The opinion of the court was delivered by: David G. Larimer United States District Judge
Plaintiff Koran Wilkins ("Wilkins") commenced this action pursuant to 42 U.S.C. § 1983. Plaintiff, a former inmate in the custody of the New York State Department of Correctional Services ("DOCS'), alleges that defendants Superintendent Thomas Poole, Commissioner Glenn Goord, Department Superintendent David Napoli, Head Counselor Frank Rhodes, Sergeant Thomas Happell, Lieutenant James Minde, Captain Grafton Robinson, and Corrections Counselor Roberto Belmonte, all of whom at all relevant times were officials or employees of DOCS, violated his Eighth Amendment constitutional rights by failing to protect him from a gang-related attack at Five Points Correctional Facility ("Five Points") on May 9, 2005. Specifically, Wilkins alleges that despite having warned defendants on multiple occasions that protective custody was needed to protect him from repeated threats of violence by specific prison gang members, defendants refused to extend his initial grant of protective custody, failed to adequately staff housing units and common areas to prevent an attack, and failed to implement weapons control policies sufficient to prevent the attack.
Defendants have moved to dismiss the equal protection and failure-to-protect claims pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Defendants also ask the Court to consider whether plaintiff's counsel is subject to disqualification based upon the potential that counsel will be called as a necessary witness at trial. For the reasons set forth below, defendants' motion to dismiss Wilkins' claims against the supervisory defendants, as well as his claims concerning staffing and weapons policies, is granted, and defendants' request for disqualification of plaintiff's counsel is denied.
In early 2005, Wilkins was transferred to Five Points, and placed in the general population. In early March 2005, Wilkins began to receive threats from certain members of the "Bloods" gang who were incarcerated with him, based upon an earlier altercation between Wilkins and a Bloods member, known as "Hollywood," who had been transferred to Five Points in late February and was assigned to Ten Block. On March 4, 2005, Wilkins notified staff that he feared for his safety. He was moved to Nine Block, but refused to leave his cell for fear of attack. On March 10, 2005, Wilkins made a written request for protective custody, which was granted.
On March 15, 2005, defendant Lieutenant Minde submitted a memorandum to his superior, Lieutenant Byrne, noting that Wilkins believed he was "being plotted against," and identifying Hollywood as the source of the threats. Minde did not, however, recommend additional protective custody for Wilkins. (Dkt. #1 at ¶22).
On March 17, 2005, Wilkins' counsel, at that time representing him in a criminal appeal, wrote a letter to defendant Head Counselor Rhodes, asking that Wilkins be permitted to remain in protected custody, based upon the threats to his safety posed by the Bloods.
That request was evidently denied, and Wilkins was ordered to return to the general population on March 21, 2005. Wilkins refused, stating he feared he would be "cut by the Bloods" if he reported to Eight Block as instructed. Wilkins asked to speak with a counselor, and in an interview with defendant Corrections Counselor Belmonte, described the threats against him. Wilkins alleges that Belmonte replied that Wilkins could not return to protective custody unless "something . . . happen[ed] to him." (Dkt. #1 at ¶25).
Wilkins' refusal to return to the general population resulted in discipline for insubordination. On March 21, 2005, defendant Sergeant Happell indicated that Wilkins stated he thought he "would be cut by the Bloods" if he was forced to reside on Eight Block. (Dkt. #1 at ¶26).
On March 27 and 29, 2005, Wilkins attended a disciplinary hearing on the charge of failure to obey the order that he return to the general population. At the hearing, which was conducted by defendant Captain Robinson, Wilkins described the threats against him and identified two known Bloods who resided on Eight Block, whom he feared Hollywood, located in Ten Block, would order to attack him. At the conclusion of the hearing, Captain Robinson denied Wilkins' request for protective custody on the grounds that he was to be returned to Eleven Block instead of Eight Block, and would not have occasion to "comingle" with the Eight Block inmates whom he had identified. (Dkt. #1 at ¶30).
Believing that he might still encounter the Eight Block inmates once he returned to general population, Wilkins again refused to return, and was sent to solitary confinement until May 4, 2005. While there, he again interviewed with Counselor Belmonte and repeated the threats against him.
Upon his release from solitary confinement, Wilkins was moved to Eight Block, where the Bloods he had previously identified were residing. On May 9, 2005, as Wilkins was returning to his cell from the yard (a time known as "go-back time," when Wilkins alleges inmates are particularly vulnerable due to a lack of corrections officers in the yard and on the block), he was approached from behind by another inmate and slashed across the face with a shank. The attack was observed by a corrections officer, and Wilkins was sent to the medical unit, where he received 23 stitches in his face to close a four-inch gash. Corrections officers later found the shank, fashioned from a serrated tin can lid with a paper handle, in the Eight Block yard. After an investigation by Five Points, an inmate by the name of Hall, a known Bloods member who resided on Eight Block, was found to be the perpetrator.
After a three day stay in the medical unit, Wilkins was placed in protective custody. On or about July 29, 2005, Wilkins was transferred to another facility, and was subsequently paroled.
Wilkins alleges that each of the defendants showed deliberate indifference to the threats against him, and thus violated his constitutional rights by failing to move him to protective custody. He also alleges that the defendants failed to protect him when they assigned him to Eight Block following his solitary confinement, even though it was widely known that the threat to Wilkins' safety had been made by two Eight Block inmates. Wilkins further alleges that defendants showed deliberate indifference to his constitutional rights by failing to regularly search ...