UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK
December 16, 2011
MICHAEL PERKINS, PLAINTIFF
DAVID F. NAPOLI, ET AL., DEFENDANTS
The opinion of the court was delivered by: Charles J. Siragusa United States District Judge
DECISION AND ORDER
Plaintiff, a prison inmate in the custody of the New York State
Department of Corrections and Community Supervision ("DOCCS"), is
suing pursuant to 42 U.S.C. § 1983, alleging that Defendants violated
his federal constitutional rights. Now before the Court are three
applications: 1) a motion for summary judgment (Docket No. 62) by
defendant David Napoli ("Napoli"); 2) a motion for preliminary
injunctive relief [#80] by Plaintiff; and 3) a motion to dismiss [#85]
by all Defendants. For the reasons that follow, Napoli's motion is
granted, Plaintiff's motion is denied, and Defendants' motion is
granted in part and denied in part, to the extent that Plaintiff's
in forma pauperis status is revoked and he must
pay the filing fee within thirty days or this action will be
At all relevant times, Plaintiff was confined at Southport Correctional Facility ("Southport"). At all relevant times, Defendants were employed by DOCCS at Southport. Specifically, Napoli was Superintendent at Southport, Daniel Chapman ("Chapman") was a Corrections Sergeant, and Michael Burgett ("Burgett"), James Cleveland ("Cleveland"), Steve Ford ("Ford"), and David Tadder ("Tadder") were Corrections Officers.
The Amended Complaint [#3] alleges the following facts. On March 9, 2009, Plaintiff was in a holding cell, handcuffed in front with a waist chain, when Tadder "pulled the plaintiff out" and punched him in the face. Plaintiff alleges that he was knocked to the floor, and that Tadder, Burgett, Cleveland, Ford, and Chapman then kicked and punched him. Plaintiff alleges that the officers put him back in the holding cell, and returned ten minutes later to "beat [him] some more." Amended Complaint p. 5.
Plaintiff alleges that the attack on March 9, 2009 was the third time that he had been assaulted by staff at Southport. In that regard, Plaintiff claims that he was assaulted on July 5, 2008 and August 20, 2008, and then again on March 9, 2009. Plaintiff is suing Napoli, on the grounds that Napoli created a policy or custom which permitted staff to assault inmates.
Other documents in the record, including Plaintiff's original Complaint, *fn1 provide some additional details to his allegations. Plaintiff maintains that on March 9, 2009, he and another inmate, Malik, were in the holding cells in Southport's dental treatment area, awaiting transport back to their cells. Plaintiff states that officers subsequently began escorting him and Malik back to their cells, when Burgett and Tadder aggressively approached Malik. Plaintiff indicates that he told the officers that they should not approach Malik in that manner, since Malik had not done anything wrong. *fn2
Plaintiff states that the escort officers took Malik back to his cell, but Tadder directed that Plaintiff be returned to the dental area holding cell. A short time later, Plaintiff contends, the officers removed him from the holding cell and assaulted him.
Defendants counter that on March 9, 2009, Plaintiff was backing
out of the holding cell when he quickly moved and attempted to assault
Burgett, who then, along with other officers, used appropriate force
to subdue Plaintiff. They further contend that Plaintiff refused their
orders to stop struggling as they were attempting to control him.
Based on that version of events, Burgett issued Plaintiff a
Misbehavior Report, charging him with violent conduct, assault on
staff, interference with an employee, and refusing a direct order.
See , Rule 26 Disclosures [#11], Ex. A. At a
subsequent disciplinary hearing, Plaintiff was found guilty of all
four charges. Id .
On June 12, 2009, Plaintiff commenced this action and applied for
permission to proceed in forma pauperis .
Consequently, the Court was required to review his pleadings pursuant
to 28 U.S.C. § § 1915 & 1915A.
At that time, the Court was unaware that both Plaintiff's original
Complaint [#1] and his Amended Complaint [#3] misstated the number of
previous prisoner lawsuits that he had filed. *fn3
Specifically, Plaintiff listed only one such lawsuit, 08-CV-6248 CJS, which was
pending in this Court, while omitting several other lawsuits, which
are discussed below. Plaintiff requested permission to proceed
in forma pauperis because he purportedly had no funds
whatsoever. Pl. Motion to Proceed In Forma Pauperis [#2]. Although the
Amended Complaint alleges that Plaintiff was assaulted on three
occasions at Southport, with the most recent assault having occurred
three months earlier, in March 2009, it does not allege that Plaintiff
is in any imminent danger of physical harm. On July 14, 2009, the
Court granted Plaintiff's application to proceed in forma
pauperis . See , Order (Docket No. [#6]).
