JOSEPH M. ELMER, Plaintiff,
BRIAN FISCHER, et al., Defendants.
Michael A. Sciortino, Esq., Chamberlain, D'Amanda, Oppenheimer & Greenfield, Rochester, NY, for plaintiff.
J. Richard Benitez, A.A.G., N.Y.S. Attorney General's Office Department of Law, Rochester, NY, for defendants.
DECISION & ORDER
CHARLES J. SIRAGUSA, District Judge.
Plaintiff Joseph M. Elmer ("Plaintiff") a prison inmate currently in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS"), brought a pro se civil rights action pursuant to 42 U.S.C. § 1983 against DOCCS employees ("Defendants") for alleged violations of his First and Eighth Amendment Constitutional rights stemming from events that occurred while he was incarcerated at Attica Correctional Facility ("Attica"). Compl., Oct. 5, 2009, ECF No. 1.
Defendants have moved to dismiss the complaint on the grounds that Plaintiff's official capacity claims are barred by the Eleventh Amendment and that Plaintiff failed to allege personal involvement by the supervisory Defendants in the alleged Constitutional violations. Def. Mem. at 3-4, ECF No. 6-2. Following an application to appoint counsel, the Court assigned Michael A. Sciortino, Esq., to represent Plaintiff pro bono on October 29, 2010. ECF No. 12. Despite multiple extensions of time, Plaintiff's counsel has not submitted a response to Defendants' motion. ECF Nos. 14, 15, 18.
For the reasons that follow, Defendants' motion to dismiss is granted in part and denied in part.
Plaintiff is suing DOCCS employees Brian Fischer, Commissioner of DOCCS ("Commr. Fischer"); James T. Conway, Superintendent at Attica ("Supt. Conway"); and Corrections Officers J. Miller ("C.O. Miller") and C. Wegner ("C.O. Wegner"). The complaint alleges that on January 18, 2009, Plaintiff was leaving A-Block corridor to attend Catholic mass when he was stopped by C.O. Wegner, who stated, "No I.D., no chapel." Compl. at 3. When Plaintiff began to return to his cell, he was stopped by C.O. Miller, who had him place his hands against the wall and asked him why Plaintiff shook his head when C.O. Wegner instructed him to return to his cell. Plaintiff replied that he was disappointed, to which C.O. Miller responded by "[going] ballistic, " and striking him in the left side of his face, knocking him to the ground. Compl. at 3.
The complaint further alleges that during the incident, C.O. Miller told Plaintiff, "Next time an officer tells you to do something, you don't shake your head." Plaintiff was then told to return to his cell. Before Plaintiff proceeded, C.O. Miller hit Plaintiff again, knocking the cap from his front left tooth and told him to "get the fuck out of [his] face." Id. Plaintiff claims that C.O. Miller is 6-feet tall and 245 pounds, and Plaintiff is five-footeight and 174 pounds.
Plaintiff's complaint indicates that he filed a grievance shortly after he returned to his cell. Following his grievance, Plaintiff claims that he was subjected to constant verbal and mental degradation, deprived of electricity and running water in his cell, and was denied meals. Because of the abuse, Plaintiff attempted suicide and was placed in the Intensive Care Unit at Warsaw Hospital for one week. When he returned to Attica, Plaintiff claims that the harassment continued. Finally, he states that he was forced to write a statement indicating that he fabricated the assault.
Plaintiff sets forth five causes of action, which can be characterized as follows: (1) C.O. Wegner violated Plaintiff's right to religious practice when he prevented Plaintiff from attending mass; (2) C.O. Miller subjected Plaintiff to excessive force when he struck Plaintiff twice; (3) C.O. Wegner failed to protect Plaintiff from the assault by C.O. Miller; (4) Supt. Conway exercised deliberate indifference and failed to protect Plaintiff from retaliation that he suffered following the filing of his grievance; (5) all Defendants failed to protect Plaintiff by not taking steps to investigate his grievance and by forcing him to write a statement that the assault did not occur. Compl. at 3-4.
Motion to Dismiss Standard