Opinion
No. 03 Civ. 6691 (RJH).
November 29, 2004
MEMORANDUM OPINION AND ORDER
Plaintiff Steven Sales brought claims pursuant to 42 U.S. § 1983 in his first amended complaint against numerous defendants currently or formerly employed by the New York State Department of Corrections (the "DOCS"), alleging violations of his Eighth and Fourteenth Amendment rights while incarcerated at Green Haven Correctional Facility ("Green Haven"). Defendants collectively move to dismiss Sales' complaint in its entirety pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons set forth below, defendants' motion is granted in part and denied in part.
Sales is currently an inmate at Southport Correctional Facility after being transferred from Green Haven Correctional Facility ("Green Haven") on February 21, 2003. (Pl.'s Amended Compl. at 5.) All of Sales' claims arise from events allegedly occurring at Green Haven.
FACTS
The following allegations, set forth by the complaint, are liberally construed in the light most favorable to the plaintiff and accepted as true for the purposes of this 12(b)(6) motion. A. The J Block Incident
At approximately 11:45 a.m. on January 14, 2003, Sales was standing in the doorway of his cell located in the J Block of Green Haven after the prison count and before the chow call for lunch. (Pl.'s Amended Compl. at 5.) Corrections Officer ("CO") Steven Stubbs then locked Sales into his cell for the institutional count. ( Id. at 6.) After the count had been taken, Stubbs unlocked Sales' cell although Sales remained inside his cell waiting for the chow call. ( Id.) CO Barry Barizone allegedly approached Sales, placed his face within "inches" from Sales' face, and proceeded to hurl obscenities at him. ( Id.) Barizone continued to curse at Sales while standing in the doorway of Sales' cell and simultaneously communicated on his walkie-talkie. ( Id.) CO James Pasquariello, who was already at Sales' location in J Block, was observing Sales and proceeded to discuss the situation with Barizone. ( Id.) According to Sales, Barizone and Pasquariello continued to stand outside Sales' cell as suddenly, COs James Booth, Steven Stubbs, and Harriet Richardson joined them in standing in front of Sales' cell. (Statement of Claim at 1.) Apparently, the corrections officers had been waiting for CO Kevin O'Connor because as soon as he appeared, all of the defendants "rushed" towards Sales and knocked him unconscious. ( Id.) Sales claims that "[t]he last event [he] observed was all [of the] officers rushing into [his] cell." ( Id.)
Sales completed a form provided by the Pro Se Office for the Southern District of New York setting forth his Section 1983 claims. Sales also submitted a handwritten, 14-page narrative detailing the alleged incidents that form the basis of his claims, which he attached to the end of this form. He entitled each page of the added narrative as "Claim Side [page number]". For the purposes of this motion, the Court will simply refer to each page as "Statement of Claim [page number]".
In a misbehavior report filed by Sergeant William Plimley, Plimley alleged that CO James Pasquariello repeatedly ordered Sales to lock in several times, but Sales refused and hurled an expletive at Pasquariello and CO Barry Barizone. (Nowve Decl., Ex. A at 1). Sales then allegedly punched Pasquariello in the face, wrapped his hands around his throat in an attempt to choke him, and pulled him into his cell. ( Id.) Sales nevertheless maintains his innocence regarding these accusations, alleging that the assault on Pasquariello never happened. (Statement of Claim at 9.) Construing all inferences in favor of the plaintiff, the Court accepts Sales' version of the facts as true for the purpose of this motion.
After regaining consciousness, Sales realized that he had been handcuffed and legcuffed in the interim. ( Id.) While restrained, Sales was allegedly dragged and lifted into the air by COs Timothy Todriff and Gordon Wildrick. ( Id.) As he was being carried to the Green Haven Facility Clinic ("Facility Clinic"), Sales claims he experienced "punches" and "grabs." ( Id.) Sales further contends that he pleaded with Todriff and Wildrick to desist these assaults, telling them "I[`m] not resisting and I'm in handcuffs and legcuffs." ( Id.) Sergeants William Plimley and Vincent Guarracino accompanied Sales as he was taken to the Facility Clinic. ( Id. at 1-2.)
Once Sales arrived at the Facility Clinic, he was "once again lifted, drag[ged] and . . . prop[p]ed up on a stool or chair" in a room. ( Id. at 2.) Sales was still struggling to gain consciousness. ( Id.) As several officers — including Todriff, Wildrick, Guarracino, and Plimley — observed, a female officer took a picture of Sales as Resident Nurse ("RN") Francis Akinyombo questioned Sales regarding the extent of his injuries and bandaged his forehead. ( Id.) Sales could not move or talk and as such, he was lifted up by both Todriff and Akinyombo. ( Id.) At Akinyombo's request, Sales twice rinsed out his mouth and spit blood. ( Id.) Shortly thereafter, Sales again fell unconscious. ( Id.)
Sales was subsequently dragged and carried out by Todriff and Wildrick into the Special Housing Unit ("SHU") elevators. ( Id.) As Plimley observed, Sales allegedly experienced blows until he was taken out of the elevator and into the SHU area where he was strip-searched by a SHU officer. ( Id.) Sales then entered his cell at the SHU. ( Id.) B. Sales' Medical Needs During His SHU Confinement
Defendants maintain that Sales was confined in the SHU pending seven disciplinary charges arising out of the J Block incident. (Defs.' Mem. in Supp. of Mot. to Dismiss at 5.) According to defendants, Sales also faced three disciplinary charges in connection with threats he allegedly made to Barizone at 4:19 p.m. on January 14, 2003 while confined in the SHU. ( Id.)
Sales alleges that he suffered multiple injuries resulting from the J Block incident such as a swollen forehead, open slash cut on the forehead, swollen upper lip with cuts, slurred speech, internal injuries, collapsed lungs, chest pains, rib pains, shoulder aches, back pain, headaches and migraines, loose front teeth, problems with his vision, sneezing and coughing, dizziness, lack of coordination, loss of appetite, insomnia and nightmares due to these pains. ( Id. at 2.) On January 14, 2003 — the night on which he entered SHU — Sales complained "as best as could" about his injuries. ( Id.) The following morning, Sales contends that he complained about his injuries and requested emergency medical attention from RN Donna Christie as she was performing sick rounds. ( Id.) When these requests were allegedly ignored, Sales continued to complain "[night] and day, morning during sick call rounds made by [Christie] . . . and [RN Stan Dashawetz]" from January 15, 2003 until January 27, 2003. ( Id. at 3.) Despite Sales' repeated requests to see a doctor, both Christie and Dashawetz allegedly dismissed his complaints, insisted that there "was nothing wrong with [him]," and simply gave him Tylenol tablets. ( Id. at 2-3.)
Sales further maintains that when Dashawetz and Christie came to talk to him through his cell bars, he experienced substantial difficulty exerting himself physically. ( Id. at 4.) While standing outside the cell bars, Dashawetz asked Sales to lift up his shirt as if to examine him although Sales remained inside the cell. ( Id.) Nevertheless, Sales asserts that Dashawetz and Christie repeatedly denied him the opportunity to seek medical attention from a doctor. ( Id.)
On January 28, 2003, Sales was finally taken to the Facility Clinic to receive x-rays of his ribs. ( Id.) Although Sales asked to see a doctor, this request was again denied. ( Id.) Instead, Sales received prescription Ibuprofen tablets of 600 milligrams. ( Id.) Following these x-rays, however, Dashawetz informed Sales that he had a hairline fracture on his ribs. ( Id.) According to Sales, Christie as well as other RNs making sick rounds also told Sales that his lungs were "punctured" and full of "air holes." ( Id.) Sometime after his first x-ray, Sales was called back in again to the x-ray room at the Facility Clinic. ( Id.)
Between January 28, 2003 and before February 20, 2003, Sales was brought to Dashawetz's office, where Dashawetz allegedly performed an impromptu medical examination as a corrections officer stood by. ( Id. at 4-5.) Dashawetz asked Sales to lift his shirt as he used a stethoscope to check his heart rate and his temperature. ( Id. at 5.) Dashawetz then informed Sales that his lungs were healing and would continue to heal on their own. ( Id.) According to Sales, this examination lasted seven minutes in its entirety. ( Id.)
Christie again took Sales' temperature and blood pressure on February 2, 2003 around 8:40 p.m. ( Id.)
