The opinion of the court was delivered by: CARTER
Plaintiff, Martin K. Stevens, initiated this action against the County of Dutchess and its sheriff, Lawrence Quinlan. He asserts five causes of action against the defendants, two of which allege violations of 42 U.S.C. § 1983, and three of which allege violations of New York law.
Defendant Quinlan now moves to dismiss the complaint as against him pursuant to Rule 12(b), F.R. Civ. P., for failure to state a claim upon which relief can be granted. For the reasons stated below, defendant Quinlan's motion is denied except as to count four of the complaint (malicious prosecution) as to which it is granted.
Plaintiff has alleged the following "facts" which must be deemed true for purposes of disposing of this motion. Jenkins v. McKeithen, 395 U.S. 411, 421, 23 L. Ed. 2d 404, 89 S. Ct. 1843 (1969); Van Horn v. Lukhard, 392 F. Supp. 384, 386 (E.D. Va. 1975). On or about May 30, 1976, the defendants, through their agents, arrested plaintiff without a warrant and without reasonable cause to believe that he committed any crime. He was "booked" on a charge of burglary and imprisoned in the Dutchess County Jail ("Jail"). The Jail was supervised in such a way that the prisoners were in a "continuous condition of fear for their safety" and this condition had prevailed at the Jail for a period of more than two years. During the entire day of June 13, and then again on June 14, at least four of plaintiff's fellow prisoners beat, battered, abused and sodomized him. As a result of these assaults, plaintiff claims that he suffered physical injury, mental and emotional distress, and severe psychological damage. On June 15, plaintiff was discharged from custody.
To secure a dismissal of Steven's complaint, defendant must show "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957); accord Williams v. Vincent, 508 F.2d 541, 543 (2d Cir. 1974). Moreover, complaints must be viewed broadly in the context of civil rights actions. United States ex rel. Hyde v. McGinnis, 429 F.2d 864, 865 (2d Cir. 1970); Van Horn v. Lukhard, supra, 392 F. Supp. at 386, 386 n.1.
In order to state a cause of action under § 1983, plaintiff must meet two requirements. "First, he must allege that the defendants have deprived him of a right secured by 'the Constitution and laws' of the United States. Second, he must further allege that the defendants acted under 'color of state law' in infringing his constitutionally protected right." Van Horn v. Lukhard, supra, 392 F. Supp. at 386, citing, Adickes v. S.H. Kress & Co., 398 U.S. 144, 150, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970). No question is raised here as to whether the defendant was acting under color of state law, rather the controversy centers upon whether Quinlan acted in such a way as to deprive plaintiff of his constitutionally protected rights.
Plaintiff does not specify those constitutional rights of which he was allegedly deprived. Presumably he relies on his rights under the due process clause. See, e.g., Arroyo v. Schaefer, 548 F.2d 47 (2d Cir. 1977); Johnson v. Glick, 481 F.2d 1028 (2d Cir.), cert. denied, 414 U.S. 1033, 94 S. Ct. 462, 38 L. Ed. 2d 324 (1973).
In order to violate plaintiff's rights under the due process clause, the defendant's conduct must "shock the conscience," and there must be present "circumstances indicating an evil intent, or recklessness, or at least deliberate indifference to the consequences of his conduct for those under his control and dependent upon him." See Arroyo v. Schaefer, supra, 548 F.2d at 49; Williams v. Vincent, supra, 508 F.2d at 543-44, 46.
Relying principally on the decisions in this circuit in Williams v. Vincent, supra, and Johnson v. Glick, supra, defendant argues for dismissal on the grounds that imposing liability on him for the acts of his subordinates would violate the well-established principle that respondeat superior does not apply in actions brought under § 1983. Defendant's argument is unpersuasive.
In Williams v. Vincent, supra, the Second Circuit refused to impute to the warden of a correctional facility the allegedly negligent conduct of one of his prison guards in allowing one inmate to assault another. The court held that the doctrine of respondeat superior simply did not apply in actions under § 1983, and consequently the action against the warden had to be dismissed. 508 F.2d at 546.
