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Hardimon v. Westchester County

United States District Court, Second Circuit

November 6, 2013



P. KEVIN CASTEL, District Judge.

Plaintiff Kevin Hardimon brings this action against Corrections Officer White and Corrections Sergeant Hodge, individually and in their official capacities, and Westchester County, alleging that while incarcerated, the individual defendants subjected him to cruel and unusual punishment and violated his due process rights, and that Westchester County failed to prevent these violations. Hardimon's claims are asserted under section 1983, 42 U.S.C. § 1983, and he also asserts a state law assault claim against Corrections Officer White. Defendants have moved to dismiss the complaint pursuant to Rule 12(b)(6), Fed.R.Civ.P. (Dkt. 17.) Hardimon, who is proceeding pro se, has filed no opposition papers and has not communicated with the Court since the filing of the motion over three months ago.[1] For the reasons stated below, the defendants' motion is granted in part and denied in part.


According to the complaint, upon Hardimon's return from a court appearance on January 17, 2013, Corrections Officer White approached him and directed him to return to cell 10, where he had been housed. (Dkt. 2 at 5.[2]) Corrections Officer White thereafter directed Hardimon into Cell 12. (Id.) Upon direction from an "unknown correctional officer, " Corrections Officer White directed Hardimon to "13-Cell 1-East." (Id.) 13-Cell 1-East was unsanitary and unclean. Id . Hardimon attempted to flush the toilet, which then overflowed. (Id.) He requested that Corrections Officer White call a supervisor. (Id.) Corrections Officer White refused to call a supervisor, and instead stated that he would "call an Inmate to come with the snake sorry that's what happens when you hit correctional staff." (Id.) The complaint alleges that Corrections Officer White's statement and Hardimon's placement in 13-Cell 1-East were in retaliation for a prior incident between Hardimon and another corrections officer. ( Id. at 5, 7.) Hardimon repeatedly requested that Corrections Officer White call a supervisor. ( Id. at 7.) Hardimon then stood next to Corrections Officer White with his arms crossed, again requesting that he call a supervisor. (Id.) In response, Corrections Officer White stated in profane language that he would hurt Hardimon. (Id.) Hardimon repeated his request that Corrections Officer White call a supervisor. (Id.) Corrections Officer White then "without warning smacked plaintiff in his face then followed with two punches to Plaintiffs face then... dun plaintiff to the concrete ground then... stompped on plaintiff back 2 times [sic]." (Id.) Corrections Officer White dragged Hardimon for approximately 18 feet into "3 Cell" while screaming expletives at him. (Id.) Corrections Officer White allegedly punched Hardimon in the head three additional times, and picked Hardimon up and dropped him to the ground. (Id.) Hardimon was then taken to solitary confinement by the Emergency Response Team. (Id.) Hardimon alleges that he suffered bruising and severe back pain, sharp neck pain, lumps on his head, knee pain, insomnia, post-traumatic stress disorder, and anxiety. (Dkt. 2-1 at 5.)

According to the complaint, after this incident, Corrections Officer White created a false disciplinary report, which stated that Hardimon had punched Corrections Officer White. (Dkt. 2 at 7.) Hardimon attempted to submit a grievance to Sergeant Hodge on January 22, 2013, the last day he was able to submit a grievance under Westchester County Jail rules. (Id.) Sergeant Hodge refused to accept Hardimon's grievance form, stating that Hardimon could not "grieve disciplinary." (Id.) Hardimon was found guilty at a disciplinary hearing, and sentenced to "45 days 30 solitary confinement 15 KEEPLOCK status." (Id.) Hardimon appealed that decision, and his appeal was denied. (Id.)


To survive a motion to dismiss under Rule 12(b)(6), "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp v. Twombly , 550 U.S. 544, 570 (2007)). "[L]abels and conclusions' or a formulaic recitation of the elements of a cause of action will not do.'" Id . (quoting Twombly , 550 U.S. at 555). A plaintiff must plead "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id . However, "detailed factual allegations' are not necessary. Id . (quoting Twombly , 550 U.S. at 555-56).

