Opinion
21-2795
11-13-2023
BENJAMIN BRAXTON, AKA OBED-EDOM BRAXTON, Plaintiff-Appellant, v. KEVIN BRUEN, Deputy Commissioner of Counsel, JEFF MCKOY, Deputy Commissioner of Program Services, JOSEPH BELLNIER, Deputy Commissioner of Facility Operations, DANIEL F. MARTUSCELLO, III, Deputy Commissioner of Administrative Services, CARL J. KOENIGSMANN, Deputy Commissioner Chief Medical Officer, Defendants-Appellees, SUPERINTENDENT BELL, Clinton Correctional Facility, SEARGEANT HOLLAND, Clinton Correctional Facility, SEARGEANT MARION, Clinton Correctional Facility, S. DEVLIN VARIN, FNPL LIC#0499, Defendants.
For Plaintiff-Appellant: LAUREN CRANE AND ABIGAIL GRISE, Rule 46.1(e) Law Students (Rachel Leung, Alec Wong, on the brief), Jonathan Romberg, of Counsel, Seton Hall University School of Law Center for Social Justice, Newark, NJ For Defendants-Appellees: SARAH L. ROSENBLUTH, Assistant Solicitor General, of Counsel (Barbara D. Underwood, Solicitor General, Andrea Oser, Deputy Solicitor General, on the brief) on behalf of Letitia James, Attorney General of the State of New York, Buffalo, NY
UNPUBLISHED OPINION
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER"). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 13th day of November, two thousand twenty-three.
Appeal from a judgment of the United States District Court for the Northern District of New York (Sannes, J.).
For Plaintiff-Appellant: LAUREN CRANE AND ABIGAIL GRISE, Rule 46.1(e) Law Students (Rachel Leung, Alec Wong, on the brief), Jonathan Romberg, of Counsel, Seton Hall University School of Law Center for Social Justice, Newark, NJ
For Defendants-Appellees: SARAH L. ROSENBLUTH, Assistant Solicitor General, of Counsel (Barbara D. Underwood, Solicitor General, Andrea Oser, Deputy Solicitor General, on the brief) on behalf of Letitia James, Attorney General of the State of New York, Buffalo, NY
Present: DEBRA ANN LIVINGSTON, Chief Judge, BARRINGTON D. PARKER, WILLIAM J. NARDINI, Circuit Judges
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is VACATED and REMANDED to the district court for further proceedings consistent with this order.
Plaintiff-Appellant Benjamin Braxton appeals from the October 25, 2021, judgment of the United States District Court for the Northern District of New York (Sannes, J.), granting Defendants-Appellees' summary judgment motion and dismissing his claim, brought pursuant to 42 U.S.C. § 1983, that Defendants-Appellees acted with deliberate indifference to his medical needs in violation of the Eighth Amendment. Braxton was incarcerated in Clinton Correctional Facility ("Clinton"), a New York State Department of Corrections and Community Supervision ("DOCCS") facility, where he alleges he was exposed to high levels of environmental tobacco smoke ("ETS") caused by indoor smoking in violation of DOCCS policy. Defendants-Appellees are members of DOCCS's Central Office Review Committee ("CORC"), the entity responsible for handling inmate grievance appeals, who allegedly failed to respond to letters that Braxton sent to them about his ETS exposure. Braxton argues on appeal that the district court abused its discretion by permitting Defendants-Appellees to file a renewed motion for summary judgment and by ultimately granting the motion. Braxton additionally argues that the district court abused its discretion by: (1) failing to reopen discovery; and (2) denying Braxton's motion to amend the complaint to add Clinton Superintendent Earl Bell as a defendant. We assume the parties' familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
Braxton is gender non-conforming and has used different pronouns in different filings. Because his counsel uses male pronouns in their brief, we do, as well.
Defendants-Appellees' initial motion for summary judgment was denied. After this Court's opinion in Tangreti v. Bachmann, 983 F.3d 609 (2d Cir. 2020), the motion, supported with additional affidavits, was renewed and subsequently granted.
I. The Renewed Motion for Summary Judgment
At the start, we discern no abuse of discretion in the district court's determination to reconsider its summary judgment ruling in light of this Court's decision in Tangreti. Between the denial of the initial motion for summary judgment on September 25, 2020-in which the district court applied the standards for supervisory liability set forth in Colon v. Coughlin, 58 F.3d 865 (2d Cir. 1995)-and the renewed motion for summary judgment on March 30, 2021, this Court clarified in Tangreti that plaintiffs "may not rely on a special test for supervisory liability," such as the gross negligence standard articulated in Colon, but rather must "plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution." 983 F.3d at 616 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009)). The district court accordingly reconsidered its summary judgment decision in light of Tangreti. To do so was entirely proper in the circumstances of this case.
As to the merits, Braxton argues that the district court erred in granting summary judgment to Defendants-Appellees because he raised triable issues of fact as to their personal involvement in the constitutional violations that are the basis for his claim. We disagree. Deliberate indifference in the context of Braxton's Eighth Amendment claim requires that an official "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." Tangreti, 983 F.3d at 619 (cleaned up). Here, there is no evidence that the Defendants-Appellees were personally involved in the alleged constitutional violations or were aware of any substantial risk to Braxton's health. See Provost v. City of Newburgh, 262 F.3d 146, 154 (2d Cir. 2001) (noting that "[p]ersonal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983") (quoting Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994)). Defendants-Appellees have averred that they never saw Braxton's grievances, did not personally serve on the CORC (but designated someone else to serve in their stead), and were not personally involved in the enforcement of the smoking policies as related to Braxton's allegations.