C. Johnston Hearing
On January 23, 2003, Sales appeared before Sidney Johnston, who was appointed to "sit in" for Superintendent William E. Phillips, at a Tier III hearing on seven disciplinary charges related to the J Block incident. ( Id. at 8; Nowve Decl., Ex. B at 1.) Sales wished to present his own medical records, as well as the records of Pasquariello, since Pasquariello claimed to have sustained a broken nose but allegedly appeared at the hearing without any visible injuries. (Statement of Claim at 8.) Johnston, however, denied this request. ( Id.)
Prisoners in New York correctional facilities are subject to three types of disciplinary review for violating prison rules. McEachin v. McGuinnis, 357 F.3d 197, 199 n. 1 (2d Cir. 2004) (citing N.Y.C.R.R. §§ 270.2, 270.3). Tier III hearings "involve the most serious violations and may result in SHU confinement for the remaining time an inmate has to serve, and forfeiture of `good time' credits." Id. (citing 7 N.Y.C.R.R. § 254.7).
In support of the motion to dismiss, defendants attached a copy of Johnston's disciplinary decision as Exhibit B to the Declaration of Donald Nowve.
Despite Sales' assertion that he "presented overwhelming evidence of innocence," Johnston found him guilty of assaults on staff members, violent conduct, creating a disturbance, harassment, and refusing a direct order at the conclusion of the Johnston hearing on February 3, 2003. (Nowve Decl., Ex. B at 1.) Sales, however, was acquitted of two charges regarding an alleged movement regulation violation and delaying of the count. ( Id.) In sum, Johnston imposed a disciplinary sentence of 24 months' SHU confinement, six months' loss of good-time credits, and other minor penalties. ( Id. at 2.)
Sales contends that Johnston "acted with other prison officials to cause [him] harm in some form or fashion against [his] constitutional rights." (Statement of Claim at 8-9.) According to Sales, Johnston simply accepted the testimony of Pasquariello and O'Connor as "true" and punished Sales "rather than going against his fellow employees." ( Id. at 9.) Sales maintains that all of the reports submitted by Pasquariello, O'Connor, Barizone, Booth, Dashawetz, Akinyombo, Christie, and Plimley contained false statements and inconsistencies. ( Id. at 10; Pl.'s Mem. at 7.) Even though Sales asked for a written copy of these statements, this request was denied. (Pl.'s Mem. at 7.) Sales also maintains that Stubbs, Richardson, and Guarracino failed to submit written reports despite their alleged involvement in the J Block incident. ( Id. at 10-11.)
Sales mistakenly labeled his opposing brief as "Memorandum of Law in Opposition to Defendants' Motion For Summary Judgment." The Court will therefore refer to his opposing brief as "Pl.'s Mem."
D. Haubert Hearing
On January 24, 2003, defendant Michael Haubert initiated a Tier III hearing against Sales on four disciplinary charges arising out of an alleged altercation between Sales and Barizone at the time Sales entered the SHU on January 14, 2003. ( Id. at 7; Nowve Decl., Ex. C at 1.) Haubert found Sales guilty of the disciplinary charges of threats and harassment, but not guilty of violent conduct. (Nowve Decl., Ex. C at 2.) Haubert imposed a disciplinary sentence of two months' SHU confinement and other minor penalties. ( Id.)
Barizone filed a misbehavior report against Sales arising out of this incident. (Nowve Decl., Ex. A at 2.)
In support of their motion to dismiss, defendants attached a copy of the Haubert decision as Exhibit C to the Declaration of Donald Nowve.
However, Sales alleges that this decision suffered from defects such as the improper reliance on false charges filed by Barizone. (Statement of Claim at 7.) Specifically, Sales alleges that Haubert had "knowledge of the behavior of his fellow officer (B. Barizone)" and "[went] along with [Barizone's] . . . false statements" of violent conduct, harassment, and threatening behavior against Sales arising out of the J Block Incident. ( Id.) Over Sales' "recorded wishes," Barizone appeared at the hearing. ( Id.)
Sales further alleges that Haubert paused the hearing to review the video and sound system tapes retrieved from the 24-hour surveillance system. ( Id. at 9.) However, neither Barizone nor Sales appeared on any of the tapes — an omission which, Sales claims, demonstrates his innocence. ( Id.) E. Sales' Claims
In an unpublished Order dated September 4, 2003, Chief Judge Michael Mukasey granted Sales in forma pauperis status and dismissed some claims contained in Sales' original complaint. Specifically, Judge Mukasey dismissed (1) claims against Green Haven Correctional Medical Department arising out of the J Block incident; (2) claims for deprivation of property based on the availability of state remedies; and (3) claims for inadequate medical care during his incarceration at the Upstate Correctional Facility. Judge Mukasey granted Sales leave to amend his complaint and advised Sales to state, with more specificity, any claims of supervisory liability and any attempts made to exhaust available administrative remedies.
Sales submitted to this Court a decision rendered by the Central Office Review Committee ("CORC") that denied his medical and assault claims arising out of events allegedly occurring at Green Haven. Defendants concede that "plaintiff grieved the Green Haven medical and assault claims and exhausted DOCS remedies by appealing his grievance through the [CORC], which is the final step in the IGP." (Defs.' Mem. in Supp. of Mot. to Dismiss at 2 n. 1.)
Sales presently asserts Fourteenth Amendment due process claims against Johnston and Haubert arising out of the disciplinary sentences. First, Sales alleges that Johnston denied Sales his right to present medical records and improperly imposed disciplinary sanctions on Sales based on falsified and unreliable misbehavior reports. Second, Sales alleges that Haubert also deprived Sales of his due process rights by imposing disciplinary sanctions even though he knew that Barizone's charges were false. Sales also brings claims of supervisory liability against DOCS Director of Special Housing/Inmate Disciplinary Program Donald Selsky and DOCS Commissioner Glenn S. Goord, contending that they allegedly knew about the due process violations occurring at the Johnston and Haubert hearings but failed to remedy his constitutional injuries.
Sales further asserts excessive force claims pursuant to the Eighth Amendment arising out of the J Block incident against Barizone, Pasquariello, Booth, Stubbs, Richardson, Todriff, Wildrick, Guarracino and Plimley, alleging that these defendants impermissibly assaulted him while he was restrained by handcuffs and legcuffs. Sales also brings claims of supervisory liability against Green Haven Superintendent of Security, David Thacker, and Green Haven Superintendent William E. Phillips, alleging that their failure to train corrections officers regarding the proper use of force amounted to deliberate indifference.
Finally, Sales asserts deliberate indifference claims pursuant to the Eighth Amendment against Akinyombo, Christie and Dashawetz, alleging that they repeatedly denied his medical needs. Sales asserts a claim of supervisory liability against Wright based on his alleged negligent supervision of Christie and Dashawetz.
DISCUSSION
I. The Rule 12(b)(6) Standard
In ruling on a motion to dismiss under Rule 12(b)(6), the court is required to read a complaint generously, accepting all the alleged facts as true and drawing all reasonable inferences in favor of the plaintiff. See LaBounty v. Adler, 933 F.2d 121, 123 (2d Cir. 1991); Frasier v. Gen. Elec. Co., 930 F.2d 1004, 1007 (2d Cir. 1991). The court must deny the motion unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. See Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Additionally, "the review of such a motion is limited, and `[t]he issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.'" Bernheim v. Litt, 79 F.3d 318, 321 (2d Cir. 1996) (citations omitted).
Moreover, the fact that Sales is proceeding pro se in pursuit of civil rights claims means that the court must construe his complaint with particular generosity. See Davis v. Goord, 320 F.3d 346, 350 (2d Cir. 2003) (quotations omitted); Weixel v. Board of Educ. of City of New York, 287 F.3d 138, 146 (2d Cir. 2002). As such, Sales' allegations "must be read so as to `raise the strongest arguments that they suggest.'" Weixel, 287 F.3d at 146 (quoting McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999)). The court may also consider factual "allegations contained in [the plaintiff's] other court filings." Torrico v. International Business Machines Corp., 213 F. Supp. 2d 390, 400 n. 4 (S.D.N.Y. 2002) (quoting Swofford v. Mandrell, 969 F.2d 547, 549 (7th Cir. 1992)).
II. Sales' Due Process Claims Against Johnston and Haubert A. Sales' Alleged Liberty Interest
Sales' complaint identifies two Fourteenth Amendment due process claims arising out of the Johnston and Haubert hearings. First, Sales alleges that Johnston violated his due process rights by imposing 24 months' confinement in the SHU as punishment without due process where, inter alia, Johnston (1) improperly denied Sales his right to present medical records; and (2) based his decision on misbehavior reports that he knew were false, unreliable, and inconsistent. Second, Sales alleges that Haubert effected a further deprivation of his due process rights by imposing two months' confinement in the SHU and other minor penalties also based solely on false misbehavior reports. In effect, Sales contends that Johnston and Haubert had "knowledge about the wrong but did nothing to fix it when there [was] a duty to do so." (Statement of Claim at 11.)
