United States District Court, W.D. New York
June 22, 2005.
SHAWN GREEN, Plaintiff,
RICHARD MORSE and ALAN HAGER, Defendants.
The opinion of the court was delivered by: CHARLES SIRAGUSA, District Judge
DECISION & ORDER
Plaintiff Shawn Green, presently an inmate at Attica
Correctional Facility, filed a pro se action, pursuant to
42 U.S.C. § 1983, alleging that while he was incarcerated at
Southport Correctional Facility ("Southport") defendants violated
his constitutional rights, as guaranteed by the Eighth Amendment
to the United States Constitution, by subjecting him to the use
of excessive force through the utilization of chemical agents
during his cell extraction. Plaintiff alleges that the use of these chemical
agents caused him physical and mental injuries. The case is now
before the Court on defendants' motion for judgment on the
pleadings pursuant to Federal Rule of Civil Procedure 12(c). For
the reasons stated below, defendants' motion (# 22), is denied
with respect to defendants in their individual capacities, but
granted with respect to defendants in their official capacities.
In the original complaint, filed on November 6, 2000, plaintiff
alleged that Richard Morse ("Morse") and Alan Hager ("Hager"),
without authority, used chemical agents (tear gas) to punish him.
(Compl. at 3.)*fn1 Defendants filed a Rule 12(c) motion for
judgment on the pleadings on August 30, 2001 (#22). On June 2,
2004, plaintiff filed a Rule 56 motion for summary judgment
(#33). On June 14, 2004, plaintiff filed a motion to amend his
complaint (#37). The Court issued two orders on August 12, 2004,
that stayed plaintiff's motion for summary judgment and his
motion to amend complaint until defendants' motion for judgment
on the pleadings had been resolved (#39 & 40).
STANDARDS OF LAW
Motion to Dismiss
A motion for judgment on the pleadings is appropriate "where
material facts are undisputed and where a judgment on the merits
is possible merely by considering the contents of the pleadings."
Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 642 (2d
Cir. 1988). On a Rule 12(c) motion, a court must apply the same
standard as it would for a motion to dismiss pursuant to Rule 12(b)(6). Nelson v.
Michalko, 35 F. Supp. 2d 289 (W.D.N.Y. 1999).
"In considering a motion to dismiss for failure to state a
claim under FED. R. CIV. P. 12(b)(6), a district court must limit
itself to facts stated in the complaint or in documents attached
to the complaint as exhibits or incorporated in the complaint by
reference." Kramer v. Time Warner, Inc., 937 F.2d 767, 773 (2d
Cir. 1991).The court must view the complaint, and draw all
reasonable inferences, in the light most favorable to the
non-moving party. Id.; see also 2 MOORE'S FEDERAL PRACTICE, §
12.34[b] (Matthew Bender 3d ed.) (court must accept
plaintiff's factual allegations as true). Under modern rules of
pleading, a plaintiff need only provide "a short and plain
statement of the claim showing that the pleader is entitled to
relief," FED. R. CIV. P. 8(a)(2), and "all pleadings shall be so
construed as to do substantial justice," FED. R. CIV. P. 8(f).
Moreover in regards to mental state, Rule 9(b) states, "[m]alice,
intent, knowledge, and other condition of mind of a person may be
averred generally." On a Rule 12(b)(6) motion, the issue before
the Court "is not whether a plaintiff will ultimately prevail,
but whether the claimant is entitled to offer evidence to support
the claim." Villager Pond, Inc. v. Town of Darien, 56 F.3d 375,
378 (2d Cir. 1995).
Finally, while the plaintiff need not set out in
detail the facts upon which he bases a claim, he must
provide the "defendant fair notice of the nature of
the claim and the grounds upon which it rests."
Washington v. James, 782 F.2d 1134, 1140 (2d Cir.
1986) (quoting Conley v. Gibson, 355 U.S. 41, 47,
78 S. Ct. 99, 103, 2 L. Ed. 2d 80 (1957)). Where the
allegations are so baldly conclusory that they fail
to give notice of the basic events and circumstances
of which the plaintiff complains, they are
meaningless as a practical matter and legally
insufficient to state a claim. Barr v. Abrams,
810 F.2d 358, 363 (2d Cir. 1987) (citing Ostrer v.
Aronwald, 567 F.2d 551, 553 (2d Cir. 1977); Koch v. Yunich, 533 F.2d 80, 85 (2d Cir. 1976);
Powell v. Jarvis, 460 F.2d 551, 553 (2d Cir.
Parisi v. Coca-Cola Bottling Co., 995 F. Supp. 298, 300 301
(E.D.N.Y. 1998). Additionally, since plaintiff is proceeding pro
se, the Court is mindful that:
A pro se complaint should not be dismissed unless
"it appears beyond doubt that the plaintiff[s] can
prove no set of facts in support of [their] claims
which would entitle [them] to relief." Conley v.
Gibson, 355 U.S. 41, 45-46 (1957). When considering
motions to dismiss a pro se complaint such as this,
"courts must construe [the complaint] broadly, and
interpret [it] to raise the strongest arguments that
[it] suggests." Cruz v. Gomez, 202 F.3d 593, 597
(2d Cir. 2000) (internal quotation marks omitted).
This is especially true when dealing with pro se
complaints alleging civil rights violations. See
Weinstein v. Albright, 261 F.3d 127, 132 (2d Cir.
