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Evans v. Murphy

United States District Court, Second Circuit

May 22, 2013

Shawn Evans, Plaintiff,
Officer P. Murphy et al., Defendant.


HUGH B. SCOTT, Magistrate Judge.

Before the Court is the plaintiff's motion to amend the complaint (Docket No. 9); plaintiff's motion for appointment of counsel (Docket No. 20); as well as various motions to compel discovery (Docket Nos. 17, 23, 29 and 30).


The plaintiff, Shawn Evans ("Evans"), commenced this action alleging that he was assaulted by various correctional officers while incarcerated at the Southport Correctional Facility ("Southport"). (Docket No. 1). Evans alleged that on January 13, 2012, Officers P. Murphy ("Murphy"), G. Reppert ("Reppert"), S. Davis ("Davis"), J. Terribilini ("Terribilini"), and R. Pulsifer ("Pulsifer") ran into his cell and assaulted him because he filed a grievance. (Docket No. 1 at page 5). He also alleged that Officer E. Rozell ("Rozell") kicked him in the stomach, punched him in the face, and called him a "stupid faggot." (Docket No. 1 at page 5). Officer Reppert is alleged to have punched the plaintiff in the stomach and called him a "stupid niggar." (Docket No. 1 at page 5). Evans asserts that defendant Pulsifer was present but took no action to stop the assault. The plaintiff claims that he suffered a cut to his left thigh, back and shoulder injuries, a swollen face and several abrasions. (Docket No. 1 at page 5). Evans asserted that on December 31, 2011, Officers Davis, Rozell and J. Yung[1] ("Yung"), and other officers, came into his cell. According to the plaintiff, "Davis took [off] his jacket and stated: I am tired of you niggars giving me a hard time.' Officer Rozell stated: You can fight a one on one;' and I went: Jump in.'" (Docket No. 1 at page 6)(Punctuation added). Evans does not allege that any physical altercation took place, but states that Yung was present and watched the other officers harass him. He was then denied recreation for that day. (Docket No. 1 at page 6).

Before the original complaint was served upon the defendants, the plaintiff filed an Amended Complaint which contains the same claims relating to December 31, 2011 and January 13, 2012 as the original complaint. The Amended Complaint adds Yung (spelled "Young") as a defendant (although referred to in the body of the original complaint, Yung was not listed as a defendant in the caption). The Amended Complaint also adds a few details such as that the alleged assault on January 13, 2012 was in response to the fact that Evans had filed a grievance against Davis and Rozell; and that the officers wrote a fabricated misbehavior report against him as a result of this incident. (Docket No. 3 at page 3).

The Amended Complaint was served upon defendants Pulsifer (Docket No. 5) and Yung (spelled "Young") (Docket No. 6). An answer was filed on behalf of all defendants on July 26, 2012. (Docket No. 7).

After a scheduling order was issued (Docket No. 8), the plaintiff filed a Second Amended Complaint (Docket No. 9). Because the plaintiff could no longer amend the complaint as of right, the Court construed this filing as a motion to amend the complaint. (Docket No. 12). The defendants oppose the motion to amend the complaint (Docket No. 13). The plaintiff filed a reply in support of the motion to amend. (Docket No. 45).[2]

Motion to Amend

The plaintiff seeks to file a Second Amended Complaint (Docket No. 9). This complaint again restates the December 31, 2011 and January 13, 2012 incidents, but purports to add Nurse J. Clement ("Clement") and Superintendent T. Griffin ("Griffen") as defendants. In this regard, the proposed Second Amended Complaint states only: "Nurse J. Clement who was the nurse on duty didn't document my injuries and fabricated reports covering the incident up for the officers. Superintendent Griffin knew about both incidents and failed to do anything about the matter." (Docket No. 9 at page 4). The Second Amended Complaint also purports to name each of the defendants "individually and in their official capacities." (Docket No. 9 at page 1). Finally, the Second Amended Complaint also includes additional allegations relating to the December 31, 2011 and January 13, 2012 incidents. For example, with respect to the December 31, 2011 incident, Evans asserts that he wrote Griffin and asked him to stop the staff from harassing him. As to the January 13, 2012 incident, Evans included new details such as: Davis and Terribilini "held" the plaintiff while the other officers assaulted him; and that Reppert choked Evans. (Docket No. 9 at pages 3-4).

