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WATSON v. MCGINNIS

April 16, 1997

ANTHONY WATSON, Plaintiff, against SUPT. JOHN McGINNIS OF DOWNSTATE CORRECTIONAL FACILITY, et al., Defendants.


The opinion of the court was delivered by: PECK

 ANDREW J. PECK, United States Magistrate Judge:

 To the Honorable Lewis A. Kaplan, United States District Judge:

 In this 42 U.S.C. § 1983 action, pro se plaintiff Anthony Watson seeks monetary damages of over $ 10 million and "administrative protection" from the superintendent, a captain and two corrections officers at Downstate Correctional Facility for alleged violations of Watson's constitutional rights. (Complaint, dated April 14, 1996, § V.) Watson alleges that defendant Corrections Officer Ruiz told other inmates that Watson was a "snitch," and defendant Corrections Officer Decker watched while another inmate attacked Watson, cutting Watson's throat. (Cplt. § IV.) Watson alleges that he had written to Superintendent John McGinnis *fn1" about Officer Ruiz's action and that Captain William Many had responded that they would look into it.

 Defendants McGinnis, Many and Ruiz move to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6). Officer Decker, who no longer works for the Department of Corrections, does not appear to have been served with the summons and complaint.

 For the reasons set forth below, I recommend that the Court grant the motion to dismiss without prejudice as to defendants Supt. McGinnis and Capt. Many for lack of personal involvement, and deny the motion to dismiss as to defendant Corrections Officer Ruiz. I also recommend sua sponte that the Court dismiss the complaint without prejudice as to Corrections Officer Decker for failure to serve him within 120 days as required by Fed. R. Civ. P. 4(m).

 FACTS

 On a motion to dismiss, the Court must accept the well-pleaded allegations in the complaint as true. E.g., Cosmas v. Hassett, 886 F.2d 8, 11 (2d Cir. 1989). The Court will summarize the allegations in Watson's complaint without resort to the phrase "plaintiff alleges" before each statement from the complaint.

 On March 26, 1996, *fn2" Corrections Officer Ruiz questioned Watson concerning a broken television set. (Watson Br. at 1; Cplt. § IV.) When Watson said he had no knowledge, Corrections Officer Ruiz locked Watson in his cell and told the other inmates that: (1) Watson said that they had broken the television set and (2) Ruiz had placed Watson in "keeplock" so the other inmates would not "hurt him . . . for being a snitch." (Cplt. § IV; Watson Br. at 1.) After other inmates told Watson about Ruiz's comments, Watson wrote to Superintendent McGinnis that he was "in some trouble with the inmates" due to Officer Ruiz's actions. (Cplt. § IV; Watson Br. at 1.) Watson's brief alleges that his imminent and grave danger should have been apparent to Supt. McGinnis because of the "unwritten rule" in prisons that "snitches are much hated." (Watson Br. at 1.)

 The following day, March 27, 1996, Watson received a letter from Captain William Many, Acting Deputy Superintendent for Security, stating that Watson's letter had been received and would be handled "appropriately." (Cplt. § IV; Watson Br. at 2.) Later that evening, Officer Decker told Watson to "step out of his cell" to "get some air by the steps." (Cplt. § IV; Watson Br. at 2.) About an hour later, Watson was approached by another inmate, Lewis McGraw, who threatened that "snitches get stitches!" (Cplt. § IV.) McGraw slashed Watson's neck with a weapon while Officer Decker watched without intervening. (Cplt. § IV; Watson Br. at 2.)

 After the attack, Officer Decker locked Watson back in his cell, saying his wounds "didn't look too bad," and left. (Cplt. § IV; Watson Br. at 2.) Watson was treated later at the prison hospital, where photographs of his injuries were taken. (Cplt. § IV-A.)

 Watson seeks "in excess" of $ 10 million damages "and administrative protection from the carelessness of the state officials and employees." (Cplt. § V.) He requests a jury trial. (Id.)

 ANALYSIS

 I. WATSON'S SECTION 1983 CLAIMS AGAINST SUPERINTENDENT MCGINNIS AND CAPTAIN MANY FAIL BECAUSE THE COMPLAINT DOES NOT ALLEGE THAT THEY HAD ANY ...


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