("CO") Robert Baldwin ("Baldwin"), who, according to plaintiff,
somehow encouraged or caused the alleged assault. Plaintiff also
alleges that he was denied medical care following the alleged
assault and that McClellan is liable for this alleged lack of
1. McClellan's Liability for the Alleged Assault
Plaintiff was involved in an altercation with Baldwin at
Southport on June 26, 1990. See Affirmation in Opposition, Ex.
B, Baldwin Deposition, p. 15-16. According to plaintiff, he was
transferred out of Southport that night. Baldwin filed an inmate
misbehavior report following this incident. See Affirmation in
Opposition, Ex. C. Thus, plaintiff claims that McClellan was
aware of this altercation. In February of 1991, plaintiff was
transferred back to Southport. Plaintiff alleges that upon his
return, two officers threatened him and told him that CO Baldwin
would be glad to see him. See Affirmation in Opposition, Ex.
A, Richardson Deposition, p. 53. Later, Baldwin and another
officer allegedly indicated that Richardson should have never
been sent back to Southport. See Id. On February 9, 1991,
Richardson sent a letter to Iman Alaji ("Alaji"), the Southport
Muslim Coordinator. In his letter, plaintiff indicated that two
officers threatened him, and that one officer, identified as CO
Shaylor, told him that several CO's, including CO Baldwin, could
not "wait to get their hands on" him. Affirmation in Opposition,
Ex. E, p. 3. There was no mention of any first-hand, personal
threat by Baldwin. Richardson also made several requests in his
letter, including a request that Alaji come to see him, put him
on the "Ramadan list," and provide him with a prayer schedule.
McClellan apparently also received plaintiffs letter, and
assigned Southport Deputy Superintendent for Security Services
W.L. Cuer ("Cuer") to investigate plaintiffs complaint. See
Id. at 1. Cuer dismissed plaintiffs complaint as an attempt to
receive quicker attention from Alaji. See Id. at 4.
On the day of the alleged assault, Baldwin was temporarily
assigned to plaintiff's cell block. Prior to the search of
plaintiff's cell, Baldwin, responding to a query from a CERT
sergeant, told the sergeant that plaintiff and three or four
other inmates were "trouble" inmates. Affirmation in Opposition,
Ex. B, Baldwin Deposition, p. 26. Plaintiff alleges that
following the assault, Baldwin came to plaintiffs cell with two
CERT officers and told plaintiff that "next time you know we are
going to kill you." Id. at 48-49. Plaintiff also asserts that
on June 18, 1991, Baldwin suggested that he played a role in the
assault, as a reprisal for the June 1990 incident.
Assuming that Baldwin did somehow encourage or cause the
alleged assault, the question becomes whether McClellan can be
held liable for Baldwin's conduct. Plaintiff does not claim that
McClellan directly participated in the alleged assault, nor does
he claim that McClellan failed to remedy a constitutional wrong.
Instead, plaintiff argues that McClellan was "responsible for
the proper functioning of the entire facility" and "should have
taken steps to insure that Baldwin was not positioned in close
proximity to plaintiff, particularly in the aftermath of a riot
when tensions were high." Plaintiffs Memorandum of Law, p. 4.
This is not enough to impose liability on McClellan.
Richardson relies on his complaint to Alaji, forwarded to
McClellan, as evidence of McClellan's knowledge of the danger
Baldwin posed to plaintiff. However, nowhere in this letter did
Richardson indicate that Baldwin threatened him directly.
Viewing the facts in the light most favorable to plaintiff,
Richardson has not established McClellan's personal involvement
in the alleged constitutional deprivation.
2. The Alleged Denial of Medical Care
The denial of medical care may rise to the level of an Eighth
violation. See Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir.
1994). To establish such a violation, "a prisoner must prove
`deliberate indifference to [his] serious medical needs.'" Id.
(quoting Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50
L.Ed.2d 251 (1976)). The deliberate indifference standard
includes both objective and subjective elements: 1) "the alleged
deprivation must be, in objective terms, sufficiently serious";
and 2) "the defendant must act with a sufficiently culpable
state of mind." Chance v. Armstrong, 143 F.3d 698, 702 (2d
Cir. 1998) (internal quotation marks omitted) (quoting Hathaway
v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994)).
Plaintiff alleges in his complaint that he was not provided
with medical care in a timely manner following the alleged
assault. See Complaint, ¶ 42. Plaintiff claims that he
suffered a dental injury during the assault, and that despite
his complaints, he did not see a dentist until 18 days later.
See Richardson Affirmation, ¶¶ 4-7, 22. When Richardson did see
the dentist, he had an oral infection. See Affirmation in
Opposition, Ex. M, Lax Deposition, p. 21.
Plaintiff alleges that "[t]he Superintendent knew or should
have known of plaintiffs condition, and exhibiting deliberate
indifference, he failed to obtain immediate medical attention
for plaintiff." Complaint, ¶ 41. On June 4, 1991, four days
after the alleged assault, plaintiff forwarded a request to Dr.
Theodore Lax requesting emergency dental treatment. Security was
unable to bring plaintiff to the dentist until June 18. See
Affirmation in Opposition, Ex. M; Lax Deposition, ¶ 19.
In addition, soon after the alleged assault, Richardson filed
an Inmate Grievance Complaint, which indicated his urgent need
to see a dentist. See Richardson Affirmation, Ex. B.
