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April 23, 2003


The opinion of the court was delivered by: David G. Larimer, United States District Judge



Plaintiff, Herbert Burgess ("plaintiff"), an inmate in the custody of the New York State Department of Correctional Services ("DOCS") and previously incarcerated at Southport Correctional Facility ("Southport"), brought this action against Sergeant Gary Morse, Southport Superintendent Michael McGinnis, and Commissioner of DOCS Glenn S. Goord, pursuant to 42 U.S.C. § 1983 alleging violations of his Eighth Amendment rights. Plaintiff claims that Sergeant Morse identified him as a snitch to other inmates and that he and Superintendent McGinnis thereafter failed to protect him. Plaintiff also claims that Commissioner Goord improperly denied his request to be transferred into the Federal Bureau of Prisons. Plaintiff seeks punitive and compensatory damages.*fn1

Defendants have moved for summary judgment on the ground that plaintiff failed to exhaust his administrative remedies prior to commencing suit, as required by the Prison Litigation Reform Act of 1995 ("PLRA"), 42 U.S.C. § 1997e(a), and the Supreme Court's decision in Porter v. Nussle, 534 U.S. 516 (2002). Defendants also move for summary judgment seeking to dismiss plaintiff's claims brought against them in their official capacities. Defendant Goord further moves for summary judgment on the ground that he had no personal involvement in the alleged violation of plaintiff's constitutional rights.

Plaintiff argues that he sufficiently exhausted his administrative remedies through formal and informal channels. Plaintiff further argues that Commissioner Goord is not entitled to summary judgment because he personally knew about the constitutional violations through a series of letters plaintiff sent to him requesting that he be transferred from Southport.

For the reasons that follow, defendants' motion for summary judgment is granted. Plaintiff's claims against defendants in their official capacities are dismissed because no such liability exists under § 1983. Plaintiff's claims against defendants Morse and McGinnis are dismissed without prejudice because plaintiff failed to exhaust all available administrative remedies prior to filing suit in federal court. Lastly, defendant Goord's motion for summary judgment is granted because Goord lacked the requisite personal involvement in the alleged unconstitutional violation, and did not deliberately disregard a substantial risk of harm to plaintiff.


Construed in a light most favorable to the plaintiff, the following facts are taken from the complaint and various pleadings filed to date in this case. In July and August of 2001, plaintiff sent a lengthy ten-page letter to both United States Congressman Charles B. Rangel and Commissioner Goord. In it, plaintiff described "the many incidents" during which he allegedly had been assaulted, "including raped, robbed, and extorted," by other inmates at no fewer than ten different DOCS facilities where he had been incarcerated since 1993. Plaintiff requested that he be placed "somewhere safe," and suggested either the Assessment and Program Preparation Unit at Clinton Correctional Facility or a transfer into the Federal Bureau of Prisons. Congressmen Rangel sent Commissioner Goord a letter requesting the Goord investigate plaintiff's allegations. Dkt. #36, Exs. A, C, and D.

Commissioner Goord responded to Rangel that DOCS policy is "not to process routine inmate requests for transfer either into or out of this State's correctional system." Further, Goord explained that DOCS had investigated plaintiff's allegations as they had been made and had "taken necessary measures when warranted." Id. at Ex. B. On August 20, 2001, Deputy Commissioner Lucien Leclaire, to whom Commissioner Goord had referred plaintiff's letter, wrote to plaintiff and instructed him to address issues concerning his personal safety with facility officials and to discuss transfer options with his correction counselor. Dkt. #36, Ex. E.

At the time of his complaint to Goord, plaintiff was housed in cellblock D of Southport, a special housing unit where inmates remain in their cells alone all day, with the exception of an optional one-hour of exercise time.*fn2 The record does not show that plaintiff took any steps at the facility level to address his safety concerns or his desire to be transferred, and plaintiff makes no allegations that he did so until later in the fall of 2001, after an incident with another inmate.

On October 18, 2001, inmate Pickens attempted to extort plaintiff by threatening him and his family with physical harm. Pickens had obtained plaintiff's father's address and was threatening to use his gang connections to cause his father harm unless plaintiff paid a relative of Pickens $50.00. At first, plaintiff complied and requested that Inmate Accounts process a disbursement to Cynthia Pickens in Albany. Dkt. #12, Ex. G. However, on October 22, plaintiff cancelled the disbursement request and complained to prison officials that he was being extorted. Specifically, plaintiff wrote a letter to Sgt. Morse about the incident and expressed fear for his own and his father's safety. Plaintiff requested that he be moved away from Pickens and that his family be protected. Dkt. #12, Ex. I.

Sgt. Morse investigated plaintiff's claims and, on October 29, 2001, issued a misbehavior report to Pickens. Dkt. #12, Ex. J. The portion of the misbehavior report that was sent to Pickens did not identify plaintiff by name as the complaining party. However, that fact could easily be discerned based on the allegations in the report that detailed the alleged extortion of an inmate through threats of physical harm to him and his family. See id.

On October 30 and 31, 2001, plaintiff wrote letters to his correction counselor requesting assistance because of his fear that Pickens would assault him in retaliation for his lodging the extortion complaint. Plaintiff also claimed that several inmates, including an inmate by the name of Evans, had threatened him with death and other assault for being "a snitch." Dkt. #12, Exs. K and L.

At the time of the incident, plaintiff was housed in a cell across from Pickens. Dkt. #12, Exs. D and L. However, on October 31, plaintiff was moved away from Pickens and housed in different gallery on the D Block. Plaintiff thereafter refused to testify against Pickens at the misbehavior hearing on the alleged extortion. The record does not show whether Pickens was found guilty at that hearing. On November 9, 2001, the day the hearing closed, plaintiff was again transferred to another cell in a third gallery on the D Block, and orders were issued that he take recreation alone with the adjoining recreation pen empty. Dkt. #12, ¶ 19.*fn3

On December 6, 2001, plaintiff filed this complaint alleging that Sgt. Morse identified him as a snitch to Pickens and failed to take steps to protect him. As a result, he claimed that on October 29, 2001, another inmate assaulted him in the recreation yard "with spit" and "sharp objects." Plaintiff also claimed that he was forced to stay in his cell all day for fear of his safety. Plaintiff also informed Superintendent McGinnis on October 21, 22, 28, and 29, and November 5, 2001, of his concern for his safety, and of what plaintiff believed to be improper conduct by Sgt. Morse. Plaintiff alleged that McGinnis failed to take any corrective action, despite the ...

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