatment on the basis of a legitimate government policy;
and (ii) the similarity in circumstances and difference in treatment are sufficient to exclude the possibility
that the defendants acted on the basis of a mistake.
Analytical Diagnostic Labs, Inc. v. Kusel, 626 F.3d 135, 140 (2d Cir. 2010) (quoting Neilson, 409 F.3d at 104). Class-of-
one plaintiffs must show “an extremely high degree of similarity between themselves and the persons to whom they compare
themselves.” Ruston v. Town Bd. for Town of Skaneateles, 610 F.3d 55, 59 (2d Cir. 2010) (internal quotation marks omitted).
“Because of the particular posture of a ‘class of one’ claim, the comparator's circumstances must be ‘prima facie identical.’
” Mosdos Chofetz Chaim, Inc. v. Village of Wesley Hills, 815 F. Supp. 2d 679, 693 (S.D.N.Y. 2011) (quoting Neilson, 409
F.3d at 105). The comparison to similarly situated individuals should “provide an inference that the plaintiff was intentionally
singled out for reasons that so lack any reasonable nexus with a legitimate government policy that an improper purpose—
whether personal or otherwise—is all but certain.” Neilson, 409 F.3d at 105. “It is well established that this pleading standard
is demanding.” Hampshire Recreation, LLC v. Village of Mamaroneck, No. 14-CV-7228, 2016 WL 1181727, at *6 (S.D.N.Y.
Mar. 25, 2016) (internal quotation marks omitted).
Plaintiff's Amended Complaint is ambiguous as to the extent that he is invoking his equal protection rights. It is possible, though
far from clear, that Plaintiff intends to allege that the prison official Defendants unlawfully and involuntarily assigned him a
caregiver role for Michaels and thereby violated his equal protection rights. However, Plaintiff does not sufficiently allege that he
was treated differently from other inmates in this regard, much less that any alleged “drafting” of inmates into caregiver roles for
those who may need them lacked any rational basis. Plaintiff's Amended Complaint provides at best conclusory allegations that
he was treated differently from similarly situated inmates at Otisville. Accordingly, his equal protection claims are dismissed.
See C-Tech of New Haven, Inc. v. Univ. of Conn. Health Ctr., No. 15-CV-1058, 2016 WL 3620713, at *3 (D. Conn. June 29,
2016) (dismissing equal protection claim where the plaintiffs “refer[red] to no comparators” in their complaint); Walzer v. Town
of Orangetown, No. 13-CV-7971, 2015 WL 1539956, at *6 n.5 (S.D.N.Y. Apr. 7, 2015) (holding that the plaintiff had not
stated an equal protection claim where “he ha[d] provided no comparators”). Plaintiff is afforded the opportunity to amend his
Complaint to more effectively plead his class-of-one allegations.
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6. Conspiracy
*12 Finally, the Court construes Plaintiff's Amended Complaint as alleging that Defendants Samuels, Norwood, Hufford, and
Rodriguez “entered into agreements” with Defendants DeMeo, Repeki, Bowe, McBride, and Banks to “sanitize [Plaintiff's] and
other inmates['] rights.” (Am. Compl. ¶¶ 54–56.) Plaintiff alleges that the conspiracy was carried out in response to “public
sector union demands” from the “American Federation of Government [E]mployee[s] Union Council of Prison Locals,” which
he alleges has acted as “shadow organization” for over 40 years, “negotiat[ing] deals with the Bureau of Prisons” to deprive
inmates of their constitutional rights. (Am. Compl. ¶¶ 46–48, 55.)
To prove a § 1983 conspiracy, “a plaintiff must show the following: (1) an agreement between two or more state actors ... (2)
to act in concert to inflict an unconstitutional injury; and (3) an overt act done in furtherance of that goal causing damages.”
McGee v. Dunn, No. 09-CV6098, 2015 WL 9077386, at *5 (S.D.N.Y. Dec. 16, 2015) (citing Pangburn v. Culbertson, 200 F.3d
65, 72 (2d Cir. 1999)), aff'd, 672 Fed.Appx. 115 (2d Cir. 2017). “A complaint containing only conclusory, vague, or general
allegations of conspiracy to deprive a person of constitutional rights cannot withstand a motion to dismiss.” Sommer v. Dixon,
709 F.2d 173, 175 (2d Cir. 1983); see also Micolo v. Fuller, No. 15-CV-6374, 2016 WL 6404146, at *6 (W.D.N.Y. Oct. 28,
2016) (same), reconsideration denied, 2017 WL 2297026 (W.D.N.Y. May 25, 2017). However, conspiracies are by their very
nature secretive operations that can hardly ever be proven by direct evidence. See United States v. Rivera, 971 F.2d 876, 890
(2d Cir. 1992). As such, circumstantial, rather than direct, evidence can be used to prove the existence of a conspiracy. See
Rounseville v. Zahl, 13 F.3d 625, 632 (2d Cir. 1994).
Plaintiff's Amended Complaint is completely devoid of any factual support for his wholly conclusory allegations of conspiracy.
See Sommer, 709 F.2d at 175. Even when considering the secretive nature of conspiracies, see Rivera, 971 F.2d at 890, the
Amended Complaint fails to provide even circumstantial allegations that the alleged conspiracy existed, much less any details as
to the extent of the alleged agreement or how Defendants collectively carried it out, see Rounseville, 13 F.3d at 632. Moreover, it
is difficult to ascertain exactly which Defendants are alleged to have formed the conspiracy or acted on behalf of it. Even when
liberally construed, the Plaintiffs conspiracy claims are wide-ranging and largely unintelligible. Consistent with Second Circuit
precedent, the Court declines to find a plausible conspiracy claim where the allegations are wholly conclusory and contain no
factual support whatsoever. Therefore, these claims are dismissed without prejudice. 5 Plaintiff is permitted to further amend
his Complaint to articulate his claims and provide factual support for the alleged conspiracy.
III. Conclusion
In light of the foregoing discussion, Defendants' Motion To Dismiss is granted. The Amended Complaint is dismissed without
prejudice. Plaintiff may file a Second Amended Complaint within 30 days of the date of this Opinion & Order correcting the
deficiencies outlined above. The Clerk of Court is respectfully directed to terminate the pending Motion, (see Dkt. No. 50), and
mail a copy of this Opinion & Order to Plaintiffs address on the docket.
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2017 WL 3726759
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Footnotes
1 Plaintiff, following his transfer to Beaumont Penitentiary in Texas, has since been released from prison and presently
resides in Chicago, IL.
2 Plaintiff's Amended Complaint does not specify what the “last thirty[-]six” is referencing (i.e. days, weeks, months).
3 Meyers, Gushue, and O'Maley are no longer named Defendants in this Action. As such, their alleged acts and omissions
are not considered in this analysis.
4 Plaintiff's Amended Complaint could also be construed as asserting that Defendant McBride's allegedly falsified report
amounted to a Due Process violation. However, as discussed above, Plaintiff's allegations in that area are wholly
conclusory. Accordingly, the Court declines to address those claims in the context of a Due Process violation.
5 Because Plaintiff has failed to state a plausible conspiracy claim, any equal protection claims that stem from the alleged
conspiracy are accordingly dismissed without prejudice.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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