In considering a Rule 12(b)(6) motion, all non-conclusory factual allegations are accepted as true, see id. at 678-79, and all reasonable inferences are drawn in favor of the plaintiff. See In re Elevator Antitrust Litig. , 502 F.3d 47, 50 (2d Cir. 2007) (per curiam). Moreover, plaintiff's pro se pleadings are "to be liberally construed... [and], however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.'" Erickson v. Pardus , 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble , 429 U.S. 97, 106 (1976)).

"[T]he complaint is deemed to include any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference." Chambers v. Time Warner, Inc. , 282 F.3d 147, 152 (2d Cir. 2002) (quoting Intl Audiotext Network, Inc. v. Am. Tel. & Tel. Co. , 62 F.3d 69, 72 (2d Cir. 1995) (per curiam)). Finally, an unopposed Rule 12(b)(6) motion is still subject to review on its merits. McCall v. Pataki , 232 F.3d 321, 322 (2d Cir. 2000).


I. Monell Claim

Local governing bodies, such as Westchester County, may be sued directly under section 1983 only where "a violation of rights resulted from the government's policy or custom, whether made by its lawmakers or by those whose edits or acts may fairly be said to represented official policy.'" Nagle v. Marron , 663 F.3d 100, 116 (2d Cir. 2011) (quoting Monell v. Dep't of Social Servs. , 436 U.S. 658, 694 (1978)). To demonstrate Monell liability, a plaintiff must show a violation of constitutional rights and "(1) the existence of a municipal policy or custom... that caused his injuries beyond merely employing the misbehaving officer[s]'; and (2) a causal connection-an affirmative link'-between the policy and the deprivation of his constitutional rights.'" Harper v. City of New York , 424 F.Appx. 36, 38 (2d Cir. 2011) (summ. order) (quoting Vippolis v. Vill. Of Haverstraw , 768 F.2d 40, 44 (2d Cir. 1985)) (internal quotation marks omitted). "A plaintiff may plead a municipal policy or custom by alleging: (1) a formal policy, promulgated or adopted by the entity; or, (2) that an official with policymaking authority took action or made a specific decision which caused the alleged violation of constitutional rights; or (3) the existence of an unlawful practice by subordinate officials that was so permanent or well settled so as to constitute a custom or usage, ' and that the practice was so widespread as to imply the constructive acquiescence of policymaking officials." Shepherd v. Powers, 11 Civ. 6860 (LTS), 2012 WL 4477241, at *9 (S.D.N.Y. Sept. 27, 2012) (internal quotation marks omitted).

Hardimon alleges that Westchester County failed to properly supervise or discipline its employees and failed to protect him from Officer White. In an effort to demonstrate a municipal policy or custom which caused his injuries, he annexes to his complaint a December 6, 2012 memorandum from Captain Wendell W. Smiley (Dkt. 2-3 at 3), responding to another inmate's allegations regarding Corrections Officer White. The response from Captain Smiley to inmate Santiago Gomez indicates that another inmate had previously filed a grievance against Corrections Officer White. An allegation of a single prior grievance against an officer does not plausibly allege a "widespread" practice that amounts to a municipal policy or custom.

Hardimon also attaches a copy of a November 19, 2009 letter from then-Assistant U.S. Attorney General Thomas E. Perez to Westchester County Executive Andrew J. Spano (hereinafter "Findings Letter"), which reports the results of a joint investigation of the conditions at the Westchester County Jail by the Civil Rights Division of the Justice Department and the United States Attorney's Office pursuant to the Civil Rights of Institutionalized Persons Act, 42 U.S.C. § 1997. (Dkt. 2-4 at 3 - Dkt. 2-10.) The Findings Letter indicates that the Emergency Response Team ("ERT") used excessive force against inmates. (Dkt. 2-5 at 1-7.) The ERT is defined in the Findings Letter as "a team of correction officers and supervisors who respond to incidents such as inmate-on-inmate and inmate-on-staff assaults. Each ERT comprises several correctional officers protected in full riot gear and helmets, and falls under the command of the Emergency Services Unit." (Dkt. 2-5 at 7 n.6.) Hardimon does not allege that any members of an ERT utilized excessive force against him or that Corrections Officer White was serving as an ERT ...

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