Following a period of pre-trial discovery, on June 23, 2010,
Napoli filed the subject motion for summary judgment [#62].
*fn4 In support of the application, Napoli
maintains that he cannot be liable for the alleged assault on March 9,
2009, because he was not personally involved in the alleged
assault. *fn5 Napoli states that he was not
present during the alleged assault, that Plaintiff had never been
threatened by any of the Defendants prior to that day,
*fn6 and that Plaintiff had never claimed that he
was in danger of being harmed by the Defendants. *fn7
See , Napoli Memo of Law [#66].
Napoli, therefore, contends that Plaintiff cannot show that he was
deliberately indifferent to
Plaintiff filed a response [#72] to Napoli's motion. The response is largely devoted to pointing out alleged inconsistencies in reports filed by the corrections officers involved in the March 9 th incident. As for Napoli, Plaintiff indicates that Napoli violated Plaintiff's constitutional rights by "allow[ing] his subordinates to assault the plaintiff on several different occasions, and then allowing additional subordinates . . . to conduct an evasive investigation into the complaint made by the plaintiff [concerning the incident on March 9, 2009]." Pl. Response [#72] at p. 15. Plaintiff indicates that inconsistencies in the reports that the corrections officers prepared following the March 9, 2009 incident should have alerted Napoli to the fact that the officers were lying. Id . at 17. Plaintiff further contends that Napoli generally allowed his subordinates to violate the rights of inmates. Pl. Dep. at 82-83
On January 12, 2011, Plaintiff filed the subject motion for injunctive relief [#80]. At that time, Plaintiff was housed at Upstate Correctional Facility ("Upstate"). Plaintiff asked the Court to order Upstate to provide him with "extra legal supplies," because he had multiple legal actions pending. Specifically, Plaintiff requested an Order directing officials at Upstate "to provide the Plaintiff with the adequate amount of needed legal materials to continue to prosecute the two pending civil litigations entitled Perkins v. Napoli, et al. , 08-CV-6248 and Perkins v. Napoli, et al. , 09-CV-6302." Motion for Injunctive Relief [#80] at p.3. Plaintiff indicated that Kenneth E. Wilson, Jr. ("Wilson"), who is apparently the "law library supervisor" at Upstate, had denied him "the needed extra legal supplies." Id . at 2. However, Plaintiff did not indicate to what legal supplies he was referring, or why he was entitled to them.
On April 22, 2011, Defendants filed the subject motion to dismiss [#85] the entire action on procedural grounds. Specifically, Defendants indicate that the Court should revoke Plaintiff's in forma pauperis status pursuant to 28 U.S.C. § 1915(g), because prior to the date that Plaintiff commenced this action, he had at least three other actions dismissed as being frivolous, malicious, or failing to state a claim. In that regard, the relevant section states:
In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury. 28 U.S.C.A. § 1915(g) (West 2011). For support of the application, Defendants cite an order dated August 18, 2010, by the Honorable Lawrence E. Kahn, United States District Judge for the Northern District of New York in the case Perkins v. Rock, et al ., 9:10-CV-0375 (LEK/RFT), which is attached to Defendants' motion. In that case, Judge Kahn found that the "three strikes" provision in § 1915(g) barred Plaintiff from proceeding in forma pauperis . In doing so, Judge Kahn relied upon a decision of the Honorable Glenn Suddaby, United States District Judge for the Northern District, which indicated that Plaintiff had at least three "strikes" as of September 18, 2008. See, Perkins v. Rock decision at p. 4 ( quoting Perkins v. Rock , 9:10-CV-0414 (GTS/DEP), Docket No. 9, (N.D.N.Y. Jul. 26, 2010). Significantly, one of the strikes referred to by Judge Suddaby was issued by this Court, in the case of Perkins v. Doe , 08-CV-6257 CJS (Fe), Decision and Order dated September 8, 2008. Two other strike dismissals issued prior to that decision were Perkins v. NYC Dept. of Corrections , 94-CV-1613, Judgment (S.D.N.Y. Mar. 10, 1994) and Perkins v. Morgenthau , 94-CV-4553, Judgment (S.D.N.Y. Jun. 21, 1994).