To the extent that Sales maintains claims against Pasquariello, O'Connor, Barizone, Booth, Dashawetz, Akinyombo, Christie and Plimley for allegedly filing false misbehavior reports, these claims do not articulate a protected liberty interest. Peterson v. Tomaselli, No. 02 Civ. 6325, 2004 WL 2211651, at *13 n. 8 (S.D.N.Y. Sept. 30, 2004) (the "filing of false records or accusations does not implicate a protected liberty interest").
As a threshold matter, a plaintiff asserting a due process claim "must establish (1) that he possessed a liberty interest and (2) that the defendant(s) deprived him of that interest as a result of insufficient process." Ortiz v. McBride, 380 F.3d 649, 654 (2d Cir. 2004) (quoting Giano v. Selsky, 238 F.3d 223, 225 (2d Cir. 2001)). A prisoner's liberty is "implicated by prison discipline, such as SHU confinement, only if the discipline `imposes [an] atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.'" Palmer v. Richards, 364 F.3d 60, 64 (2d Cir. 2004) (quoting Sandin v. Conner, 515 U.S. 472, 484 (1995)). In determining whether discipline rises to the level of an "atypical and significant hardship," the Second Circuit instructs district courts to "look to actual punishment," Palmer, 364 F.3d at 64 (quoting Scott v. Albury, 156 F.3d 283, 287 (2d Cir. 1998)), and to engage in detailed, fact-intensive inquiries into the scope of the prisoner's alleged deprivation. Sims v. Artuz, 230 F.3d 14, 23 (2d Cir. 2000) (citations omitted).
Specifically, a district court should consider factors such as (1) "`the extent to which the conditions of the disciplinary segregation differ from other routine prison conditions'"; and (2) "`the duration of the disciplinary segregation imposed compared to discretionary confinement.'" Id. at 23 (quoting Wright v. Coughlin, 132 F.3d 133, 136 (2d Cir. 1998)). Although the Second Circuit has not established a "bright-line rule" governing which lengths of SHU confinement will constitute a due process violation under Sandin, segregated confinement sanctions of 125-288 days are considered "relatively long." Id. at 23.
Notwithstanding the significance of duration, "the conditions of confinement are a distinct and equally important consideration" in determining whether the prisoner has suffered a due process violation. Palmer, 364 F.3d at 64-65 ("duration is not the only relevant factor"). In the context of SHU confinement, the Second Circuit has observed that:
Confinement in special housing is a more significant deprivation of an inmate's liberty than restriction to his usual quarters. The prisoner is confined to a maximum security area of the correctional center and is separated from most of his personal belongings and other items . . . [A]n inmate's quarters in the Special Housing Unit are more sparsely furnished than those ordinarily occupied.McCann v. Coughlin, 698 F.2d 112, 121 (2d Cir. 1983). Ordinarily, SHU prisoners are "kept in solitary confinement for twenty-three hours a day, provided one hour of exercise in the prison yard per day, and permitted two showers per week." Ortiz, 380 F.3d at 655. Under these conditions, a prisoner's confinement in the SHU for 101 days "does not meet the Sandin standard of atypicality." Id. at 654 (citing Sealey v. Giltner, 197 F.3d 578, 589 (2d Cir. 1999)). However, a prisoner who alleges " abnormal or unusual SHU conditions" that exist for less than 101 days may implicate a liberty interest. Id. at 654 (emphasis added). These conditions will satisfy the Sandin standard only if the "disciplinary and administrative sanctions are onerous." Jenkins v. Haubert, 179 F.3d 19, 28 (2d Cir. 1999) (citing Sandin, 515 U.S. at 486).
Sales first challenges the disciplinary sanction of 24 months' confinement in the SHU imposed at the Johnston hearing as an atypical and significant hardship. (Statement of Claim at 8.) The Second Circuit has held that "`[c]onfinement in normal SHU conditions for 305 days is in our judgment a sufficient departure from the ordinary incidents of prison life to require procedural due process protections under Sandin.'" Giano, 238 F.3d at 226 (quoting Colon v. Howard, 215 F.3d 227, 231 (2d Cir. 2000) (citing Sims, 230 F.3d at 23 (finding "atypical and significant" hardship in SHU sanction of one year))). Certainly, Sales' confinement in the SHU for 730 days fits within the ambit of Sandin as an "atypical and significant" hardship.
Defendants do not contend that the segregated confinement sanction imposed by the Johnston hearing fails to satisfy the Sandin standard. (Defs.' Mem. in Supp. of Mot. to Dismiss at 9-12.) However, in their reply brief, defendants note briefly in a footnote that Johnston suspended 12 months of the sentence of SHU confinement. (Defs.' Reply Mem. in Further Supp. of Mot. to Dismiss at 3 n. 1 (citing Nowve Decl., Ex. B at 1).) Regardless of whether Sales actually served 12 or 24 months' time in SHU confinement, the allegation that he spent at least 356 days in the SHU sufficiently implicates a liberty interest under Sandin as discussed in this Opinion.
Sales' other due process claim arising out of two months' confinement in the SHU, however, cannot survive the Sandin test absent further allegations. Sealey, 197 F.3d at 589 (confinement in SHU for 101 days did not establish "atypical and significant" hardship); Ortiz, 380 F.3d at 654 (confinement in SHU for 90 days was insufficient to implicate protection under Sandin). However, the Second Circuit has repeatedly articulated its preference against dismissing pro se complaints at an early stage of the proceedings since the limited legal knowledge and resources available to such plaintiffs "may hamper their ability to articulate potentially valid claims in legally cognizable language." McEachin, 357 F.3d at 201. At the very least, district courts should afford pro se plaintiffs permission to amend their complaints at least once where a liberal reading of the complaint suggests the existence of a colorable claim. Davis, 320 F.3d at 351. Accordingly, the Court dismisses Sales' due process claim arising out of the Haubert hearing but grants him leave to amend this claim to the extent that there are facts indicating he was subjected to SHU conditions that were "abnormal or unusual." Ortiz, 380 F.3d at 654.
B. Heck and Mixed Sanctions
Although Sales' due process claim against Johnston survives the Sandin threshold, defendants contend that the claim implicates the "favorable termination" rule set forth in Heck v. Humphrey, 512 U.S. 477 (1994), and therefore is not cognizable under Section 1983. (Defs.' Mem. in Supp. of Mot. to Dismiss at 9.) The favorable termination rule provides that:
[T]o recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such a determination, or called into question by a federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254.Heck, 512 U.S. at 486-87. In Heck, a prisoner serving a 15-year sentence for a manslaughter conviction filed a Section 1983 lawsuit for damages against two state prosecutors and a state police investigator alleging that they had engaged in an "unlawful, unreasonable and arbitrary investigation," knowingly destroyed exculpatory evidence, and caused an illegal voice identification procedure to be used at his trial. Id. at 479. Remarking that Heck's claims lay at the "intersection of the two most fertile sources of federal-court prisoner litigation — the Civil Rights Act of 1871, Rev. Stat. § 1979, as amended, 42 U.S.C. § 1983, and the federal habeas corpus statute," id. at 480, the Supreme Court limited the scope of cognizable Section 1983 claims to those claims that would not "necessarily imply the invalidity of his conviction or sentence" unless the prisoner could show that conviction or sentence had already been invalidated. Id. at 487.
The Supreme Court has attempted to clarify the parameters of Heck's favorable termination rule, particularly since courts have widely embraced prison disciplinary sanctions as within the meaning of "conviction or sentence." Edwards v. Balisok, 520 U.S. 641 (1997) (prisoner sentenced to ten days in segregated confinement, deprivation of good-time credits and other penalties had invoked the Heck rule); Black v. Coughlin, 76 F.3d 72, 75 (2d Cir. 1996) ("[w]e see no reason why Heck is not also controlling with respect to due process challenges to prison disciplinary proceedings"); Carr v. O'Leary, 167 F.3d 1124, 1127 (7th Cir. 1999) (conviction and prison disciplinary sanction are the same for purposes of Heck). Prison disciplinary sanctions, however, present thorny issues in the context of Heck because while the deprivation of good-time credits implicates Heck, see Edwards, 520 U.S. at 646-68, the imposition of segregated confinement does not, see Jenkins, 179 F.3d at 27. Indeed, the Supreme Court recently rejected the contention that "Heck applies categorically to all suits challenging prison disciplinary proceedings." Muhammad v. Close, 540 U.S. 749, ___, 124 S.Ct. 1303, 1306 (2004) (emphasis added) (sustaining prisoner's Section 1983 claim even though he sought expungement of misconduct violation because no good-time credits had been eliminated in the earlier misconduct proceedings).
