Correctional Services ("DOCS"), commenced this action under
42 U.S.C. § 1983. Plaintiff named a number of individuals at Attica
Correctional Facility ("Attica") as defendants: Attica
Superintendent Victor Herbert, Attica Sergeants Glenn Randall
and Richard Simmons, and Attica Correctional Officers Anthony
Marino, Kirk Koenig, Lawrence Hale and James Zack, as well as
DOCS Commissioner Glenn Goord and DOCS Senior Investigator Mark
Miller. Plaintiff alleges that all defendants violated his
constitutional rights under the Eighth and Fourteenth
Amendments. Presently before the Court are the motions of
defendants Goord and Miller for summary judgment (Dkt. Nos. 32
and 15, respectively). Both motions are granted.
At all times relevant herein, plaintiff has been in DOCS
custody and incarcerated at Attica. Defendant Glenn Goord is the
Commissioner of DOCS. Defendant Mark Miller is employed by the
DOCS Inspector General's Office as a Senior Investigator.
In his complaint, plaintiff claims that all defendants
violated his constitutional rights under the Eighth and
Fourteenth Amendments by assaulting him, and, after he
complained about it, retaliating against him with a further
assault and a false misbehavior report that resulted in a
conviction at a Tier III hearing, and by failing to protect him
despite knowledge of the practices of a specified group of
correctional officers who regularly assault inmates and then
retaliate against any inmates who report the abuse. In addition,
plaintiff charges that defendants Goord and Miller have been
aware of these actions and have failed to intervene.
I. Summary Judgment — General Standards
Summary judgment is appropriate where "there is no genuine
issue as to any material fact and . . . the moving party is
entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c).
In ruling on a motion for summary judgment, the court "must view
the evidence in the light most favorable to the non-moving party
and draw all reasonable inferences in its favor." McKelvie v.
Cooper, 190 F.3d 58, 61 (2d Cir. 1999). Where, as here, the
plaintiff is proceeding pro se, the court will liberally
construe the plaintiffs pleadings, and "interpret them `to raise
the strongest arguments that they suggest.'" McPherson v.
Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (citing Burgos v.
Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)). Nevertheless,
proceeding pro se does not otherwise relieve a litigant of the
usual requirements of summary judgment, and a pro se party's
bald assertions, unsupported by evidence, are insufficient to
overcome a motion for summary judgment. Carbonell v. Goord,
99-CV-3208, 2000 WL 760751, *5 (S.D.N.Y. June 13, 2000).
II. Defendants' Personal Involvement
"It is well settled in this Circuit that personal involvement
of defendants in the alleged constitutional deprivations is a
prerequisite to an award of damages under § 1983." Johnson v.
Newburgh Enlarged School Dist., 239 F.3d 246, 254 (2d Cir.
2001), quoting Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.
1995); see also Gaston v. Coughlin, 249 F.3d 156, 164 (2d.
Cir. 2001). The personal involvement of a supervisory defendant
may be shown by evidence 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
subordinates who committed the wrongful acts, or (5) the
defendant exhibited deliberate indifference to the rights of
inmates by failing to act on information indicating that
unconstitutional acts were occurring. Colon v. Coughlin,
58 F.3d 865, 873 (2d Cir. 1995); Williams v. Smith, 781 F.2d 319,
323-24 (2d Cir. 1986). Because of their lack of personal
involvement in any of the alleged deprivations of plaintiffs
rights, Goord and Miller must be dismissed as defendants.
A. Defendant Goord
The complaint does not allege that Goord directly participated
in either the alleged assaults or the alleged retaliatory action
against plaintiff for reporting the assaults, or that Goord
created a policy or custom under which any inappropriate conduct
occurred. In addition, Goord denies personal knowledge of the
events described in the complaint.
Nevertheless, plaintiff attempts to link Goord to his claims
based upon his contention that plaintiff mailed certain letters
of complaint to Goord in 2001. However, it is undisputed that,
in accordance with DOCS procedures, Goord never saw any of these
letters. Rather, the letters addressed to and received by his
office were reviewed by his staff and forwarded to DOCS Deputy
Commissioner for Facility Operations Lucien Leclaire, Jr. for
investigation and response. LeClaire investigated plaintiffs
complaints and responded to plaintiff in letters dated July 18,
2001, July 30, 2001, and September 6, 2001.
Other than this very attenuated connection, there is no
evidence that Goord had any personal involvement in the case. In
a case involving similar facts, the Second Circuit held:
Sealey [the plaintiff] wrote two letters to Coughlin
[a former DOCS commissioner]. Coughlin referred the
first letter, Sealey's appeal from [his]
administrative segregation hearing, to defendant
Selsky for decision. Sealey's second letter was a
status inquiry to which Coughlin responded by
informing Sealy that Selsky had rendered a decision.
Sealey's letters and Coughlin's response do not
demonstrate the requisite personal involvement on
Coughlin's part, and we affirm the dismissal of
Sealey's claims against Coughlin.
Sealey v. Giltner 116 F.3d 47, 51 (2d Cir. 1997). Cf. Wright