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finding no personal involvement by prison superintendent where the plaintiff alleged that the "[superintendent's] negligent training and supervision of the [d]efendant [c]orrections [o]fficers caused the [p]laintiff's injuries" but "provide[d] no facts to support [the superintendent's] personal involvement in the alleged assault," reasoning that "[v]ague and conclusory allegations that a supervisor negligently failed to train or supervise subordinate employees are not sufficient to establish personal involvement so as to give rise to personal liability."
Summary of this case from Gantt v. FerraraOpinion
9:14-CV-00783 (GLS/TWD)
10-20-2015
TROY MCRAE, Plaintiff, v. C.O. GENTILE, et al., Defendants.
APPEARANCES: TROY MCRAE Plaintiff pro se 06-A-3212 Southport Correctional Facility P.O. Box 2000 Pine City, NY 14871 HON. ERIC T. SCHNEIDERMAN Attorney General for the State of New York Counsel for Defendants The Capitol Albany, NY 12224 OF COUNSEL: CATHY Y. SHEEHAN, ESQ.
APPEARANCES: TROY MCRAE
Plaintiff pro se
06-A-3212
Southport Correctional Facility
P.O. Box 2000
Pine City, NY 14871
HON. ERIC T. SCHNEIDERMAN
Attorney General for the State of New York
Counsel for Defendants
The Capitol
Albany, NY 12224
OF COUNSEL: CATHY Y. SHEEHAN, ESQ. THÉRÈSE WILEY DANCKS, United States Magistrate Judge ORDER AND REPORT-RECOMMENDATION
This pro se prisoner civil rights action, commenced by Plaintiff Troy McRae pursuant to 42 U.S.C. § 1983, has been referred to me for Report and Recommendation by the Honorable Gary L. Sharpe, United States District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c). Plaintiff claims that Defendants have violated his Eighth Amendment right to be free from cruel and unusual punishment by subjecting him to excessive force, failing to intervene in the use of excessive force, and deliberate indifference to his serious medical needs. (Dkt. No. 37.) Currently pending before the Court is a motion to dismiss Plaintiff's Amended Complaint (Dkt. No. 43) for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6), as to Defendants Peters, Gifford, McConnell, and Graham. Plaintiff opposes the motion. (Dkt. No. 47.) For the reasons that follow, I recommend that Defendants' motion be granted in part and denied in part.
Plaintiff's Amended Complaint names eleven Defendants, including the four moving to dismiss here. Defendant Gentile has not moved to dismiss the excessive force claim that Plaintiff alleges in the Amended Complaint. The remaining six Defendants in the Amended Complaint are other Corrections Officers who have not yet been served. (Dkt. No. 37 at ¶ 1.)
I. BACKGROUND
The following facts are derived from the face of the Plaintiff's Amended Complaint (Dkt. No. 37) and are accepted as true for the purposes of deciding the pending motion to dismiss. See Erickson v. Pardus, 551 U.S. 89, 94 (2007).
Plaintiff alleges that on May 2, 2012, Defendant Corrections Officer Gentile ("CO Gentile") pinned his hands against the iron bars of a cell and repeatedly punched him. (Dkt. No. 37 at ¶ 13.) CO Gentile, along with Corrections Officers Peters ("CO Peters") and Gifford ("CO Gifford") and other unidentified Corrections Officers, then brought Plaintiff to a single room. Id. at ¶ 14. There, CO Gentile battered Plaintiff for fifteen minutes while CO Peters and CO Gifford "looked on . . . with delight." Id. at ¶ 15-16. Plaintiff immediately made Defendant Corrections Officer McConnell ("CO McConnell") aware of the injuries he sustained as a result of the incident while CO McConnell was on duty near Plaintiff's cell. Id. at ¶ 20. However, CO McConnell ignored Plaintiff's request for medical attention. Id. Plaintiff made Defendant Superintendent Graham ("Graham") aware of the incident through the prison's administrative grievance procedure, but to no avail. Id. at ¶ 18.
In Plaintiff's memorandum in opposition to the present motion, Plaintiff adds the allegation that Defendant Graham failed to "properly train and supervise his subordinate officers," and that if the Corrections Officers who committed the constitutional violations had been properly trained to handle prisoners, then the alleged assault would not have happened. (Dkt. No. 47-1 at 9.)