Following Heck, prisoners' rights cases appear to fall neatly around two points of analysis: (1) permissible challenges to decisions implicating the "conditions of confinement" such as segregated confinement; and (2) impermissible challenges to decisions implicating the "fact or duration of custody" such as the loss of good-time credits. See Jenkins, 179 F.3d at 27-28 (allowing Section 1983 claim challenging 30-days' confinement in keeplock); Hyman v. Holder, No. 96 Civ. 7748, 2001 WL 262665, at *3 (S.D.N.Y. March 15, 2001) (procedural due process challenge to sanction imposing the loss of good-time credits barred by Heck). The disciplinary sentence challenged here, however, imposed both the loss of good-time credits and segregated confinement although Sales elected to seek monetary relief only for the segregated confinement portion of that punishment. As such, the issue is whether a prisoner sentenced to both the loss of good-time credits and segregated confinement can mount a challenge solely aimed at the segregated confinement.
Defendants argue that Edwards definitively resolves that issue in the negative because in Edwards, the prisoner unsuccessfully challenged a decision involving a "mixed sanction" even though he did not challenge the loss of good-time credits. (Defs.' Mem. in Supp. of Mot. to Dismiss at 11.) However, the Second Circuit has specifically stated that Edwards does not "address whether the prisoner could proceed separately with his § 1983 claim as to those portions of his sentence which affected only the conditions of his confinement." Jenkins, 179 F.3d at 25. Yet in the Jenkins decision, the Second Circuit had no occasion to respond to that question left unanswered by the Supreme Court because the prisoner had only received a disciplinary sentence of segregated confinement. Jenkins, 179 F.3d at 21.
Indeed, the Supreme Court "focused exclusively on the revocation of his good-time credits," Jenkins, 179 F.3d at 25, perhaps because Edwards' segregated confinement for 30 days would not have implicated a protected liberty interest under Sandin.
In facing this very question, District Court Judge Charles Haight thoroughly surveyed the landscape of Supreme Court, Second Circuit, and Southern District of New York cases even cursorily suggesting the possibility of asserting prisoner challenges to "mixed sanctions." Gomez v. Kaplan, No. 94 Civ. 3292, 2000 WL 1458804, at *6-9 (S.D.N.Y. Sept. 29, 2000). Although Judge Haight resolved that case on other grounds, the Court finds his analysis persuasive to the extent that "a plaintiff in [Sales'] position cannot successfully invalidate his segregated confinement without invalidating the loss of good-time credits where both punishments were administered for the same conduct and as part of the same sentence." Gomez, 2000 WL 1458804, at *11. A charge that the disciplinary proceedings were tainted by bias, procedural or evidentiary defects "necessarily implies the invalidity" of the entire disciplinary decision, regardless of whether Sales actually challenges the loss of good-time credits. See Gomez, 2000 WL 1458804, at *11 ("[c]onceptually, [p]laintiff cannot attack the one without in effect attacking the other"); Peralta v. Vasquez, No. 01 Civ. 3171, 2004 WL 906278, at *1 (S.D.N.Y. April 1, 2004) (remarking that allowing plaintiff to split his Section 1983 claims would be "ill-advised"). Indeed, if the loss of good-time credits and another sanction stems from the same proceeding, a "finding of a significant procedural defect, such as a denial of due process during the hearing, would indicate not only that the non good-time credit sanction was the result of a tainted proceeding, but that the deprivation of good-time credit was similarly invalid." Peralta, 2004 WL 906278, at *1. In Sales' situation, it would be impossible to discern which disciplinary sanctions resulted from alleged bias or other defects because the decision to impose both good-time credits and segregated confinement involved the same decisionmaker, factual predicate, evidentiary basis and actors. Were Sales to succeed, for instance, on his due process claim that Johnston was biased against him and employed improper evidentiary procedures, that determination would necessarily impugn the validity of the underlying decision to discipline regardless of what sanctions were subsequently issued.
Judge Haight laboriously reviewed the Supreme Court line of cases involving Heck and prison disciplinary measures, particularly focusing on Justice Brennan's dissent in Preiser v. Rodriguez, 411 U.S. 475, 500-523 (1973). Gomez, 2000 WL 1458804, at *10-11. In Preiser, Justice Brennan remarked that "serious difficulties will arise whenever a prisoner seeks to attack in a single proceeding both the conditions of his confinement and the deprivation of good-time credits." Preiser, 411 U.S. at 508. Justice Brennan further observed that the "unanswered question is whether [a prisoner] loses the right to proceed under § 1983 if, as punishment for his alleged misconduct, his jailers have not only subjected him to unlawful segregation and thereby inflicted an injury that is compensable in damages, but have compounded the wrong by improperly depriving him of good-time credits." Id. at 508.
Judge Haight noted that the Second Circuit, in two separate unpublished opinions, dismissed prisoner claims arising out of disciplinary decisions imposing both segregated confinement and the loss of good-time credits. Gomez, 2000 WL 1458804, at *8 (discussing Jimenez v. Goord, 205 F.3d 1323 (2d Cir. 1999) and Johnson v. Gummerson, 201 F.3d 431 (2d Cir. 1999)). Because these were unpublished opinions, Judge Haight concluded that " Jimenez and Johnson do little to resolve the present dispute." Id., 2000 WL 1458804 at *9.
Judge Haight also noted two Southern District of New York cases suggesting in brief dicta that Edwards barred Section 1983 claims challenging disciplinary hearings resulting in both the loss of good-time credits and SHU confinement. See Jackson v. Johnson, 15 F. Supp. 2d 341, 360 n. 6 (S.D.N.Y. 1998); Hyman, 2001 WL 262665, at *2-3.
Even construing Sales' claim as an attack solely on the procedures employed at the Johnston hearing, the Supreme Court has clarified that a claim for damages "for using the wrong procedure, not for reaching the wrong result" may nevertheless be barred under Heck. Edwards, 520 U.S. at 646.
In effect, Sales would be afforded "backdoor entry" into an improper collateral attack on his disciplinary sentence whereas previously, case law staunchly denied him that claim. That is not to say that Sales has no avenue for relief — indeed, the struggle over defining areas of federal habeas relief and Section 1983 damages fixates precisely on channeling prisoner disputes into the proper channels. In drawing those boundaries, courts in this District appear to agree that where a plaintiff challenges a sentence that imposes both the loss of good-time credits and segregated confinement, he must rely on state proceedings or ultimately, habeas proceedings to attain relief. Gomez, 2000 WL 1458804, at *11; Peralta, 2004 WL 906278, at *1. As such, Sales must first invalidate his prison disciplinary sentence through an Article 78 proceeding before challenging either his segregated confinement or loss of good-time credits. Accordingly, the Court dismisses without prejudice Sales' due process claim arising out of the Johnston disciplinary hearing and Sales' subsequent SHU confinement. Amaker v. Weiner, 179 F.3d 48, 52 (2d Cir. 1999) ("[d]isposition of the case on Heck grounds, however, warrants only dismissal without prejudice, because the suit may be reinstituted should plaintiff's conviction" be invalidated).
As defendants point out, Sales suggests in an annexed affidavit to his opposition memorandum that he filed a petition pursuant to Article 78 of the New York Civil Practice Law and Rules. (Defs.' Reply Mem. in Supp. of Mot. to Dismiss at 3; Pl.'s Aff. at 7.) However, Sales has not shown that he successfully invalidated either of his sentences. Indeed, defendants have attached documents from the Court Clerk in the Supreme Court of New York explaining that she returned Sales' filing fee and papers as inadequate. (Donnelly Decl., Ex. A.)
