The opinion of the court was delivered by: Norman A. Mordue, United States District Judge
The Clerk has sent to the Court a pro se civil rights complaint filed by plaintiff John H. White. Dkt. No. 1 ("Compl."). Plaintiff, who is currently incarcerated at Upstate Correctional Facility, seeks leave to proceed with this action in forma pauperis. Dkt. No. 3 ("IFP Application"). Plaintiff has also filed several amended complaints (Dkt. Nos. 12, 22, 26); motions for preliminary injunctive relief (Dkt. Nos. 2, 11); motions to amend his complaint (Dkt. Nos. 7, 23, 28); a motion for default judgment (Dkt. No. 16); and a request for a teleconference hearing to address various issues (Dkt. No. 27).
A. In Forma Pauperis Application
Upon review of plaintiff's IFP Application (Dkt. No. 3), the Court finds that plaintiff has demonstrated sufficient economic need and may commence this action without prepayment of the filing fee.
Having found that plaintiff meets the financial criteria for commencing this action in forma pauperis, and because plaintiff seeks relief from a governmental entity or an officer or employee of a governmental entity, the Court must consider the sufficiency of the allegations set forth in the complaint in light of 28 U.S.C. §§ 1915(e) and 1915A. Section 1915(e) directs that, when a plaintiff seeks to proceed in forma pauperis, "(2) . . . the court shall dismiss the case at any time if the court determines that -- . . . (B) the action . . . (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B).*fn1 Thus, even if a plaintiff meets the financial criteria to commence an action in forma pauperis, it is the court's responsibility to determine whether the plaintiff may properly maintain the complaint that he filed in this District before the court may permit the plaintiff to proceed with this action in forma pauperis. See id.
Likewise, under 28 U.S.C. § 1915A, a court must review any "complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity" and must "identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint . . . is frivolous, malicious, or fails to state a claim upon which relief may be granted; or . . . seeks monetary relief from a defendant who is immune from such relief." 28 U.S.C. § 1915A; see also Carr v. Dvorin, 171 F.3d 115, 116 (2d Cir. 1999) (per curiam) (Section 1915A applies to all actions brought by prisoners against government officials even when plaintiff paid the filing fee); Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007) (stating that both sections 1915 and 1915A are available to evaluate prisoner pro se complaints).
In reviewing a pro se complaint, the court has a duty to show liberality toward pro se litigants, see Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990) (per curiam), and should exercise "extreme caution . . . in ordering sua sponte dismissal of a pro se complaint before the adverse party has been served and both parties (but particularly the plaintiff) have had an opportunity to respond." Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983) (internal citations omitted). Therefore, a court should not dismiss a complaint if the plaintiff has stated "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). Although the Court should construe the factual allegations in the light most favorable to the plaintiff, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Id. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (citing Twombly, 550 U.S. at 555). "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged--but it has not 'show[n]'--'that the pleader is entitled to relief.'" Id. at 679 (quoting Fed. Rule Civ. Proc. 8(a)(2)). Rule 8 "demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). Thus, a pleading that only "tenders naked assertions devoid of further factual enhancement" will not suffice. Id. (internal quotation marks and alterations omitted). Allegations that "are so vague as to fail to give the defendants adequate notice of the claims against them" are subject to dismissal. Sheehy v. Brown, 335 Fed. App'x 102, 104 (2d Cir. 2009).
C. Summary of Plaintiff's Complaint
Plaintiff includes in his complaint more than thirty defendants, all employees of the New York State Department of Corrections and Community Supervision ("DOCCS"). See generally Compl. Most of the defendants were, at the time period asserted in the complaint, employed at Upstate Correctional Facility ("Upstate C.F."). The facts are set forth as alleged in plaintiff's complaint.
On December 1, 2010, at the Upstate C.F. Isolation unit, plaintiff was threatened by his cellmate. Compl. at 4. Throughout the 6 a.m. to 2 p.m. shift, plaintiff repeatedly asked to be separated from his cellmate because he feared his life was in danger, but no one would assist him, so he remained confined to his cell. Id. E. LaBarr was distributing mail, and opened plaintiff's cell hatch, whereupon plaintiff "intentionally & knowingly obstructed" the distribution of the mail by placing his left arm though the hatch. Id. Plaintiff refused to remove his arm. Id. Plaintiff told LaBarr that he felt threatened by his cellmate, but LaBarr said that neither plaintiff, nor his cellmate, would be removed from the cell "simply because of a irreconcilable conflict which may lead to a little scuffle." Id. Sergeant Jerry Hebert and correctional officers Clintsman and King arrived at plaintiff's cell. Id. Plaintiff was told by "all officers" to remove his arm, but plaintiff "knowingly" refused to comply because Sergeant Hebert told him that plaintiff and his cellmate would not be separated because of an irreconcilable difference. Id. at 5. Plaintiff told Sergeant Hebert that, after a prior Tier III hearing, Don Hoag warned plaintiff to avoid further physical altercations, or he would face more severe penalties. Id. Hebert again ordered plaintiff to remove his arm from the hatch; plaintiff refused. Id. Lt. Caron and multiple officers arrived at the cell. Id. Caron directed correctional officer Lamica to record the incident with a hand-held camera. Id. Plaintiff explained to Caron his fear of his cellmate and his desire to avoid a physical altercation, but Caron disregarded this and again ordered plaintiff to remove his arm from the hatch. Id. at 5-6. Plaintiff refused and demanded to be separated from his cellmate because he feared for his life. Id. at 6. Caron told plaintiff that unless plaintiff removed his arm, he had been authorized to allow correctional officers to beat plaintiff's arm with batons. Id. Plaintiff finally removed his arm. Id. Defendants Rock, Uhler, Lira, and Otis, failed "to remedy lack of sufficient security intervention" inside double bunk cells. Id. at 22.
