Appeal from a judgment of the United States District Court for the Western District of New York, John T. Curtin, Ch. J., dismissing appellant's amended complaint. Affirmed in part, reversed in part, and remanded.
Cardamone and Pierce, Circuit Judges, and Stanton, District Judge.*fn*
The law is settled that a prisoner cannot base a federal civil rights action brought under 42 U.S.C. § 1983 on claims of a negligent failure of state prison officials to protect him from injury at the hands of another inmate. In this action for damages, however, the plaintiff-appellant, a state prisoner who appeared pro se before the district court, essentially claims that he was injured by a vengeful fellow inmate, due to the deliberate and callous indifference of the defendants, who are prison personnel. Defendants moved to dismiss the complaint; plaintiff moved to amend his complaint; the district court, John T. Curtin, Ch. J., allowed plaintiff to amend and, on the amended complaint, granted appellees' motion to dismiss and denied leave to file a second amended complaint. For the reasons discussed below, we affirm in part, reverse in part, and remand.
In April, 1986, appellant Miguel Morales, formerly an inmate at the Collins Correctional Facility II in Helmuth, New York, commenced this action for damages, alleging that the four named defendants -- the New York State Department of Corrections, State Commissioner Thomas Coughlin, Collins Superintendent Charles James, and Corrections Officer Friedman -- were responsible for an attack perpetrated against him by a fellow inmate, one Baker. Morales filed an amended complaint in December, 1986, which (1) dropped the State Department of Corrections and Commissioner Coughlin as defendants; (2) named as additional defendants prison officials Wilson, Dersham, Matos, and Rivera; and (3) incorporated by reference additional factual allegations as set forth in an accompanying affidavit signed by Morales. Morales alleged that he and Baker had previously fought on February 25, 1986, which led to a "Tier 3 hearing," following which plaintiff and Baker were separated. The subject attack occurred on April 9, 1986, at approximately 5:45 p.m., while plaintiff was lying on a bed in the dormitory. At that time, Baker "was allowed to enter" plaintiff's housing unit, although Baker was "without authorization to be in the dormitory;" thereupon Baker attacked plaintiff, causing him to suffer "a broken and bleeding nose, scratched eye and multiple contusions on [his] face and head."
For purposes of reviewing the dismissal being appealed, we must assume the pro se plaintiff's allegations to be true as well as read his complaint liberally. This we do with respect to the above-stated assertions as well as those which follow.
Corrections Officer Friedman
Friedman was the officer on duty in the dormitory when the attack occurred. He allowed Baker to enter the dormitory without authorization in violation of applicable rules. Friedman "did not try to stop the assault while it took place;" he "stood and watched it continue until [plaintiff] forced [himself] to get up." "That was when he told [Baker] to back off."
Following the incident of February 25, 1986, plaintiff admitted to Rivera that he and Baker had fought. Rivera was aware that the incident had led to a hearing and a "separation" of the two. Two weeks after the incident, Baker was returned to the same building, causing plaintiff to tell Sergeant Rivera "numerous times" that he felt threatened and that it was dangerous to have them together. Rivera already knew that Baker was "extorting and assaulting other inmates."
On the morning of April 9, 1986, plaintiff reported to the Captain that he was in danger. The Captain told him to speak to Lt. Matos, as head of security. Plaintiff told Matos of an actual attempt by Baker to assault plaintiff the previous day, when Baker had lain in wait for plaintiff with a makeshift weapon. Lt. Matos told plaintiff he would ...