To the extent that Sales asserts due process claims based on supervisory liability against Goord and Selsky, these claims must also be dismissed as "necessarily impl[ying]" the invalidity of the Johnston disciplinary sentence. Specifically, Sales has asserted that Goord and Selsky improperly sided with their fellow employees when Sales related to them his side of events. (Statement of Claim at 11-12.) In other words, the thrust of Sales' claim is that Goord and Selsky failed to exercise their supervisory authority to prevent the alleged bias and procedural defects tainting the Johnston disciplinary sentence that caused his due process violations. Under the principles set forth in Heck, this claim would "necessarily imply the invalidity" of the Johnston disciplinary sentence because to prevail, Sales must first show that the Johnston disciplinary sentence caused him constitutional injuries that Goord and Selsky allegedly failed to prevent. Heck, 512 U.S. at 487. Indeed, a supervisor cannot be held liable under Section 1983 if the plaintiff cannot demonstrate an underlying constitutional violation. Blyden v. Mancusi, 186 F.3d 252, 265 (2d Cir. 1999). Accordingly, the Court also dismisses without prejudice the due process claims against Goord and Selsky as barred by Heck.
Defendants raise a qualified immunity defense regarding Johnston, Goord and Selsky, which the Court need not reach here.
II. Sales' Eighth Amendment Claims A. Excessive Force Claim
Sales contends that Todriff, Wildrick, Guarracino and Plimley exerted excessive force against him by punching, grabbing and lifting him while he was already restrained in handcuffs and legcuffs. (Statement of Claim at 1.) Defendants do not contest the adequacy of Sales' excessive force claim, but rather assert that the claim is barred by Heck. (Defs.' Mem. in Supp. of Mot. to Dismiss at 13.) Specifically, defendants claim that if Sales succeeded in showing that defendants applied excessive force in restraining him, that determination would undermine the Johnston finding that Sales had exhibited violent behavior that required force. ( Id.)
An Eighth Amendment claim for cruel and unusual punishment may proceed only if the governmental action identified by the prisoner caused him "unnecessary and wanton infliction of pain." Whitley v. Albers, 475 U.S. 312, 319 (1986) (citations omitted). In the context of prison security measures, the infliction of pain "does not amount to cruel and unusual punishment simply because it may appear in retrospect that the degree of force authorized or applied for security purposes was unreasonable, and hence unnecessary in the strict sense." Id. at 319. Particularly where a prison security measure is "undertaken to resolve a disturbance . . . that indisputably poses significant risks to the safety of inmates and prison staff," the district court must evaluate "whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm." Id. at 320.
The Supreme Court has illuminated the contours of excessive force claims in recognizing that prison officials "must balance the need `to maintain or restore discipline' through force against the risk of injury to inmates" whether reacting to a riot or a lesser disruption. Hudson v. McMillian, 503 U.S. 1, 6 (1992). As such, a prisoner must satisfy both an objective and subjective component to assert an excessive force claim under the Eighth Amendment. First, the objective component "focuses on the harm done," and the "amount of harm that must be shown depends on the nature of the claim." Sims, 230 F.3d at 21. This standard is "contextual and responsive to contemporary standards of decency," such that alleging a serious injury is relevant, but not necessary, in stating an excessive force claim. Hudson, 503 U.S. at 8, 10 (remarking that "[t]he absence of serious injury is therefore relevant to the Eighth Amendment inquiry, but does not end it"). For example, court may also examine "the need for application of force," "the relationship between the need and the amount of force used, the threat reasonably perceived" by the guards as well as "any efforts made to temper the severity of a forceful response." Id. at 7.
In Hudson, the Supreme Court specifically granted certiorari to determine "whether the `significant injury' requirement applied by [the Fifth Circuit] accords with the Constitution's dictate that cruel and unusual punishment shall not be inflicted." Hudson, 503 U.S. at 5. The Court remarked that requiring plaintiffs to demonstrate a "significant injury" under the Eighth Amendment "would permit any physical punishment, no matter how diabolic or inhuman, inflicting less than some arbitrary quantity of injury." Id. at 9.
Second, the subject component requires the prisoner to allege that prison officials acted with a "malicious or sadistic" state of mind since "decision[s] to use force [are] generally made in haste, under pressure, and frequently without the luxury of a second chance." Trammell v. Keane, 338 F.3d 155, 162 (2d Cir. 2003). In other words, the prisoner must show that prison officials "had the necessary level of culpability, shown by actions characterized by wantonness." Sims, 230 F.3d at 21 (quotations omitted). This is consistent with the view that "[e]xcessive force does not, in and of itself, establish malice or wantonness for Eighth Amendment purposes." Romano v. Howarth, 998 F.2d 101, 186 (2d Cir. 1993).
1. The Adequacy of Sales' Excessive Force Claim
Sales alleges that he fell unconscious after six corrections officers "rushed" towards him. As he gained consciousness, Sales realized he had been placed in handcuffs and legcuffs. Two of the corrections officers — Todriff and Wildrick — lifted and dragged him towards the Facility Clinic, ostensibly because Sales was restrained and intermittently falling unconscious. Guarracino and Plimley allegedly accompanied Todriff and Wildrick. Meanwhile, Sales allegedly experienced "punches" and "grabs" although in reading Sales' complaint, the Court finds it difficult to pinpoint which individuals allegedly committed these acts. Moreover, Sales contends that he repeatedly begged Todriff and Wildrick to desist their assaults, telling them, "I[`m] not resisting and I'm in handcuffs and legcuffs." (Statement of Claim at 1.) After Sales visited the Facility Clinic and was still restrained, he claims he suffered further blows from the correctional officers escorting him to the SHU.
As a result of these alleged assaults, Sales further contends that he suffered numerous injuries including damaged lungs, swollen forehead, swollen and cut upper lip, slurred speech, internal injuries, chest pains, rib pains, shoulder aches, back pain, headaches and migraines, loose front teeth, problems with his vision, sneezing and coughing, dizziness, lack of coordination, loss of appetite, insomnia and nightmares due to these pains. ( Id. at 2.) Defendants have not contested the severity of Sales' purported injuries for the purposes of this motion.
Setting aside the issue of whether Sales has suffered sufficiently serious injuries, the Court nevertheless finds that Sales' remaining allegations satisfy the objective requirement in pleading an excessive force claim arising under the Eighth Amendment. The crux of Sales' excessive force claim is that Todriff, Wildrick, Guarracino and Plimley assaulted him as he was effectively restrained, passive, and intermittently unconscious. As such, Sales' allegations are remarkably similar to those asserted in Hudson. In Hudson, the prisoner and one of the defendant corrections officers argued in the early morning. Subsequently, this defendant, assisted by another corrections officer, "placed Hudson in handcuffs and shackles, took the prisoner out of his cell, and walked him toward the `administrative lockdown' area. Hudson, 503 U.S. at 4. On the way there, the defendant "punched [the prisoner] in the mouth, eyes, chest and stomach while [the other corrections officer] held the inmate in place and kicked and punched him from behind." Id. at 4. In reversing the Fifth Circuit, which had required that the prisoner demonstrate a "serious injury" in addition to alleging the unnecessary and wanton infliction of pain, seven justices of the Supreme Court found that the prisoner had demonstrated that defendants' conduct constituted sufficient harm for the purposes of the Eighth Amendment in that the blows directed at him were not de minimus.
Hudson originally sued the three correctional officers in federal district court although the parties subsequently agreed to proceed before a Magistrate. Hudson, 503 U.S. at 4. The Magistrate then awarded Hudson $800 in damages. Id. On appeal, the Fifth Circuit acknowledged that the use of force was unnecessary but reversed the Magistrate's award of damages because Hudson had not demonstrated a "significant injury" worthy of medical attention. Id.
In his concurrence, Justice Stevens joined the majority's opinion and judgment but remarked that the majority's focus on the "malicious and sadistic" standard was "misplaced." Hudson, 502 U.S. at 12-13 (J. Stevens concurring). Justice Blackmun also wrote a separate concurrence joining the majority's opinion to the extent that the Eighth Amendment did not require pleading a "significant injury," but also noted that "pain" should also include psychological types of harm. Id. at 15-16 (J. Blackmun concurring).
Although it is not clear how many corrections officers accompanied Sales on his trip to the Clinic, Sales has at least alleged that he was effectively restrained and also physically debilitated to the extent that he had to be carried. Accepting as true for the purposes of this motion that at least two (and at times, four) corrections officers had been accompanying Sales the entire time, any threat "reasonably perceived by the responsible officials" by Sales was small. Hudson, 503 U.S. at 7. At this early stage of the proceedings, the Court concludes that dismissal of Sales' excessive force claim is unwarranted where discovery may shed light on the extent of Sales' injuries, the need for force, the amount of force applied, and the threats reasonably perceived by the corrections officers. See Casaburro v. Giuliani, 986 F. Supp. 176, 181 (S.D.N.Y. 1997) (denying motion to dismiss where the need to handcuff plaintiff already in holding cell was "not yet apparent").
