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Nicholson v. Fischer

United States District Court, Second Circuit

January 14, 2014

KENNETH NICHOLSON, Plaintiff,
v.
BRIAN FISCHER et al., Defendants.

OPINION

THOMAS P. GRIESA, District Judge.

Pro se plaintiff Kenneth Nicholson, an inmate at Sing Sing Correctional Facility, brings this § 1983 action against various officials of the New York State Department of Corrections and Community Supervision. Nicholson alleges that these officials failed to protect him from an attack by another inmate. He also alleges that they verbally harassed him and discussed his personal affairs in front of another inmate.

Nicholson names a wide range of people as defendants: Commissioner Brian Fischer, Superintendent Michael Capra, Deputy Superintendent William Keyser, Captain E. Mejia, Sergeant F. Malave, Sergeant Andrew Nevins, Corrections Counselor Tijiuana Patterson, Corrections Counselor L. Campbell, Corrections Officer Kenneth Maine, Corrections Officer James Miller, Corrections Officer Jason Duggins.

Sergeant Nevins, Corrections Officer Maine, and Corrections Officer Duggins filed an answer to the complaint. Based on the case docket, Corrections Officer Miller has not yet been served.

The rest of the defendants move to dismiss the complaint, asserting that Nicholson has failed to show that they were personally involved in the events giving rise to the claim. They also assert that the allegations of verbal harassment cannot form the basis of a valid § 1983 claim. The motion to dismiss on these grounds is granted.

Nicholson requests a default judgment, the appointment of counsel, and leave to amend the complaint. The motion for default judgment and the motion to appoint counsel are denied, but leave to amend the complaint is granted.

The Complaint

Nicholson's complaint focuses on two allegations, each against various defendants. First, he alleges that certain defendants failed to protect him from an attack by a fellow inmate. Nicholson asserts that he informed an unnamed officer at Auburn Correctional Facility that he feared that fellow inmate Rufus Spears may attempt to harm him because he allegedly had witnessed Spears murder someone. Later, when Nicholson was transferred to Sing Sing Correctional Facility, he was put into the general population, instead of protective custody, and no one checked to see whether Spears was incarcerated at Sing Sing as well. Nicholson alleges that three days after his transfer, he encountered Spears and that Spears held him while another inmate cut the right side of Nicholson's face. Nicholson also alleges that he sent letters about his fear of Spears to several prison officials, including defendant Commissioner Fisher. Nicholson asserts a claim arising out of these events against Commissioner Fischer, Superintendent Capra, Deputy Superintendent Keyser, Captain Mejia, Sergeant Malave, Corrections Counselor Patterson, and Corrections Counselor Campbell.

The second claim involves a series of allegations that various defendants took his mail, verbally harassed him, and discussed his personal business. He alleges that Corrections Officer Maine took his mail and yelled at him. He alleges that Sergeant Nevins "acted under color of federal law when dealing with the plaintiff." He also alleges that Corrections Officer Miller threatened him and that Corrections Officer Duggins threatened him, withheld his soap, and denied him privileges that were granted to other inmates. Additionally, he alleges that Corrections Counselor Patterson referred to him using "derogatory terminology" and discussed Nicholson's personal business with other prison officials while other inmates were present. Finally, Nicholson says that he "brought this matter to" the attention of defendants Commissioner Fischer, Superintendent Capra, Deputy Superintendent Keyser, Captain Mejia, Sergeant Nevins, but that "no action has been taken" by these defendants.

Based on these events, Nicholson asserts claims for deprivation of his constitutional rights.

Discussion

To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a complaint must plead sufficient facts to state a claim for relief that is plausible on its face. Ashcroft v. Iqbal , 556 U.S. 662, 677-78 (2009); Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007). In deciding a motion under Rule 12(b)(6), a court must accept as true the facts alleged in the complaint. Id . A pro se plaintiff "is entitled to a particularly liberal reading" of his complaint. Lopez v. Jet Blue Airways , 662 F.3d 593, 596 (2d Cir. 2011). But even a pro se plaintiff must plead enough facts to state a claim to relief that is plausible on its face. Johnson v. City of New York , 669 F.Supp.2d 444, 448-49 (S.D.N.Y. 2009).

Claim 1: Failure to Protect

Nicholson asserts the first claim against Commissioner Fischer, Superintendent Capra, Deputy Superintendent Keyser, Captain Mejia, Sergeant Malave, Corrections Counselor Patterson, and Corrections Counselor Campbell. These ...


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