II. LEGAL STANDARD GOVERNING MOTIONS TO DISMISS FOR FAILURE TO STATE A CLAIM
A defendant may move to dismiss a complaint on the ground that the complaint fails to state a claim on which relief can be granted. Fed. R. Civ. P. 12(b)(6). In order to state a claim on which relief can be granted, a complaint must contain, inter alia, "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). The requirement that a plaintiff "show" that he or she is entitled to relief means that a complaint "must contain 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)) (emphasis added). "Determining whether a complaint states a plausible claim for relief . . . requires the . . . court to draw on its judicial experience and common sense. . . . [W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not shown - that the pleader is entitled to relief." Id. at 679 (internal citation and punctuation omitted).
"In reviewing a complaint for dismissal under Rule 12(b)(6), the court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor." Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994) (citation omitted). Courts are "obligated to construe a pro se complaint liberally." Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (citation omitted). However, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555).
Where a party is proceeding pro se, the court is obliged to "read [the pro se party's] supporting papers liberally, and . . . interpret them to raise the strongest arguments that they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994); see also Harris, 572 F.3d at 72 (courts remain obligated to construe pro se complaints liberally even after Twombly). Where a pro se complaint fails to state a cause of action, the court generally "should not dismiss without granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated." Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (citation and internal quotation marks omitted). An opportunity to amend is not required where "the problem with [the plaintiff's] causes of action is substantive" such that "better pleading will not cure it." Id. (citation omitted).
III. ANALYSIS
A. CO Peters and CO Gifford
Plaintiff claims that CO Peters and CO Gifford violated his Eighth Amendment right to be free from excessive force by their failure to intervene while he was being beaten by CO Gentile and an unnamed Corrections Officer. (Dkt. No. 37 at ¶ 28.)
"The Eighth Amendment requires prison officials to take reasonable measures to guarantee the safety of inmates in their custody." Hayes v. New York City Dept. of Corrs., 84 F.3d 614, 620 (2d Cir. 1996) (citing Farmer v. Brennan, 511 U.S. 825, 832 (1994)). Law enforcement officials, including prison officials, can be held liable under § 1983 for failing to intervene in a situation where another official is violating an inmate's constitutional rights, including the use of excessive force, in their presence. Curley v. Vill.of Suffern, 268 F.3d 65, 72 (2d Cir. 2001); see also Anderson v. Branen 17 F.3d 552, 557 (2d Cir. 1994) (prison officials' Eighth Amendment duty to take reasonable measures to guarantee the safety of inmates in their custody includes a duty to protect inmates from harm threatened by other officers). A state actor can be held liable for failure to prevent another state actor from committing a constitutional violation if "(1) the officer had a realistic opportunity to intervene and prevent the harm; (2) a reasonable person in the officer's position would know that the victim's constitutional rights were being violated; and (3) the officer does not take reasonable steps to intervene." Jean Laurent v. Wilkinson, 540 F. Supp. 2d 501, 512 (S.D.N.Y. 2008), aff'd, 461 F. App'x 18 (2012).
The reasonable opportunity element is an issue of fact to be decided by the jury, unless there is only one possible reasonable conclusion from the evidence. Anderson, 17 F.3d at 557. Generally, a reasonable opportunity on the part of the corrections officer will not be found if the alleged constitutional violation was sudden or brief. Tafari v. McCarthy, 714 F. Supp. 2d 317, 342 (N.D.N.Y. 2010). Courts in this District have found the reasonable knowledge element present in cases involving beatings by other corrections officers. Cusamano v. Sobek, 604 F. Supp. 2d 416, 428 (N.D.N.Y. 2009).