Other courts in this District have refused to dismiss complaints even at the summary judgment stage if "conflicts exist in the record regarding the degree and justification of force" in excessive force context. Evering v. Reilly, No. 98 Civ. 6718, 2001 WL 1150318, at *7 (S.D.N.Y. Sept. 28, 2001) (citing cases).
Regarding the subjective element, Sales has alleged that he begged Todriff and Wildrick to stop assaulting him with pleas such as "I[`m] not resisting and I'm in handcuffs and legcuffs." (Statement of Claim at 1.) In drawing all inferences in favor of Sales on this motion, the Court assumes that Todriff, Wildrick, Guarracino and Plimley actually heard Sales but ignored his cries. The complaint thus adequately alleges that Todriff, Wildrick, Guarracino and Plimley "had the necessary level of culpability, shown by actions characterized by wantonness." Sims, 230 F.3d at 21 (quotations omitted). Accordingly, the Court finds that Sales has sufficiently asserted allegations supporting the subjective component of an excessive force claim as well.
Sales' excessive force claim therefore passes muster on this 12(b)(6) motion against Todriff, Wildrick, Guarracino and Plimley. It is unclear to what extent Barizone, Pasquariello, Booth, Stubbs, and Richardson are alleged to be involved in the purported assaults on Sales after he was restrained. However, several considerations weigh against simply dismissing Sales' excessive force claim against these defendants. First, Sales claims that he fell unconscious at various points of the alleged assault — an allegation, which, if accepted as true, would underscore his inability to articulate sufficient facts concerning these defendants' acts and involvement. Second, the Second Circuit has cautioned district courts against dismissing pro se complaints before discovery without also granting leave to amend the complaint. Davis, 320 F.3d at 352. Accordingly, the Court grants defendants' motion to dismiss Sales' excessive force claim with respect to Barizone, Pasquariello, Booth, Stubbs and Richardson, but grants Sales leave to amend his complaint with respect to these individuals should discovery reveal facts that warrant a further amendment. 2. The Application of Heck to Sales' Excessive Force Claim
Defendants contend that Sales' Eighth Amendment claim based on excessive force is "barred by the Heck rule, because the claim would imply the invalidity of the Johnston [disciplinary] sentence." (Defs.' Mem. in Supp. of Mot. to Dismiss at 13.) As discussed earlier in this Opinion, Sales was found guilty of violent conduct, creating a disturbance, assault on staff, harassment, and refusing a direct order. (Nowve Decl., Ex. B.) The issue, therefore, is whether Sales may assert his excessive force claim without implicating the validity of Johnston disciplinary sentence.
Generally, Heck "does not require dismissal of any claim whose adjudication in favor of the plaintiff would not necessarily invalidate his conviction." Jackson v. Suffolk County Homicide Bureau, 135 F.3d 254, 256 (2d Cir. 1998) (reversing dismissal of excessive force claim that police officers coerced confession as not barred by Heck). Indeed, it is "well established than an excessive force claim does not usually bear the requisite relationship under Heck to mandate its dismissal." Smith v. Fields, No. 95 Civ. 8374, 2002 WL 342620, at *3 (S.D.N.Y. March 4, 2002) (citing cases). A claim for "the use of excessive force lacks the requisite relationship to the [disciplinary sentence]" so as to invoke the Heck rule. Jackson, 135 F.3d at 257.
Several Circuit courts have upheld excessive force claims in the context of searches and arrests despite Heck challenges. See Bourdon v. Vacco, 213 F.3d 625 (2d Cir. 2000) (table) ( Heck did not bar excessive force claims stemming from police officers' search); Robinson v. Doe, 272 F.3d 921, 922 (7th Cir. 2001) ("[p]olice might well use excessive force in effecting a perfectly lawful arrest. And so a claim of excessive force in making an arrest does not require overturning the plaintiff's conviction even though the conviction was based in part on a determination that the arrest itself was lawful"); Martinez v. City of Albuquerque, 184 F.3d 1123 (11th Cir. 1999); Nelson v. Jashurek, 109 F.3d 142, 145 (3d Cir. 1997) ("the fact that Jashurek was justified in using `substantial force' to arrest Nelson does not mean that he was justified in using an excessive amount of force in effectuating that arrest"); Smithart v. Towery, 79 F.3d 951, 952-53 (9th Cir. 1996) (per curiam) (plaintiff's excessive force claim arising out of arrest not barred by Heck); Wells v. Bonner, 45 F.3d 90, 95 (5th Cir. 1995) (remarking that Heck would not bar a civil suit for an unreasonable seizure predicated on the use of excessive force).
The issue of whether Todriff, Wildrick, Guarracino and Plimley were justified in restraining Sales for disorderly conduct is analytically distinct from the question of whether they used the appropriate amount of force in effectuating that restraint. See Davidson v. Flynn, 32 F.3d 27, 31 (2d Cir. 1994) (noting on summary judgment that although some force might be necessary to restrain prisoners during transport, material questions still arose as to whether defendants nevertheless used excessive force in enforcing restraints). While defendants' argument focuses on the fact that Sales' "`assaultive behavior' required . . . [these four defendants] to restrain him," (Defs.' Mem. in Supp. of Mot. to Dismiss at 13), the thrust of Sales' excessive force claim is that he was already restrained when the correctional officers allegedly assaulted him. Defendants do not argue that Sales continued to resist or pose a disciplinary issue once he was restrained. It is thus questionable whether Sales' excessive force claim even falls within the realm of Heck since Sales was effectively restrained when his excessive force claim arose. As such, Sales' excessive force claim does not necessarily imply the invalidity of the Johnston disciplinary sentence, and therefore, Heck does not bar this claim.
3. Supervisory Liability Against Phillips and Thacker
Sales further asserts a Section 1983 claim of supervisory liability against Phillips and Thacker predicated on the alleged acts of Todriff, Wildrick, Guarracino and Plimley. Essentially, Sales claims that Phillips and Thacker's failure to train corrections officers regarding the proper use of force when disciplining inmates caused his constitutional injuries. (Pl.'s Mem. at 8.) In response, defendants contend that Sales has failed to demonstrate that either Phillips or Thacker were personally involved in his constitutional deprivations. (Defs.' Mem. in Supp. of Mot. to Dismiss at 21-22.)
According to the Second Circuit, an individual "cannot be held liable for damages under § 1983 "merely because he held a high position of authority, but can be held liable if he was personally involved in the alleged deprivation" of the plaintiff's constitutional rights. Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 127 (2d Cir. 2004) (quotations omitted). To demonstrate personal involvement, plaintiff must allege that:
(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 the 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 . . . in failing to act on information indicating that unconstitutional acts were occurring.Id. (citing Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995)).
The Second Circuit has thus observed that it is only by "casting § 1983 claims [as `failure to train' or `failure to supervise'] that plaintiffs can link an actual decision by a high level municipal official to the challenged incident." Walker v. City of New York, 974 F.2d 293, 297 (2d Cir. 1992).
In the "failure to train" context, a supervisor will not be held liable unless the failure to train amounts to deliberate indifference. Walker v. City of New York, 974 F.2d 293, 297 (2d Cir. 1992). A deliberate indifference claim must meet three requirements:
Although prison officers alleged to have used excessive force will be held liable only if they satisfy the "malicious and sadistic" standard set forth in Hudson, the Second Circuit has clarified that in the excessive force context, a supervisor will be held liable under the "deliberate indifference" standard, rather than under the Hudson standard. Blyden, 186 F.3d at 264 (noting that Section 1983 liability of a supervisor is "analytically distinct" from that of a subordinate who allegedly used excessive force). Although the terms "deliberate indifference" and "gross negligence" have been used interchangeably in supervisory liability, the Second Circuit has clarified that gross negligence is a heightened degree of negligence rising to the level of recklessness, whereas deliberate indifference is a lesser form of intent. Poe v. Leonard, 282 F.3d 123, 140 n. 14 (2d Cir. 2002) (citations omitted).
(1) [T]he supervisory official "[knew], to a `moral certainty,' that [his] employees would confront a given situation; (2) training will reduce the risk of employees' mishandling the situation; and (3) the wrong choice by the [prison] employee will frequently cause the deprivation of a [prisoner]'s rights.Id. at 297. Here, Sales has alleged that Green Haven has a history of similar incidents of excessive force used on inmates. (Statement of Claim at 12.) He also alleges that Barizone has engaged in other assaults as recently as 2003. ( Id.) As such, Sales has sufficiently pled that his injuries stemmed from a systematic failure to train, rather than from an isolated incident, to the extent that Phillips and Thacker knew that their subordinates regularly faced issues of the appropriate amount of force. See Fiacco v. City of Rensselaer, 783 F.2d 319, 328 (2d Cir. 1986) (the assertion of a number of claims that the police had used excessive force could establish constructive knowledge). Ultimately, these allegations suffice to establish that the "wrong choice" by prison officers will frequently lead to injuries arising out of the use of excessive force, and that training would obviously reduce that risk.