In response to the motion to dismiss, Plaintiff admits that the two above-referenced dismissals from the Southern District of New York are "strikes" within the meaning of 28 U.S.C. § 1915(g). However, he contends that this Court's dismissal in Perkins v. Doe was not a strike, because that action was dismissed for lack of jurisdiction. Plaintiff is mistaken on that point, though, since the Court dismissed that action for failure to state a claim, inasmuch as Plaintiff had attempted to sue private individuals under Section 1983. See, Perkins v. Doe , 08-CV-6257 CJS (Fe), decision at pp. 2-3. It is true that later in the Court's decision, after finding that Plaintiff had failed to state a claim, this Court went on to point out that even if Plaintiff were to attempt to re-plead his claim as a state-law breach of contract action, the Court would lack subject-matter jurisdiction over the action. Id . Nevertheless, the actual dismissal was based the Complaint's failure to state a claim upon which relief could be granted.
Plaintiff's Motion For Preliminary Injunctive Relief At the outset, the Court finds that Plaintiff's application for injunctive relief [#80] must be denied. The standard to be applied when considering an application for preliminary injunctive relief is well settled:
A party seeking a preliminary injunction ordinarily must show: (1) a likelihood of irreparable harm in the absence of the injunction; and (2) either a likelihood of success on the merits or sufficiently serious questions going to the merits to make them a fair ground for litigation, with a balance of hardships tipping decidedly in the movant's favor. When the movant seeks a 'mandatory' injunction-that is, as in this case, an injunction that will alter rather than maintain the status quo- [he] must meet the more rigorous standard of demonstrating a 'clear' or 'substantial' likelihood of success on the merits.
Doninger v. Niehoff , 527 F.3d 41, 47 (2d Cir. 2008) (citations omitted). Violation of a constitutional right is considered "irreparable harm." Jolly v. Coughlin , 76 F.3d 468, 482 (2d Cir.1996) ("The district court . . . properly relied on the presumption of irreparable injury that flows from a violation of constitutional rights."); see also , Charette v. Town of Oyster Bay , 159 F.3d 749, 755 (2d Cir.1998) ("In the context of a motion for a preliminary injunction, violations of First Amendment rights are commonly considered irreparable injuries.") (citation and internal quotation marks omitted). Moreover, "[t]o prevail on a motion for preliminary injunctive relief, the moving party must establish a relationship between the injury claimed in the motion and the conduct giving rise to the complaint." Candelaria v. Baker , No. 00-CV-0912E(SR), 2006 WL 618576 at *3 (W.D.N.Y. Mar. 10, 2006) (citation omitted); accord, Taylor v. Rowland , No. 3:02CV229(DJS)(TPS), 2004 W L 231453 at *2-3 (D.Conn. Feb. 2, 2004).
Here, Plaintiff asks the Court to order officials at Upstate to provide him with unspecified "extra legal supplies," so that he can continue to prosecute multiple lawsuits. More specifically, Plaintiff indicated that because he was being denied "extra legal supplies," he would not be able to file a timely reply to defense counsel's response [#76] to a discovery motion that Plaintiff had filed, which reply was due by February 8, 2011. Plaintiff further indicated that such denial of "extra legal supplies" might prevent him from filing a motion for sanctions against Defendants. The Court observes, however, that on January 12, 2011, Plaintiff filed a motion for sanctions against Defendants, for alleged discovery violations, which the Honorable Jonathan W. Feldman, United States Magistrate Judge, addressed in an Order [#89] issued on September 23, 2011. Accordingly, it does not appear that Plaintiff was hindered in prosecuting this action by a lack of legal supplies. In any event, Plaintiff has not made the requisite showing required to obtain injunctive relief, and his application [#80] is denied.
Napoli's Motion For Summary Judgment
Next, the Court will address Napoli's motion for summary judgment. The standard for granting summary judgment is well established. Summary judgment may not be granted unless "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FRCP 56(a). A party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists. See, Adickes v. S.H. Kress & Co ., 398 U.S. 144, 157 (1970). "[T]he movant must make a prima facie showing that the standard for obtaining summary judgment has been satisfied." 11 M OORE' S F EDERAL P RACTICE, § 56.11[a] (Matthew Bender 3d ed.). "In moving for summary judgment against a party who will bear the ultimate burden of proof at trial, the movant may satisfy this burden by pointing to an absence of evidence to support an essential element of the nonmoving party's claim." Gummo v. Village of Depew , 75 F.3d 98, 107 (2d Cir. 1996) ( citing Celotex Corp. v. Catrett , 477 U.S. 317, 322-23 (1986)), cert denied , 517 U.S. 1190 (1996).