Defendant contends that Plaintiff has only alleged "conclusory facts as to CO Peters and CO Gifford" (Dkt. No. 43-1 at 3), referring to the allegation in the Amended Complaint that the two "looked on . . . with delight" (Dkt. No. 37 at ¶ 16), while CO Gentile and another Corrections Officer beat him. Id. at ¶ 15. The Court disagrees. If all facts that Plaintiff has alleged in the Amended Complaint are assumed true for the purposes of the present motion, then CO Peters and CO Gifford stood by for fifteen minutes and chose to do nothing while Plaintiff was dragged to a room. Id. at ¶ 15-16 There, Plaintiff was continuously punched, kicked, and choked by two other corrections officers, in violation of his Eighth Amendment right to be free from excessive force. Id. at ¶ 15. Therefore, the Amended Complaint alleges sufficient facts that, taken as true, give rise to the reasonable inference that Defendants CO Peters and CO Gifford failed to intervene under § 1983. Accordingly, I recommend that Defendants' Rule 12(b)(6) motion to dismiss be denied as to Defendants CO Peters and CO Gifford.
B. CO McConnell
Plaintiff alleges that Defendant CO McConnell, by denying him medical care, showed deliberate indifference to his serious medical needs in violation of his Eighth Amendment right to be free from cruel and unusual punishment. (Dkt. No. 37 at ¶ 29.) See Farmer, 511 U.S. at 832 (1994).
A claim that prison officials have intentionally disregarded an inmate's serious medical needs has both objective and subjective elements. See Caiozzo v. Koreman, 581 F.3d 63, 72 (2d Cir. 2009). "The plaintiff must show that she or he had a serious medical condition and that it was met with deliberate indifference." Id. at 72 (citation and internal quotation marks omitted). "The objective 'medical need' element measures the severity of the alleged deprivation, while the subjective 'deliberate indifference' element ensures that the defendant prison official acted with a sufficiently culpable state of mind." Smith v. Carpenter, 316 F.3d 178, 183-84 (2d Cir. 2003) (citations omitted).
A "serious medical condition" is "a condition of urgency, one that may produce death, degeneration, or extreme pain." Nance v. Kelly, 912 F.2d 605, 607 (2d Cir. 1990) (Pratt J. dissenting) (citations omitted), accord Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994); Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998). Relevant factors to consider when determining whether an alleged medical condition is sufficiently serious include, but are not limited to: (1) the existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; (2) the presence of a medical condition that significantly affects an individual's daily activities; and (3) the existence of chronic and substantial pain. Chance, 143 F.3d at 702-03.
Under the subjective element, medical mistreatment rises to the level of deliberate indifference only when it 'involves culpable recklessness, i.e., an act or a failure to act . . . that evinces 'a conscious disregard of a substantial risk of serious harm.'" Id. at 703 (quoting Hathaway, 99 F.3d at 553). "Non-medical personnel engage in deliberate indifference where they intentionally delay access to medical care when the inmate was in extreme pain and had made his personal problem known to the attendant prison personnel." Bauman v. Walsh, 36 F. Supp. 2d 508, 512 (N.D.N.Y. 1999) (citation and internal quotation marks omitted).
Defendant contends that Plaintiff's claim should be dismissed as to CO McConnell. (Dkt. No. 43-1 at 3.) In support of this argument, Defendant points out that the Amended Complaint merely recites the elements of a § 1983 claim of this category, and does not "describe the events with nearly enough specificity" to support the claim. Id. at 4. The Court agrees. The Amended Complaint is devoid of facts plausibly showing that Plaintiff had an objectively serious medical condition as required to satisfy the objective prong of the Eighth Amendment inquiry. (Dkt. No. 37 at ¶ 4.) In fact, the Amended Complaint includes no factual allegations describing injuries allegedly sustained as a result of the beating. (See Dkt. No. 37.) As for the subjective element, Plaintiff's Amended Complaint alleges only that CO McConnell was "made aware of plaintiff's situation, but refused to assist plaintiff, in receiving emergency medical help," and that CO McConnell "ignored [Plaintiff's] request for [emergency medical help.]" Id. at ¶ 20. Plaintiff has not set forth facts plausibly showing that CO McConnell acted with a "conscious disregard of a substantial risk of serious harm." Chance, 143 F.3d at 702-03. Plaintiff has failed to assert factual allegations plausibly showing serious injury and CO McConnell's awareness of the serious injury. Id. Accordingly, I recommend that Defendant's Rule 12(b)(6) motion to dismiss be granted with leave to amend as to Defendant CO McConnell.