It is thus possible that Sales has presented allegations, which if proven, could establish a deliberate indifference claim against Phillips and Thacker based on the failure to train corrections officers regarding the proper use of force. At the very least, the claim should be allowed to proceed to discovery so that Sales may substantiate his allegations. See Owens v. Haas, 601 F.2d 1242, 1246 (2d Cir. 1979) (enabling deliberate indifference claim premised on failure to train prison guards on use of appropriate force to survive 12(b)(6) motion). Accordingly, the Court denies defendants' motion to dismiss the claims against Phillips and Thacker at this stage of the proceedings.
4. Qualified Immunity
Defendants raise the affirmative defense of qualified immunity, arguing that it was "objectively reasonable for them to believe that their actions were not in violation of clearly established law." (Defs.' Mem. in Supp. of Mot. to Dismiss at 22.) In response, Sales claims that there are too many disputed issues of fact regarding the reasonableness of defendants' actions. (Pl.'s Mem. at 1.) Because the claims against Barizone, Pasquariello, Booth, Stubbs, and Richardson are dismissed, the Court only considers the issue of qualified immunity with respect to Todriff, Wildrick, Guarracino, Plimley, Phillips and Thacker.
Defendants' opening brief contains a blanket argument that all of the defendants are entitled to qualified immunity (Defs.' Mem. in Supp. of Mot. to Dismiss at 22-23.) However, the brief fails to identify specific arguments related to each individual's entitlement to qualified immunity.
In light of the Second Circuit's recent opinion in McKenna v. Wright, the Court initially observes that a defendant asserting a qualified immunity defense at the 12(b)(6) stage, rather than on a summary judgment motion, faces a "formidable hurdle." McKenna v. Wright, 386 F.3d 432, 434 (2d Cir. 2004). Indeed, the defendant must "accept the more stringent standard applicable to this procedural route," to the extent that a motion to dismiss based on qualified immunity may be granted only where "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief." Id. at 436. Had defendants raised the immunity defense on a summary judgment motion, Sales could not "rely on allegations in the complaint," but would be required to "counter the movant's affidavits with specific facts showing the existence of genuine issues warranting a trial." Id.
Prison officials are entitled to qualified immunity if either their actions "did not violate clearly established law," or "it was objectively reasonable for the defendant[s] to believe that [their] action[s] did not violate such law." Anderson v. Recore, 317 F.3d 194, 197 (2d Cir. 1998) (quotations omitted). The district court must first "determine whether the plaintiff has alleged the deprivation of an actual constitutional right at all, and if so, proceed to determine whether that right was clearly established at the time of the alleged violation." Sound Aircraft Servs., Inc. v. Town of East Hampton, 192 F.3d 329, 334 (2d Cir. 1999). Moreover, a right is "clearly established if (1) the law is defined with reasonable clarity, (2) the Supreme Court or the Second Circuit has recognized the right, and (3) a reasonable defendant [would] have understood from the existing law that [his] conduct was unlawful." Id. (quotations omitted).
As discussed above, Sales' complaint sets forth numerous allegations that he was dragged, lifted, punched, and grabbed while unconscious and already restrained in handcuffs and legcuffs. If accepted as true, Sales' allegations against Todriff, Wildrick, Guarracino and Plimley indicate that these defendants violated his Eighth Amendment rights. Johnson v. Testman, 380 F.3d 691, 698 n. 6 (2d Cir. 2004) (dismissal based on qualified immunity inappropriate where prisoner plaintiff alleged, inter alia, that defendant corrections officer handcuffed his hands for seven hours without any purported reason). Furthermore, it is well settled that a "prisoner's right to freedom from excessive force by prison officials is a clearly established constitutional right." See Hudson, 503 U.S. at 6. Therefore, Sales has adequately alleged that Todriff, Wildrick, Guarracino, Plimley, Phillips and Thacker acted in violation of his clearly established constitutional rights so as to survive a 12(b)(6) motion.
The remaining issue is thus whether these defendants acted with the objectively reasonable belief that they were not violating Sales' constitutional rights. This fact-intensive inquiry, however, is ill suited for determination under these circumstances in light of the dearth of allegations set forth by either party on this motion to dismiss. See Anderson, 317 F.3d at 197 (remarking that the standard hinges on "what a reasonable person in the defendant's position should know about the constitutionality of the conduct"); Warren v. Dwyer, 906 F.2d 70, 75-76 (2d Cir. 1990) (observing the difficulties in separating the merits of a claim and an accompanying qualified immunity defense and advising district courts to rule at the summary judgment stage). Not surprisingly, qualified immunity is typically addressed on motions for summary judgment because the facts are more fully developed. Manley v. Mazzuca, No. 01 Civ. 5178, 2004 WL 253314, at *4 (S.D.N.Y. Feb. 10, 2004); King v. Simpson, 189 F.3d 284, 289 (2d Cir. 1999). Moreover, several courts have remarked that a motion to dismiss based on qualified immunity "will only be granted if the complaint fails to allege the violation of a clearly established right." Williams v. Fisher, No. 02 Civ. 4558, 2003 WL 22170610, at *10 (S.D.N.Y. Sept. 18, 2003) (citing cases). At the very least, discovery into these alleged facts would help illuminate the issue of whether these defendants acted with the objective and reasonable belief that they were not violating Sales' Eighth Amendment rights. Accordingly, the Court denies defendants' motion to dismiss based on qualified immunity regarding Todriff, Wildrick, Guarracino and Plimley at this stage of the proceedings.
With respect to Phillips and Thacker, the Court observes that they must be evaluated with respect to their individual actions — namely, their alleged gross negligence in failing to train correctional officers regarding the proper use of restraint — rather than on the actions of Todriff, Wildrick, Guarracino and Plimley. Poe v. Leonard, 282 F.3d 123, 134-35 (2d Cir. 2002) (reversing denial of qualified immunity at summary judgment for supervisor based on his subordinate's unlawful choices as "patently unfair"). In Poe, the Second Circuit acknowledged its prior rulings that "a supervisor may be held liable for either his gross negligence or deliberate indifference in supervising a subordinate who violates a person's constitutional rights." Id. at 140-41. However, the Second Circuit further indicated that courts must evaluate whether it has been "clearly established" that a supervisor's failure to train his subordinates "would violate [the plaintiff's] rights in the particularized context of the facts at hand." Id. at 140 (emphasis added). Clearly, ruling on qualified immunity with respect to Phillips and Thacker is undesirable on this motion where the facts have not yet been well developed. Because the Court finds that Sales has alleged a colorable deliberate indifference claim against Phillips and Thacker, the Court denies defendants' motion to dismiss Sales' claims against Phillips and Thacker on qualified immunity grounds. B. Deliberate Indifference Claim Regarding Sales' Alleged Medical Needs 1. The Adequacy of Sales' Deliberate Indifference Claim
Defendants are free to assert any qualified immunity defenses on a summary judgment motion.
Sales asserts that Akinyombo, Christie and Dashawetz exhibited deliberate indifference to his medical needs by repeatedly denying him medical attention. (Pl.'s Amended Compl. at 6.) In response, defendants contend that Sales has failed to allege that Christie or Dashawetz had the "requisite state of mind to be held liable for deliberate indifference." (Defs.' Mem. in Supp. of Mot. to Dismiss at 16.)
To assert a deliberate indifference claim in the context of inadequate medical attention, a prisoner must first allege that the deprivation was "objectively, sufficiently serious." Farmer v. Brennan, 511 U.S. 825, 834 (1994) (quotations omitted); Hudson, 503 U.S. at 7 ("[b]ecause society does not expect that prisoners will have unqualified access of health care, deliberate indifference to medical needs amounts to an Eighth Amendment violation only if those needs are serious"). Specifically, the prisoner must suffer from a "condition of urgency, one that may produce death, degeneration, or extreme pain." Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996) (quotations omitted). As such, the standard for deliberate indifference to medical needs may be considered more "stringent" than the standard for excessive force since the former requires an objectively serious injury, while the latter does not. Warren v. Purcell, No. 03 Civ. 8376, 2004 WL 1970642, at *7 (S.D.N.Y. Sept. 3, 2004) (citing Hudson, 503 U.S. at 9.)