Generally, Rule 15(a) of the Federal Rules of Civil Procedure provides that leave to amend a party's pleading "shall be freely given when justice so requires." Leave to amend should be given "absent evidence of undue delay, bad faith or dilatory motive on the part of the movant, undue prejudice to the opposing party, or futility." Monahan v. New York City Dep't of Corrs. , 214 F.3d 275, 283 (2d Cir.2000). However, "[w]here it appears that granting leave to amend is unlikely to be productive, ... it is not an abuse of discretion to deny leave to amend.'" Lucente v. International Business Machines Corp. , 310 F.3d 243, 258 (2d Cir.2002) (quoting Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir.1993) (per curiam )). "A district court has discretion to deny leave for good reason, including futility, bad faith, undue delay, or undue prejudice to the opposing party." McCarthy v. Dun & Bradstreet Corp. , 482 F.3d 184, 200 (2d Cir.2007); Pappas v. Bank of America Corp., 2009 WL 382602 at *2 (2d. Cir. 2009). An amendment is futile where it is legally insufficient on its face such that the amended claim could not survive a motion to dismiss. Fillmore East BS Finance Subsidiary LLC v. Capmark Bank, 2013 WL 1294519 (S.D.N.Y. 2013) citing Lucente v. IBM Corp. , 310 F.3d 243, 258 (2d Cir.2002). A claim can only withstand a Rule 12(b)(6) motion, of course, if it contains sufficient facts to "state a claim for relief that is plausible on its face.'" Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) quoting Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570 (2007).

The defendants oppose the motion to amend on several grounds. First, the defendants assert that the Second Amended Complaint would be futile to the extent that it seeks to assert the claims against the defendants in their official capacities. The plaintiff's reply papers do not address this argument. It is well-settled that claims for damages against state officers in their official capacities is barred by the Eleventh Amendment. Amaker v. New York State Dept. of Correctional Services, 435 Fed.Appx. 52 (2d. Cir. 2011). Thus, to the extent the plaintiff sought to amend the complaint to assert claims against the individual defendants in their official capacities, the motion to amend is denied.

The defendants also object to the addition of Clement and Griffin as defendants, arguing that the plaintiff's proposed Second Amended Complaint fails to allege sufficient personal involvement by these individuals and otherwise fails to state a claim upon which relief can be granted. (Docket No. 13 at pages 4-7). Again, the plaintiff's reply papers do not address these arguments.

With respect to the proposed claim against Griffin, "[i]t is well settled in the Second Circuit that mere receipt of a letter from an inmate, without more, does not constitute personal involvement for the purposes of section 1983 liability." A'Gard v. Perez, 2013 WL 298377 (S.D.N.Y. 2013) citing Smith v. Masterson , 2006 WL 2883009, at *13 (S.D.N.Y. 2006) and Sealey v. Giltner , 116 F.3d 47, 51 (2d Cir.1997) (dismissing claims against DOCS Commissioner where his personal involvement was limited to receiving two letters from plaintiff)). The conclusory assertion in this case is that Evans sent a letter to Griffin after the alleged verbal harassment on December 31, 2011. The plaintiff makes no assertion that Griffin was personally involved in the harassment or that Griffin had knowledge of any specific threat against Evans. Such a claim would not survive a motion to dismiss under the standard set forth in Iqbal.

Similarly, the plaintiff's proposed claim against Clement is also futile. The proposed complaint does not assert that Clement was personally involved in either the December 31, 2011 or January 13, 2012 incidents or that Clement was deliberately indifferent to the plaintiff's medical needs. Instead, the plaintiff asserts that Clement failed to document Evans' injuries to cover-up the incident. Such a claim does not state a constitutional claim. A similar claim was rejected in LeBlanc v. Gerry, 2012 WL 2374206 (D.N.H., 2012). In LeBlanc, the plaintiff claimed that officials attempted to cover up an alleged assault. As in the instant case, the Court in LaBlanc noted that it was unclear what rights the plaintiff asserts were violated by the alleged cover-up. The Court held that "[e]ven if the complaint were construed as alleging an agreement among the defendants to cover up the assault, the plaintiff has failed to state a cognizable claim." citing Thore v. Howe , 466 F.3d 173, 178-79 (1st Cir.2006) (dismissing conspiracy claim where no "deprivation of a right secured by the Constitution or laws" alleged). See also Mortimer Excell v. Fischer , 2009 WL 3111711 (N.D.N.Y. 2009)(Dismissing plaintiff's claim that a prison nurse falsified his medical records so as to cover up the alleged assault, and another prison official participated in the conspiracy by instructing that no photographs be taken of inmate's injuries after the alleged assault); Sowell v. Chappius , 695 F.Supp.2d 16 (W.D.N.Y. 2010)(dismissing claim that correctional officer wrote a ...

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