C. Superintendent Graham
1. Personal Capacity
Under Second Circuit precedent, "'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) (quoting Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir. 1991)). In order to prevail on a § 1983 cause of action against an individual, a plaintiff must show some "tangible connection" between the unlawful conduct and the defendant. Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986). If the defendant is a supervisory official, a mere linkage to the unlawful conduct through the prison chain of command (i.e., under the doctrine of respondeat superior) is insufficient to show his or her personal involvement in that unlawful conduct. Polk Cnty. v. Dodson, 454 U.S. 312, 325 (1981); Richardson v. Goord, 347 F.3d 431, 435 (2d Cir. 2003) (per curiam); Wright, 21 F.3d at 501; Ayers v. Coughlin, 780 F.2d 205, 210 (2d Cir. 1985) (per curiam). In other words, supervisory officials may not be held liable merely because they held positions of authority. Black v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996) (citations omitted). Rather, supervisory personnel may be considered personally involved if they: (1) directly participated in the violation; (2) failed to remedy that violation after learning of it through a report or appeal; (3) created, or allowed to continue, a policy or custom under which the violation occurred; (4) had been grossly negligent in managing subordinates who caused the violation; or (5) exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that the violation was occurring. Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995) (citations omitted). Here, Plaintiff alleges the second and fifth Colon categories, both of which turn on Defendant Graham's denial of Plaintiff's grievance.
District courts in the Second Circuit are split on whether a prison superintendent's review and denial of a prisoner's grievance supports a finding of personal involvement. See Burton v. Lynch, 664 F. Supp. 2d 349, 360 (S.D.N.Y. 2009). Some courts have held that merely affirming the denial of a grievance does not constitute personal involvement. Id. (citing Warren v. Goord, 476 F. Supp. 2d 407, 413 (S.D.N.Y. 2007)). Those courts require that the supervisor undertake an investigation into the alleged constitutional violation in order for a finding of personal involvement to be proper. Burton, 664 F. Supp. 2d at 360 (citing Warren, 476 F. Supp. 2d at 413). Other courts have found that a "detailed and specific" response to the allegations in a grievance is necessary to warrant a finding of personal involvement. Burton, 664 F. Supp. 2d at 360 (quoting Brooks v. Chappius, 450 F. Supp. 2d 220, 226 (W.D.N.Y. 2006)). Finally, some courts have held that the constitutional violation that is the subject of the grievance must be ongoing, rather than a single isolated incident, such that the supervisor is capable of directly remedying the violation. Burton, 664 F. Supp. 2d at 360 (citing Vega v. Artus, 610 F. Supp. 2d 185, 198 (N.D.N.Y. 2009)).
In this case, the Court does not need to adopt a particular position, because the Amended Complaint does not sufficiently allege any of the above requirements for a finding of personal involvement. The Amended Complaint alleges that Defendant Graham is the warden of Auburn Correctional Facility, that he "is responsible for receiving all grievances" filed at Auburn (Dkt. No. 37 at ¶ 8), and that he failed to discipline the individuals who allegedly participated in the constitutional violations of which Plaintiff complained through the grievance process. Id. at ¶¶ 18, 30. There is no allegation in the Amended Complaint that Defendant Graham undertook an investigation into the alleged violations of Plaintiff's constitutional rights or that Defendant Graham provided a detailed response to any grievance Plaintiff filed.
Plaintiff has similarly failed to allege an ongoing violation of his constitutional rights by prison employees. Plaintiff only refers to one isolated incident as the basis for Defendant Graham's personal involvement in the alleged violation of his constitutional rights. (Dkt. No. 37 at ¶ 30.) Defendant Graham had no ability to directly remedy the alleged violation at the time Plaintiff submitted his grievance. See Burton, 664 F. Supp. 2d at 362 (holding that a grievance alleging one beating with no reference to a continued threat of injury failed to allege an ongoing constitutional violation); Young, 15 F. Supp. 3d at 193 (holding that a grievance alleging one incident of deliberate indifference to serious medical needs failed to allege an ongoing constitutional violation). Accordingly, I recommend that Defendant's motion to dismiss the complaint pursuant to Rule 12(b)(6) should be granted with leave to amend as to Defendant Graham in his personal capacity.
