The opinion of the court was delivered by: David G. Larimer United States District Judge
Plaintiff, Harold J. Shell, Jr. ("Shell"), appearing pro se, commenced this action under 42 U.S.C. § 1983. Plaintiff, who at the time of the filing of the complaint was an inmate in the custody of the New York State Department of Correctional Services ("DOCS"), alleges various civil rights claims against several individuals employed by DOCS.*fn1
By Decision and Order entered April 21, 2005, 365 F.Supp.2d 362, this Court granted in part and denied in part plaintiff's motion to amend his complaint. The Court permitted the following claims to go forward: plaintiff's claim against defendant James Stinson, who was the superintendent of Great Meadow Correctional Facility ("Great Meadow"), alleging that plaintiff's constitutional right of access to the courts was violated by the inadequacy of the inmate law library at Great Meadow; plaintiff's failure-to-protect claims against defendants Glenn Goord, Lucien LeClaire, Joyce Carver, Patrick Smith, Victor Herbert, David Caryl, G. Strubel and Richard Simmons regarding a November 28, 2000 incident at Attica Correctional Facility ("Attica"); and a retaliatory-assault claim against defendants Nicholas Brzezniak, Lee Franklin, Bruce Blenker, John Kolacz, Richard Simmons, Joseph Turello, Craig Balcer, and Timothy Pixley, arising out of the November 28, 2000 incident at Attica. 365 F.Supp.2d at 380.*fn2
Defendants have now moved for summary judgment dismissing two of those three claims. Defendant Stinson moves for summary judgment as to plaintiff's claim that Stinson denied Shell's access to the courts. Defendants Goord, LeClaire, Carver, Smith, Herbert, Caryl, Strubel and Simmons all move to dismiss the claim charging them with failing to protect Shell in connection with the November 28, 2000 incident at Attica. Defendants do not move at this time with respect to the other claim, alleging the use of excessive force against plaintiff by eight defendants on November 28, 2000.
Defendants have filed affidavits in support of their motion, as well as a memorandum of law, and plaintiff has submitted an affidavit in opposition to the motion (Dkt. #76). Having reviewed both sides' submissions, the Court grants defendants' motion for summary judgment, and the complaint is dismissed on the law library and failure-to-protect claims, as set forth in the Conclusion of this Decision and Order.
I. Alleged Denial of Access to the Courts
Shell's claim against Superintendent Stinson relates to an Article 78 proceeding that was eventually dismissed. That proceeding related to a misbehavior report arising out of a 1997 incident at Attica in which plaintiff claimed he was assaulted by several guards. Shell's petition was returned to him several times because it was in improper form and had not been verified. Eventually the petition was dismissed by the state court as untimely.
In this action, plaintiff claims that his difficulties in prosecuting the Article 78 petition stemmed in part from various policies concerning the law library at Great Meadow, such as limitations on the number of books that inmates could borrow at one time, the hours when the library was open, etc. At his deposition in this action, however, Shell conceded that he never had any direct contact with Stinson about these matters, and there is no evidence that he ever brought his concerns about these policies to Stinson's attention. Dkt. #67 Ex. B at 94, 110.
Stinson now moves for summary judgment dismissing this claim based on his lack of personal involvement in the alleged constitutional violation. The motion is granted.
A plaintiff asserting a § 1983 claim against a supervisory official in his individual capacity must allege that the supervisor was personally involved in the alleged constitutional deprivation. Johnson v. Newburgh Enlarged Sch. Dist., 239 F.3d 246, 254 (2d Cir. 2001); Gaston v. Coughlin, 249 F.3d 156, 164 (2d Cir. 2001). That requirement may be satisfied by alleging facts showing 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 supervising subordinates who committed the wrongful acts; or (5) the defendant exhibited deliberated indifference to others' rights by failing to act on information indicated that constitutional 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).
Plaintiff has demonstrated no such facts here. In fact, in his affidavit in response to defendants' motion, plaintiff does not even mention Stinson. See Dkt. #76.
The only evidence concerning Stinson, then, is that he was the facility superintendent, which is not enough to establish his liability under § 1983. See Reynolds v. Giuliani, 506 F.3d 183, 191 (2d Cir. 2007) (noting that there is no respondeat superior liability under § 1983). There is no evidence that Stinson knew of the alleged problems with the law library, that he failed to remedy a known ...