The inquiry as to whether the prisoner has suffered a "serious" injury is necessarily "contextual" and "fact specific." Smith v. Carpenter, 316 F.3d 178, 185 (2d Cir. 2003). For example, "the actual medical consequences that flow from the alleged denial of care will be highly relevant to the question of whether the denial of treatment subjected the prisoner to a significant risk of serious harm." Id. at 187. Here, Sales claims that he suffered multiple injuries resulting from the J Block Incident including a swollen forehead, open slash cut on the forehead, swollen upper lip with cuts, slurred speech, internal injuries, chest pains, rib injuries, shoulder aches, back pain, headaches and migraines, loose front teeth, problems with his vision, sneezing and coughing, loss of appetite, insomnia and nightmares due to these pains. (Statement of Claim at 2.) Sales further asserts that he sustained punctured and collapsed lungs — injuries for which he allegedly received inadequate medical attention. ( Id. at 4.) Defendants have not contested at this juncture that Sales suffered serious injuries for the purposes of the Eighth Amendment.
However, Sales must also satisfy the subjective component of a deliberate indifference claim by alleging that Akinyombo, Christie and Dashawetz "kn[ew] of and disregard[ed] an excessive risk to [his] health or safety." Farmer, 511 U.S. at 837. The "subjective element of deliberate indifference `entails something more than mere negligence . . . [but] something less than acts or omissions for the very purpose of causing harm or with knowledge that harm will result.'" Hathaway, 99 F.3d at 553 (quoting Farmer, 511 U.S. at 835). To be held liable, Akinyombo, Christie and Dashawetz "must be both aware of facts from which the inference could be drawn that a substantial risk of serious harm exist[ed], and [they] must also draw that inference." Farmer, 511 U.S. at 837.
Here, Sales has alleged that Christie, as well as other RN's making sick rounds were aware that his lungs were "punctured," full of "air holes," and collapsed. (Statement of Claim at 4.) According to Sales, his medical charts also contain records that he sustained collapsed lungs. ( Id. at 6.) Although Sales continuously complained to both Christie and Dashawetz, they allegedly dismissed his complaints, denied his requests to see a doctor, and refused to examine him. ( Id.) On one occasion, Dashawetz purportedly asked Sales to lift up his shirt as if to examine him for visible injuries although Dashawetz stood outside his cell. ( Id.) Yet Sales allegedly did not receive an x-ray until nearly two weeks after he purportedly suffered damages to his ribs and lungs. Nor did he receive an in-person, follow-up examination after his trip to the Facility Clinic following the J Block incident until several weeks later. ( Id.)
It is not clear, at this stage of the proceedings, why Christie and Dashawetz responded in such a way to Sales' repeated complaints of severe pain, but the Court need not address the merits of Sales' allegations on this motion to dismiss. It is sufficient that Sales has asserted a colorable claim, which if proven, demonstrates that Christie and Dashawetz may have acted with a wanton state of mind such that they "kn[ew] of and disregard[ed] an excessive risk to [Sales'] health or safety." Farmer, 511 U.S. at 837. Sales' deliberate indifference claim survives defendants' 12(b)(6) motion to the extent that he has alleged that Christie and Dashawetz knew Sales had suffered severely damaged lungs and other injuries, ignored his repeated requests for medical attention, and delayed his treatment. At the very least, Sales' allegations warrant further discovery regarding the severity of his injuries and the adequacy of the response by Christie and Dashawetz. Koehl v. Dalsheim, 85 F.3d 86, 88 (2d Cir. 1996) (allowing pro se complaint to proceed with-discovery as to whether officers were aware of plaintiff's severe medical needs); Gill v. Mooney, 824 F.2d 192, 196 (2d Cir. 1987) (unclear statements made by nurses that suggested they denied treatment as retaliatory punishment required further development of the facts).
In Davidson, the Second Circuit reversed the District Court's dismissal of the complaint pursuant to Rule 12(c) of the Federal Rules of Civil Procedure recommended by the Magistrate, noting that plaintiff's allegations that he "vociferously complain[ed] of severe pain" and was "denied medical care" were sufficient to survive a motion for judgment on the pleadings. Davidson, 32 F.3d at 31. However, the Second Circuit further commented that the claim, although sufficient at the pleading stage, "may later be dismissed on a summary judgment motion if, after discovery, there remains no genuine issue as to any material fact and the District Court determines that the defendants are entitled to judgment as a matter of law." Id. at 31 (citations omitted).
Sales' claim against Akinyombo, however, is dismissed since Sales has failed to allege that he complained to Akinyombo or that Akinyombo's failure to treat him amounted to deliberate indifference. Accordingly, the Court grants defendants' motion to dismiss the deliberate indifference claim against Akinyombo.
2. Supervisory Liability Against Wright
Sales asserts a claim of supervisory liability against Wright, alleging that his failure to properly supervise Christie and Dashawetz in providing adequate health care to prisoners amounted to deliberate indifference. (Statement of Claim at 6.) In response, defendants contend that Wright may be held liable for "systematic lapses or instructions authorizing misconduct, but not for any alleged "isolated failures" of Christie and Dashawetz. (Defs.' Mem. in Supp. of Mot. to Dismiss at 20 (citations omitted).) Additionally, defendants argue that Sales has failed to demonstrate that Wright was personally involved in his alleged constitutional injuries other than to allege that Wright acted as the "head" of the medical department at Green Haven. ( Id.)
Read liberally, Sales' complaint alleges that Wright had actual knowledge of his medical condition, as evidenced by the February 3, 2003 letter that Phillips sent to Sales. (Statement of Claim at 6, 12.) In that letter, Phillips informed Sales that he "asked the Facility Health Service Director [Wright] to review your medical chart concerning your accusations. He informs me that you have been seen on twelve occasions . . ." (Nowve Decl., Ex. D.) Moreover, Sales has alleged that Wright condoned the alleged unconstitutional practices of Christie and Dashawetz over several years, such that his failure to act amounted to deliberate indifference. (Statement of Claim at 6.) Accepting these allegations as true on the present motion, the Court concludes that Sales has adequately raised a claim of supervisory liability against Wright and therefore denies the motion to dismiss his claim against Wright.
3. Qualified Immunity
Defendants nevertheless contend that Christie, Dashawetz and Wright are shielded by qualified immunity in their motion to dismiss. (Defs.' Mem. in Supp. of Mot. to Dismiss at 22-23.) As discussed earlier in this Opinion, this Court must first determine whether the plaintiff has alleged the deprivation of an actual constitutional right and then evaluate whether the right has been clearly established. Sound Aircraft Servs., Inc., 192 F.3d at 334. Here, Sales has adequately pled that Christie and Dashawetz impermissibly withheld pain medication, medical examinations, and treatment in contravention of his Eighth Amendment rights. Moreover, a prisoner's right to adequate treatment has been clearly established. See Williams v. Koenigsmann, No. 03 Civ. 5267, 2004 WL 315279, at *5 (S.D.N.Y. Feb. 18, 2004); Burgess v. Goord, No. 98 Civ. 2077, 1999 WL 33458, at *6 (S.D.N.Y. Jan. 26, 1998). Accordingly, the Court denies defendants' motion to dismiss claims against Christie and Dashawetz on qualified immunity grounds.
Regarding Wright, the Court again observes the difficulties in evaluating whether qualified immunity is appropriate on a 12(b)(6) motion. While Sales' allegations can survive a motion to dismiss, they hardly provide the Court with a sufficient basis to ascertain the precise contours of the right asserted and the objective reasonableness of Wright's alleged actions in supervising Christie and Dashawetz for the purposes of qualified immunity. Under these circumstances, the question of qualified immunity is best left to resolution at the summary judgment stage. Accordingly, the Court deems it inappropriate to dismiss claims against Wright based on qualified immunity.
III. Conclusion
The Court dismisses all claims arising out of the Johnston and Haubert hearings against Johnston, Haubert, Goord and Selsky without prejudice under the Heck doctrine. Additionally, the Court grants defendants' motion to dismiss excessive force claims against Barizone, Pasquariello, Booth, Stubbs, and Richardson arising out of the J Block incident, but grants Sales leave to amend his complaint with greater specificity as to their involvement. The Court also dismisses claims arising out of Sales' alleged medical needs against Akinyombo. The remaining claims against Todriff, Wildrick, Guarracino, Plimley, Phillips, Thacker, Christie, Dashawetz and Wright may proceed.
SO ORDERED.