In his memorandum in opposition to the present motion to dismiss, Plaintiff adds the allegation that Defendant Graham's negligent training and supervision of the Defendant Corrections Officers caused the Plaintiff's injuries. (Dkt. No. 47-1 at 9.) Aside from this conclusory allegation about the training and supervision of the Corrections Officer Defendants, Plaintiff provides no facts to support Defendant Graham's personal involvement in the alleged assault. "Vague and conclusory allegations that a supervisor" negligently failed to train or supervise "subordinate employees" are not sufficient to establish personal involvement so as to give rise to personal liability. White v. Fischer, No. 9:09-CV-240 (DNH/DEP), 2010 WL 624081, at *6, 2010 U.S. Dist. LEXIS 15492, at *19 (N.D.N.Y. Feb. 18, 2010); see also Pettus v. Morgenthau, 554 F.3d 293, 300 (2d Cir. 2009) (vague and conclusory allegations that a supervisor failed to properly monitor the actions of subordinate employees do not suffice to establish the requisite personal involvement and support a finding of liability).
The Court will provide a copy of the unpublished decision to Plaintiff pursuant to LeBron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
Due to the absence of factual allegations by Plaintiff to make a facially plausible showing of personal involvement by Defendant Graham related to the alleged assault, I recommend that the motion to dismiss the Amended Complaint be granted as to this claim as well. However, in deference to Plaintiff's pro se status and to the fact that he has not had the opportunity to make this allegation in a formal complaint, I also recommend that the dismissal be without prejudice, and that Plaintiff be granted leave to amend.
2. Official Capacity
The Eleventh Amendment bars suits for damages against state officials acting in their official capacities. See Severino v. Negron, 996 F.2d 1439, 1441 (2d Cir.1993) ("[I]t is clear that the Eleventh Amendment does not permit suit . . . for money damages against state officials in their official capacities."). Moreover, the Eleventh Amendment bars official capacity suits for declaratory relief where the declaratory relief requested would serve only to declare a past action a violation of the law. Green v. Mansour, 474 U.S. 64, 74, 106 S. Ct. 423, 88 L. Ed. 2d 371 (1985). All DOCCS employees are state officials for the purposes of the Eleventh Amendment. See, e.g., Davis v. New York, 316 F.3d 93, 101 (2d Cir. 2002).
Graham is a DOCCS employee, and Plaintiff has requested both declaratory judgment and monetary damages against him. (Dkt. No. 37 at pp. 7-8.) Specifically, Plaintiff asks the Court to issue a declaratory judgment stating that Graham violated Plaintiff's constitutional rights through his failure to prevent prison employees from physically abusing the prisoners. Id. at p. 7. Because Graham is a DOCCS employee, and because of the retroactive nature of the relief Plaintiff requests, I recommend Defendants' motion to dismiss under Rule 12(b)(6) for failure to state a claim be granted with prejudice as to Plaintiff's claim for money damages and declaratory relief under § 1983 against Graham in his official capacity. While leave to amend should ordinarily be freely given, in these circumstances "better pleading will not cure" Plaintiff's substantive problem with the cause of action against Graham in his official capacity. Cuoco, 222 F.3d at 112 (citation omitted).
ACCORDINGLY, it is
RECOMMENDED that Defendants' motion to dismiss (Dkt. No. 43) for failure to state a claim be GRANTED with leave to amend as to Defendant CO McConnell and Defendant Superintendent Graham in his personal capacity; and it is further
RECOMMENDED that Defendants' motion to dismiss (Dkt. No. 43) for failure to state a claim be GRANTED without leave to amend as to Defendant Superintendent Graham in his official capacity; and it is further
RECOMMENDED that Defendants' motion to dismiss (Dkt. No. 43) for failure to state a claim be DENIED as to Defendant CO Peters and Defendant CO Gifford; and it is further
ORDERED that the Clerk provide Plaintiff with a copy of the unpublished decision in White v. Fischer, No. 9:09-CV-240 (DNH/DEP), 2010 WL 624081 (N.D.N.Y. Feb. 18, 2010).
Pursuant to 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: October 20, 2015
Syracuse, New York
/s/_________
Thérèse Wiley Dancks
United States Magistrate Judge