Similarly, in Johnson v. Glick, supra, the Second Circuit refused to ascribe to a warden the conduct of one of his guards who had assaulted a prisoner. 481 F.2d at 1034. Both decisions indicated, however, that if there had been an allegation of a "history of previous episodes requiring the warden to take therapeutic action," the plaintiff would have alleged sufficient personal responsibility on the part of the warden to state a claim against him under § 1983. Johnson v. Glick, supra, 481 F.2d at 1034; accord, Williams v. Vincent, supra, 508 F.2d at 546.
In the case at bar, plaintiff does more than allege a simple, isolated instance of negligence on the part of one jail guard and attempt to ascribe that conduct to the sheriff. Plaintiff alleges a history of incidents over a period of two years during which time the inmates of the Dutchess County facility were constantly subjected to violent attacks by their fellow prisoners. Consequently this case falls within the category of cases where the warden may be held personally responsible for his failure to take "therapeutic action" in response to a history of previous episodes of violence. Johnson v. Glick, supra, 481 F.2d at 1034. If Sheriff Quinlan is held liable in damages it will be for his own misconduct, not for the misconduct of others which is imputed to him. See Wright v. McMann, 460 F.2d 126 (2d Cir. 1972).
Defendant argues further that even if he can be said, in some sense, to be personally responsible for allowing the attack upon the plaintiff to take place, his conduct constitutes no more than simple negligence and, therefore, does not state a cause of action under § 1983. See United States ex rel. Hyde v. McGinnis, supra. As we read plaintiff's complaint, however, he indicates circumstances which, if established, would support a finding of deliberate indifference on the part of the sheriff to the legitimate concern of jail inmates for their personal safety. Cf. Bishop v. Stoneman, 508 F.2d 1224 (2d Cir. 1974) (per curiam) (legitimate medical needs). This "callous indifference to the predictable consequences of substandard prison conditions" is sufficient to infer an official intent to inflict unwarranted harm in violation of plaintiff's constitutional rights. See United States ex rel. Miller v. Twomey, 479 F.2d 701, 721 (7th Cir. 1973), cert. denied, 414 U.S. 1146, 94 S. Ct. 900, 39 L. Ed. 2d 102 (1974).
In Williams v. Vincent, supra, the Second Circuit indicated that a history of acts on the part of a prison guard in allowing one prisoner to assault another would be sufficiently indicative of "deliberate indifference" to the personal safety of the prisoners to reach the level of a constitutional deprivation cognizable under § 1983. In the analogous context of medical care, the Second Circuit reversed a lower court's dismissal of a complaint where the complaint had alleged a series of incidents of alleged malpractice. Bishop v. Stoneman, supra. The court reasoned that a series of such incidents "closely related in time . . . may disclose a pattern of conduct amounting to deliberate indifference to the medical needs of prisoners." Id. at 1226. Since such deliberate indifference to legitimate medical needs stated a cause of action under § 1983, see Martinez v. Mancusi, 443 F.2d 921 (2d Cir. 1970), the court held that the plaintiffs were entitled to try the merits of their claims. Similarly in the instant situation, if plaintiff can establish a series of prisoner assaults sufficient to indicate a pattern of deliberate indifference on the part of the sheriff to the personal safety of individual prisoners, he has made out a claim of constitutional dimension which is actionable under § 1983.
Just recently, in Gilliard v. Oswald, 552 F.2d 456 (2d Cir. 1977), the Court of Appeals implicitly recognized the viability of a § 1983 action based upon a prison official's failure to respond to a series of prisoner assaults on other prisoners. In Gilliard, the Superintendent of the prison responded to a pattern of inmate attacks by summarily transferring certain inmates deemed to be "disruptive" or "potentially disruptive" to very restrictive, special housing units pending completion of his investigation of the incidents. In rejecting the claim made by ...