After the officers left the cell, plaintiff told his cellmate that he did not wish to fight, but that he would "get removed instantly by alleging a suicide attempt." Compl. at 7. After plaintiff did so, correctional officer King contacted Sergeant Hebert. Id. Plaintiff was escorted to the medical infirmary by multiple officers, hand-cuffed and chained at the waist, and monitored with a hand-held camera until he reached the infirmary. Id. at 7-8. Plaintiff was stripped, examined, and given a suicide smock. Id. at 8. Then the door was locked and the hand-held camera was turned off. Id. Later that day, Caron arrived and told plaintiff that because plaintiff gave his officers a hard time, he "would be getting [his] ass whipped tonight." Id.
About thirty minutes later, correctional officers Clark, Stockwell, Richards, Sisto, LeClair, and Conto, entered plaintiff's room and beat him. Compl. at 8. R.N. Smith and R.N. Rushford watched the assault, which lasted over fifteen minutes. Id. After the assault, the correctional officers threatened plaintiff and told him to stop writing up officers and giving them a hard time. Id. at 9. After the officers left the room, plaintiff requested medical attention, which was denied. Id. Plaintiff was told to stop complaining or he would get another "ass whopping." Id. Shortly thereafter, plaintiff was beaten by correctional officers Fournier, Dishaw, Carr, and King. at the direction of Clark, who told them not to hit plaintiff's face. Id. at 10. The correctional officers who assaulted plaintiff conspired with all of the administrative officials to violate his constitutional rights, and to violate state laws and regulations. Id. at 11-12.
Plaintiff received no medical attention until after the shift had
changed, whereupon he received two pain pills. Compl. at 10. The
following morning, plaintiff was interviewed by OMH Supervisor Kemp,
who concluded that plaintiff's suicide threat was merely an attempt to
avoid having a cell fight. Id. Kemp told plaintiff that his cellmate
had been relocated and plaintiff should return to his cell.*fn2
Id. Plaintiff was escorted back to his cell by correctional
officers Gokey and Dobbins, both of whom noticed plaintiff's injuries
but failed to assist plaintiff or "report suspicions of battery gang
assault." Id. at 11. Gokey and Dobbins told plaintiff that R.N.
Travers wanted to see plaintiff when he returned to his cell, however
Travers only looked at plaintiff and said "I just wanted to make sure
he's alive." Id.
R.N. Smith, R.N. Rushford, R.N. Travers, and Amber Lashway denied plaintiff adequate medical care for the injuries suffered from the aforementioned assaults in deliberate indifference to his serious medical needs. Id. at 13-14. Gokey and Dobbins failed to notify area sergeant about plaintiff's gang assault. Id. at 22. David Rock and Donald Uhler were deliberately indifferent to plaintiff's serious medical needs because they "failed to respond or initiate an investigation or process complaints or letters forwarded" to them. Id.
Plaintiff attempted to use the prison grievance system to solve his problems, but grievance officials, Superintendent Rock, and DOCCS Commissioner Fischer have refused to acknowledge receipt of his grievances. Compl. at 16. Plaintiff wrote letters about the misconduct to Superintendent Rock on December 2 and 4, 2010. Id. at 15. Plaintiff also notified staff at the DOCCS' Inspector General's Office and Sergeant Oropallo of the misconduct. Id. at 15-16. Additionally, plaintiff's grievances and letters of complaint were destroyed by Gregory, White, and David Rock, which also violated plaintiff's right of access to the courts. Id. at 20.