The underlying facts contained in affidavits, attached exhibits,
and depositions, must be viewed in the light most favorable to the
non-moving party. U.S. v. Diebold,
Inc ., 369 U.S. 654, 655 (1962). Summary judgment is
appropriate only where, "after drawing all reasonable inferences in
favor of the party against whom summary judgment is sought, no
reasonable trier of fact could find in favor of the non-moving party."
Leon v. Murphy , 988 F.2d 303, 308 (2d Cir.1993).
Moreover, since Plaintiff is proceeding pro se ,
the Court is required to construe his submissions liberally, "to raise
the strongest arguments that they suggest." Burgos v.
Hopkins , 14 F.3d 787, 790 (2d Cir.1994).
Plaintiff is suing pursuant to 42 U.S.C. § 1983, and the legal principles generally applicable to such claims are well settled:
In order to establish individual liability under § 1983, a plaintiff must show
(a) that the defendant is a "person" acting "under the color of state law," and (b) that the defendant caused the plaintiff to be deprived of a federal right. See, e.g., Monroe v. Pape , 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). Additionally, "[i]n this Circuit personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983." McKinnon v. Patterson , 568 F.2d 930, 934 (2d Cir.1977).
An individual cannot be held liable for damages under § 1983 "merely because he held a high position of authority," but can be held liable if he was personally involved in the alleged deprivation. See Black v. Coughlin , 76 F.3d 72, 74 (2d Cir.1996). Personal involvement can 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 supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference ... by failing to act on information indicating that unconstitutional acts were occurring. See Colon v. Coughlin , 58 F.3d 865, 873 (2d Cir.1995).
Back v. Hastings On Hudson Union Free Sch. Dist. , 365
F.3d 107, 122, 127 (2d Cir.
2004); see also, Platt v. Incorporated Village of
Southampton , 391 Fed.Appx. 62, 2010 WL 3393738 at *3 (2d
Cir. Aug. 30, 2010) ("A supervisory official may be personally liable
if he or she has actual or constructive notice of unconstitutional
practices and demonstrates gross negligence or deliberate indifference
by failing to act. Supervisory liability may be imposed where an
official demonstrates gross negligence or deliberate indifference to
constitutional rights by failing to act on information indicating that
unconstitutional practices are taking place. We cannot say, however,
that an allegation that a supervisory official ignored a letter
protesting past unconstitutional conduct is, without more, sufficient
to state a claim that the official was 'personally involved' in the
unconstitutional conduct.") (citations and internal quotation marks
omitted). *fn8 It is well settled that "mere
linkage in the prison chain of command is insufficient to implicate .
. . a prison superintendent in a § 1983 claim."
Richardson v. Goord , 347 F.3d 431, 435 (2d Cir.
Here, Napoli contends that Plaintiff cannot demonstrate that he was personally involved in any alleged constitutional violation. The Court agrees. In that regard, it is undisputed that Plaintiff had no problems with any of the corrections-officer Defendants prior to March 9, 2009, the day that he was allegedly assaulted by them. It is also therefore undisputed that Plaintiff never alerted Napoli that he was in danger from any of the corrections-officer Defendants. Accordingly, there is no merit to the idea that Napoli failed to protect Plaintiff from the alleged assault.
Plaintiff nevertheless contends that Napoli is liable in his
supervisory capacity, because Plaintiff was assaulted on two prior
occasions, many months earlier, by other Southport employees.