We review the district court's determination de novo, "construing the evidence in the light most favorable to the party against whom summary judgment was granted and drawing all reasonable inferences in that party's favor." Bey v. City of New York, 999 F.3d 157, 164 (2d Cir. 2021); see also Macfarlane v. Canadian Pac. Ry. Co., 278 F.3d 54, 56-57 (2d Cir. 2002) (discussing renewed summary judgment motion). Summary judgment is proper when there is "no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Truitt v. Salisbury Bank & Tr. Co., 52 F.4th 80, 85 (2d Cir. 2022) (quoting McElwee v. Cnty of Orange, 700 F.3d 635, 640 (2d Cir. 2012)).
We nevertheless conclude that in the circumstances of this case, it was premature for the district court to grant summary judgment in favor of Defendants-Appellees without first permitting Braxton an opportunity for additional discovery. Throughout this litigation, Braxton's theory of liability has been that the CORC members were made aware of his conditions of confinement through his letters to them and failed to take action to remedy what they knew to be unconstitutional conditions. For the first time at the renewed motion for summary judgment, Defendants-Appellees averred that they did not personally serve on the CORC but had delegated others to do so. The identities of these delegates were not available to Braxton beforehand and are still unknown. In such circumstances, Braxton, who was proceeding pro se, should have been afforded the opportunity through at least brief discovery to identify the subordinate officers who may have received his letters. As we stated in Davis v. Kelly:
[W]hen a pro se plaintiff brings a colorable claim against supervisory personnel, and those supervisory personnel respond with a dispositive motion grounded in the plaintiff's failure to identify the individuals who were personally involved, under circumstances in which the plaintiff would not have been expected to have that knowledge, dismissal should not occur without an opportunity for additional discovery.160 F.3d 917, 922 (2d Cir. 1998). After this opportunity for discovery, as Davis also teaches, "undisputed allegations that the [Defendants-Appellees] lacked personal involvement will ultimately suffice to dismiss" them from the case. Id. at 921.
Accordingly, we vacate the grant of summary judgment and remand to the district court to reopen discovery as to the identities of the CORC designees and the circumstances of their designation.
II. Amending the Complaint to Join Superintendent Bell
Braxton next argues that the district court improperly prevented him from amending his complaint to add Superintendent Bell as a defendant. "We review the district court's denial of leave to amend for abuse of discretion." Broidy Cap. Mgmt. LLC v. Benomar, 944 F.3d 436, 447 (2d Cir. 2019) (quotation marks and citation omitted).
Here, the district court did not construe the proposed amended complaint to assert an ETS claim against Superintendent Bell. Ordinarily, this would not be an abuse of discretion because the district court made no error of law, nor did it make a clearly erroneous assessment of the facts when it determined that the amended complaint only raised claims against Superintendent Bell with respect to an alleged assault, not the ETS exposure. Knife Rights, Inc. v. Vance, 802 F.3d 377, 389 (2d Cir. 2015) (noting that "ordinarily we will not identify [an abuse of discretion] absent an error of law, a clearly erroneous assessment of the facts, or a decision outside the available range of permitted choices"). At oral argument, however, the State, recognizing the serious nature of Braxton's allegations, agreed with the Court that it would like to be apprised of the situation at Clinton regarding ETS and suggested that "one possible route would be to remand for service on Bell." Oral Arg. 39:06-40:17. In this unusual posture, we remand for amendment of the complaint to join Superintendent Bell as a defendant to Braxton's ETS claim and for service on him.
We agree with the district court as to its conclusion not to permit amendment to add these unrelated claims.
* * *
We have considered Braxton's remaining arguments and find them to be without merit, with one significant proviso. Braxton argues that the district court abused its discretion by "failing to direct pro bono counsel . . . to assist [him] in responding" to the renewed motion for summary judgment. Braxton Br. 66. We disagree that the district court's decision arose to an abuse of discretion.
Nonetheless, we pause to reiterate that during oral argument the State attested to the need to discover the facts regarding ETS at Clinton. We have no doubt given this representation that Braxton meets the threshold requirements for appointment of pro bono counsel, that counsel would aid him in "investigat[ing] the crucial facts," and that "appointment of counsel would be more likely to lead to a just determination." See Hodge v. Police Officers, 802 F.2d 58, 61-62 (2d Cir. 1986). In such circumstances, the interests of justice will best be served if pro bono counsel is available to assist Braxton on remand. Per 28 U.S.C. § 2106, this Court may "direct the entry of such appropriate judgment, decree, or order, or require such further proceedings to be had as may be just under the circumstances." Under that authority, on remand, the district court shall appoint Victor L. Hou of Cleary Gottlieb Steen &Hamilton LLP as pro bono counsel.
Accordingly, we VACATE the judgment of the district court and REMAND the case for further proceedings consistent with this order.