Richardson alleges that he prepared the complaint on June 4,
1991. See Richardson Affirmation, ¶ 11. According to
plaintiff, Alaji attempted to deliver the grievance, and
reported to plaintiff on June 7, 1991, that McClellan would not
accept it. See Id. at 12-13. Plaintiff maintains that Alaji
mailed the complaint to McClellan on June 7, 1991. The complaint
itself, attached to Richardson's Affirmation as Exhibit C, is
stamped as received on June 17, 1991. McClellan averred that
inmate grievances are generally handled by the Inmate Grievance
Office. See Coughlin Affidavit, ¶ 13. It is that office's date
stamp that appears on Exhibit C to Richardson's Affirmation.
McClellan's response, which is undated, indicates that the
complaint was investigated and that plaintiff was seen by both
the dentist and the doctor.*fn3 The record indicates, and
plaintiff does not dispute, that plaintiff was seen by medical
staff on June 3, 4, and 17. See McClellan Affirmation, Ex. A;
Richardson Affirmation, ¶¶ 7, 21.
Assuming, arguendo, that plaintiff's medical condition was
sufficiently serious, plaintiff has not established that
McClellan was even aware of his alleged injuries, let alone that
McClellan was deliberately indifferent to plaintiffs serious
medical needs. Moreover, the record suggests that McClellan did
not receive plaintiff's complaint until July 17, 1991. Plaintiff
saw the dentist the next day. See Affirmation in Opposition,
Ex. N. Any alleged delay in medical treatment following the
receipt of plaintiffs grievance was de minimus.
Even assuming that McClellan received plaintiffs letter, yet
took no action, plaintiff has still not established McClellan's
personal involvement in the alleged constitutional deprivation.
"Generally, the allegation that a supervisory official ignored a
prisoner's letter protesting unconstitutional conduct is not
itself sufficient to allege the personal involvement of the
official so as to create liability under § 1983." Pritchett v.
Artuz, 2000 WL 4157, at *6 (S.D.N.Y. Jan. 3, 2000) (quoting
Gayle v. Lucas, 1998 WL 148416, at *4 (S.D.N.Y. Mar. 30,
1998)); see Thomas v. Coombe, 1998 WL 391143, at *6 (S.D.N.Y.
July 13, 1998) (Even assuming that plaintiff wrote letters
complaining of a denial of medical care to supervisory
defendants, "the fact that an official ignored a letter alleging
unconstitutional conduct is not enough to establish personal
involvement."); Woods v. Goord, 1998 WL 740782 (S.D.N.Y. Oct.
23, 1998) (Receiving letters or complaints does not
automatically make a supervisor liable for the denial of medical
For the reasons discussed above, defendant McClellan's motion
for summary judgment is granted.
D. Plaintiffs Destruction of Property Claim
Plaintiff alleges that CERT personnel destroyed personal
property found in his cell, including family photographs, books
and magazines, personal correspondence, and legal materials.
See Complaint, ¶ 4. Thus, plaintiff alleges that he was
deprived of property without due process of law.
The deprivation of property by a state employee will not be
found to violate the Due Process Clause where an adequate state
post-deprivation remedy is available. See Hudson v. Palmer,
468 U.S. 517, 533, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984).
However, "an adequate post-deprivation remedy is a defense to a
Section 1983 due process claim only where the deprivation is
random and unauthorized." Alexandre v. Cortes, 140 F.3d 406,
411 (2d Cir. 1998) (quoting Butler v. Castro, 896 F.2d 698,
700 (2d Cir. 1990)). Therefore, where the deprivation is the
result of established state procedures, "the existence of
independent state relief does not defeat a Section 1983 claim."
Id.; see Sullivan v. Town of Salem, 805 F.2d 81, 86 (2d Cir.
1986) (If local official's conduct "either established or was
pursuant to town policy" the existence of an adequate
post-deprivation remedy does not foreclose section 1983
Plaintiff argues that "[g]iven the apparent widespread
destruction of property, . . . there is a genuine issue of fact
as to whether the intentional destruction of plaintiffs property
was actually part of the established state procedure employed
by DOCS." Plaintiffs Memorandum of Law, p. 17-18 (emphasis in
original). In support of this claim, plaintiff offers only
Duncan's deposition testimony that he was aware that there were
several claims from inmates that officers had destroyed personal
property. See Affirmation in Opposition, Ex. F, Duncan
Deposition, p. 43. Duncan also agreed that he had determined
that some of the inmates' personal property had been destroyed
by CERT officers, although he was not sure which team of CERT
officers were involved. See Id.
Duncan's testimony by no means establishes a systematic
destruction of property that could be construed as DOCS
procedure during a post-disturbance search for contraband.
Plaintiffs attempts to show an established state procedure are
grounded only in conclusory statements supported by scant
evidence. As such, plaintiffs property claim cannot withstand a
motion for summary judgment. See Kulak v. City of New York,
88 F.3d 63, 71 (2d Cir. 1996); Brown v. Williams, 1998 WL 841638,
at *2 (E.D.N.Y. Dec. 2, 1998) (Summary judgment should be
granted where the nonmoving party's "evidence is merely
colorable, conclusory, speculative, or not significantly
For the foregoing reasons, the supervisory defendants' motion
for summary judgment (Dkt.# 40) is hereby granted. Defendants'
motion to strike attorney
Calabrese's Affirmation (Dkt.# 57) is hereby denied.
IT IS SO ORDERED.