2001). Accordingly, the plaintiffs' allegations in
this case must be read so as to "raise the strongest
arguments that they suggest." McPherson v. Coombe,
174 F.3d 276, 280 (2d Cir. 1999) (internal quotation
Weixel v. Bd. of Educ. of N.Y., 287 F.3d 138
, 145-146 (2d Cir.
Generally, in order to state a claim under 42 U.S.C. § 1983, a
plaintiff must allege (1) that the challenged conduct was
attributable at least in part to a person acting under color of
state law, and (2) that such conduct deprived the plaintiff of a
right, privilege, or immunity secured by the Constitution or laws
of the United States. Dwares v. City of New York, 985 F.2d 94,
98 (2d Cir. 1993). Here, plaintiff has clearly alleged that
defendants were acting under color of state law, and his
Eighth Amendment rights were violated.
In specifically assessing an Eighth Amendment claim relating to
the use of excessive force, the district court must consider both
the subjective and objective components of the alleged violation.
Davidson v. Flynn, 32 F.3d 27, 29 (2d Cir. 1994). The objective
component considers the "seriousness of the injury." Id. In
that regard, the Eighth Amendment "excludes from constitutional recognition de minimis
uses of physical force, provided that the use of force is not of
a sort repugnant to the conscience of mankind." Hudson v.
McMillian, 503 U.S. 1, 9-10 (1992). The subjective component
addresses whether the defendant possessed a "wanton" state of
mind while engaging in the use of force. Id., Hudson,
503 U.S. at 6-7. "Punishments `incompatible with the evolving standards of
decency that mark the progress of a maturing society' or
`involv[ing] the unnecessary and wanton infliction of pain' are
`repugnant to the Eighth Amendment.'" Hudson, 503 U.S. at 10
(quoting Estelle v. Gamble, 429 U.S. 97, 102-103 (1976)).
As to the use of excessive force, the Second Circuit Court
provided further explanation of what constitutes a violation of a
prisoner's Eighth Amendment rights in Griffin v. Crippen:
[T]he malicious use of force to cause harm
constitutes an Eighth Amendment violation per se
whether or not significant injury is evident. This
result follows because when prison officials
maliciously and sadistically use force to cause harm,
contemporary standards of decency always are
violated. Nevertheless, a de minimis use of force
will rarely suffice to state a constitutional claim.
Not every push or shove, even if it may later seem
unnecessary in the peace of a judge's chambers,
violates a prisoner's constitutional rights.
Griffin v. Crippen 193 F.3d 89
, 91 (2d Cir. 1999) (citations
and internal quotations omitted). Thus, even if the harm
inflicted is not significant, if plaintiff can show malicious
intent then the objective prong will be almost always be
Defendants seek dismissal of plaintiff's Eighth Amendment claim
of excessive force based upon what plaintiff maintains was the
unauthorized and improper use of chemical agents against him.
Applying the Eighth Amendment framework discussed above, the Court first concludes that plaintiff has met the objective
requirement. In this regard, plaintiff has alleged that, because
of defendants' use of tear gas, he suffered vision impairment,
aggravated carpal tunnel syndrome, several forms of warts and
aggravated sinus problems that resulted in surgery. Moreover,
plaintiff has alleged that as a result of use of tear gas, he
experienced post traumatic stress disorder, manifested in
flashbacks of event, difficulty sleeping, outbursts of anger and
difficulty concentrating. (Green Decl. at 2.) Plaintiff clearly
has alleged more than a de minimis injury. Griffin,
193 F.3d at 91.
Second, the Court determines that plaintiff has also met the
subjective requirement, relating to defendants' state of mind, to
establish an Eighth Amendment violation Plaintiff has stated,
"defendants sought and authorized the use of tear gas maliciously
and sadistically for the very purpose of causing harm." (Pl.'s
Mem. of Law at 2.) As conclusory as plaintiff's claim of wanton
mental state may be, this is all that is required under Rule
8(a)(2) and 9(b). See Phelps v. Kapnolas, 308 F.3d 180 (2d Cir.
2002). To require more than a general averment of mental state
"amount[s] to a heightened pleading standard and is unwarranted
under FRCP 8(a)(2)." Id. at 186.
Accordingly, since plaintiff has sufficiently alleged facts to
satisfy both the objective and subjective prongs of an
Eighth Amendment violation under 42 U.S.C. § 1983, defendants'
application for judgment on the pleadings case is denied as to
defendants in their individual capacities. However, judgment is
granted to the defendants in their official capacities. In this
regard, the Eleventh Amendment bars federal courts from
exercising subject matter jurisdiction over claims against States
absent their consent to such suit or an express statutory waiver
of immunity. Pennhurst State School & Hospital v. Halderman,
465 U.S. 89, 98-100 (1984). It is well settled that states are
not "persons" under § 1983, and, thus, Eleventh Amendment immunity is not abrogated by that
statute. Will v. Michigan Dept. of State Police, 491 U.S. 58,
65-66 (1989). Furthermore, the Eleventh Amendment bar extends to
agencies and officials sued in their official capacities.
Kentucky v. Graham, 473 U.S. 159, 166 (1985). Plaintiff may
therefore sue the defendants in their official capacity only if
they consent to be sued. Pennhurst, 465 U.S. 89 at 199-201.
Since none have consented, the Eleventh Amendment bars
plaintiff's suit against the defendants in their official
Defendants' motion for judgment on the pleadings (# 22) is
denied with respect to defendants' individual capacities; but is
granted with respect to defendants in their official capacities.
IT IS SO ORDERED.