Construed liberally, plaintiff asserts the following claims in violation of his rights under the First, Eighth, and Fourteenth Amendments: (1) defendants LaBarr, King, Clintsman, Sergeant Hebert, Lt. Caron, and John Doe - Z, failed to protect plaintiff by not separating plaintiff and his cellmate when plaintiff told them that he feared for his life, and defendants Rock, Uhler, Lira, and Otis failed to correct this wrongdoing (Compl. at 17-18, 22); (2) defendants Smith and Rushford failed to intervene to protect plaintiff from assault; (id. at 20); (3) at the alleged direction of Lt. Caron, defendants Clark, Stockwell, Richards, Conto, LeClair, Sisto, Dishaw, Carr, King, and Fournier, subjected plaintiff to excessive force (id. at 8, 10, 19-20); (4) defendants Smith, Rushford, Travers, Lashway, Rock, and Uhler denied plaintiff medical care in deliberate indifference to his serious medical needs (id. at 20-21); (5) plaintiff's ability to file grievances was impeded or his grievances were destroyed, which in turn denied him access to the courts, and his grievances were not adequately investigated (id. at 16); and (6) defendants Caron and Travers harassed and verbally abused plaintiff, causing plaintiff emotional distress (id. at 18, 21). Plaintiff seeks monetary damages, as well as injunctive and declaratory relief. For a complete statement of plaintiff's claims, refer to the complaint.*fn3
D. Analysis of Plaintiff's Complaint
1. Eighth Amendment Claims
The Eighth Amendment prohibits cruel and unusual punishment which encompasses punishments that involve the "unnecessary and wanton infliction of pain" and are incompatible with "the evolving standards of decency that mark the progress of a maturing society." Estelle v. Gamble, 429 U.S. 97, 102 (1976) (citations and quotations omitted). While the Eighth Amendment does not mandate comfortable prisons, neither does it tolerate inhumane treatment of those in confinement; thus the conditions of an inmate's confinement are subject to Eighth Amendment scrutiny. Farmer v. Brennan, 511 U.S. 825, 832 (1994) (citing Rhodes v. Chapman, 452 U.S. 337, 349 (1981)).
A claim alleging that prison conditions violate the Eighth Amendment must satisfy both an objective and subjective requirement - the conditions must be "sufficiently serious" from an objective point of view, and the plaintiff must demonstrate that prison officials acted subjectively with "deliberate indifference." See Leach v. Dufrain, 103 F. Supp. 2d 542, 546 (N.D.N.Y. 2000) (Kahn, J.) (quoting Wilson v. Seiter, 501 U.S. 294, 297-98 (1991)); Waldo v. Goord, No. 97-CV-1385 (LEK/DRH), 1998 WL 713809, at *2 (N.D.N.Y. Oct. 1, 1998). Deliberate indifference exists if an official "knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer, 511 U.S. at 837.
Plaintiff alleges multiple violations of his Eighth Amendment rights.
a. Failure-to-Protect Claims
Under the Eighth Amendment prison officials are required to take reasonable measures to guarantee the safety of inmates and to protect them from known harm. Farmer, 511 U.S. at 832-33. In Farmer, the Supreme Court set out the two-pronged test that determines when a failure to protect a prison inmate from assault by other inmates rises to the level of a constitutional violation. First, the prisoner must have been "incarcerated under conditions posing a substantial risk of serious harm." Id. at 834. Second, the prison official must have shown "deliberate indifference" to the prisoner's safety. Id. Deliberate indifference exists when "the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference."
Id. at 837; Hines v. Lacy, 189 F.3d 460 (2d Cir. 1999).
Plaintiff alleges that defendants LaBarr, King, Clintsman, Sergeant Hebert, Lt. Caron, and John Doe - Z, failed to protect him from danger because, although plaintiff repeatedly told them that he was afraid that he would get into a physical altercation with his cellmate, they refused to separate him from his cellmate. These facts, even if true, do not support a failure-to-protect claim under the Eighth Amendment. For one thing, 42 U.S.C. § 1997e(e) provides that "[n]o Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury." The complaint itself fails to allege that plaintiff suffered any injury as a result of defendants' failure to separate plaintiff from his cellmate. Plaintiff's claim is therefore barred under 42 U.S.C. § 1997e(e).
Here, plaintiff does not plead facts to meet either the objective or subjective components for stating a failure-to-protect claim. Apart from his own assertion that he feared his cellmate, plaintiff has offered no specific information to establish that he was incarcerated under conditions posing a substantial risk of harm. See Hayes v. New York City Dep't of Corr., 84 F.3d 614, 620 (2d Cir. 1996) (In order to demonstrate such deliberate indifference, the plaintiff must allege that "he [wa]s incarcerated under conditions posing a substantial risk of serious harm" and that the prison official had "knowledge that [the] inmate face[d] a substantial risk of serious harm and ... disregard[ed] that risk by failing to take reasonable measures to abate the harm."). Nor does he allege any facts to suggest that the defendants were deliberately indifferent to his safety. Se Morales v. New York State Dep't of Corr., 842 F.2d 27, 30 (2d Cir. 1988) (In addition, a failure-to-protect claim requires a showing that prison officials acted with "deliberate indifference" to the inmate's safety.). Indeed, plaintiff does not allege even a single incident wherein he was assaulted, or in any way injured by his cellmate. In fact, it appears that plaintiff was separated from his cellmate before any physical altercation occurred. Under these circumstances, plaintiff has failed to allege objective facts demonstrating the existence of a plausible claim of unlawful failure-to-protect on the part of one or more of these defendants, in violation of the Eighth Amendment. Accordingly, plaintiff's failure-to-protect claim against defendants LaBarr, King, Clintsman, Sergeant Hebert, Lt. Caron, and John Doe - Z is dismissed ...