Specifically, Plaintiff alleges that he was assaulted on July 5,
2008, *fn9 August 20, 2008, *fn10
and that Napoli created a policy or custom which
permitted staff to assault inmates. However, Plaintiff's assertion
that such a policy existed, and that Napoli created it or allowed it
to continue, are conclusory. *fn11
More specifically, apart
from his own conclusory statements, Plaintiff has not presented
any evidence that Napoli had a policy to allow corrections officers to
Plaintiff alternatively argues that Napoli was grossly negligent in supervising his staff, or was deliberately indifferent to Plaintiff's safety, because he failed to act on information that constitutional violations were occurring. In that regard, Plaintiff apparently relies on letters that he wrote to Napoli prior to March 9, 2009, and on the fact that Plaintiff orally complained to Napoli on July 7, 2008. See , footnote 9 above . However, any letters that Plaintiff may have written to Napoli are not in the record, and they therefore cannot form the basis for personal involvement by Napoli. Similarly, Plaintiff's alleged oral complaint to Napoli on July 7, 2008, in which Plaintiff purportedly complained that he had been assaulted by staff two days earlier, is also insufficient to establish Napoli's personal involvement in the March 9, 2009 incident. *fn12
Plaintiff further contends that Napoli violated his
constitutional rights by failing to recognize and act upon certain
alleged inconsistencies in reports written by corrections officers
after the alleged March 2009 assault. On this
point, Plaintiff states that Napoli allowed his subordinates to submit
bogus to-from reports which are based on hearsay; inconsistent
statements of alleged actions and conducts committed during the
alleged incident on the 9 th day of
March 2009; false
statements of action and conduct committed during the alleged
incident of the 9 th day of March
2009; fictitious and inconsistent statements of alleged allegations
without any substantiality of facts; and [allowed his subordinates to]
conduct evasive questions of inquiry into the facts of the alleged
actions committed and/or taken by his subordinates. [sic]
Docket No. [#72] at 16 (Plaintiff's citations omitted). Essentially, Plaintiff contends that Napoli should have done a better investigation following the alleged assault on March 9, 2009. See, id . at 16-17. However, Plaintiff has not shown that Napoli was involved in investigating the March 9 th incident. Moreover, even assuming that discrepancies in reports would have alerted Napoli to the fact that corrections officers had assaulted Plaintiff, Napoli would only have learned of the alleged assault after the fact. The Court has considered all of Plaintiff's arguments, and finds that Napoli is entitled to summary judgment.
Defendants' Motion to Revoke IFP Status and Dismiss The
Court will now consider Defendants' motion to revoke Plaintiff's
in forma pauperis status and to dismiss the action.
Clearly, the Court may revoke a prisoner plaintiff's in
forma pauperis status if it determines that he is in
violation of the three strikes provision, which the Court already set
forth above. See, generally, Harris v. City of New York
, 607 F.3d 18 (2d Cir. 2010); Collazo v. Pagano
, 656 F.3d 131 (2d Cir. 2011). In this case, Plaintiff admits that
he has at least two strikes, from the Northern District of New York.
The question is whether the third alleged strike, involving this
Court's dismissal of Perkins v. Doe , 08-CV-6257
CJS (Fe) (W.D.N.Y.) is also a strike. As discussed earlier, Plaintiff
contends that such dismissal was not a strike, because the dismissal
was for lack of jurisdiction. However, even assuming
Plaintiff is correct that a dismissal for lack of jurisdiction
does not qualify for a strike, which this Court need not decide, he is
incorrect about the reason for the dismissal. This Court dismissed
Perkins v. Doe for failure to state a claim upon
which relief may be granted, and therefore such dismissal would
qualify as Plaintiff's third strike under 28 U.S.C. §
1915(g). Moreover, Plaintiff is not entitled to the statutory
exception, since his pleadings did not indicate that he was "under
imminent danger of serious physical injury" at the time he commenced
the action. Accordingly, Plaintiff's in forma pauperis
status is revoked. Plaintiff must pay the applicable filing
fee of three hundred fifty dollars ($350) within thirty days of the
filing of this Decision and Order, and his failure to pay such fee
will result in a dismissal of this case without further order of the
Napoli's motion for summary judgment [#62] is granted.
Plaintiff's application for injunctive relief [#80] is denied.
Defendants' motion to dismiss [#85] is granted in part and denied in
part as follows: Plaintiff's in forma pauperis status
is revoked. Plaintiff must pay the applicable filing fee of three
hundred fifty dollars ($350) within thirty days of
the filing of this Decision and Order, and his failure to
pay such fee will result in a dismissal of this case without further
order of the Court .
In the event that this action is dismissed for Plaintiff's failure to pay the filing fee, the Court hereby certifies, pursuant to 28 U.S.C. § 1915(a), that any appeal from this Order would not be taken in good faith and leave to appeal to the Court of Appeals as a poor person is denied. Coppedge v. United States , 369 U.S. 438 (1962). Further requests to proceed on appeal in forma pauperis should be directed on motion to the United States Court of Appeals for the Second Circuit in accordance with Rule 24 of the Federal Rules of Appellate Procedure.
Charles J. Siragusa