United States District Court, W.D. New York
Armond McCloud, Plaintiff, Pro se, Romulus, NY.
For Mark Bradt, Superintendent of Attica Correctional Facility in his official and individual capacity, J. Griffen, Correctional Officer at the Attica Corr. Fac in his official and individual capacity, Sgt Shepanksi, A. Olles, Defendants: Gary M. Levine, LEAD ATTORNEY, New York State Office of the Attorney General, Rochester, NY.
DECISION AND ORDER
DAVID G. LARIMER, United States District Judge.
Plaintiff Armond McCloud, appearing pro se, has filed this action under 42 U.S.C. § 1983. Plaintiff, an inmate in the custody of the New York State Department of Corrections and Community Supervision (" DOCCS" ), has sued five individuals, who at all relevant times were DOCCS officials or employees. Plaintiff alleges that defendants violated his constitutional rights in a number of respects in connection with certain events that occurred in 2013, while plaintiff was confined at Attica Correctional Facility.
Defendants have moved pursuant to Fed.R.Civ.P. 12(b)(6) to dismiss the complaint, with the exception of one claim against two of the defendants. Plaintiff has filed a response in opposition to the motion, as well as a motion for sanctions.
The complaint sets forth the following factual allegations, which are assumed to be true for purposes of defendants' motion. In March 2013, despite their knowledge that plaintiff was at particular risk of attack by other inmates, defendants Mark Bradt and Albert Prack, who were respectively the Superintendent of Attica and the DOCCS Director of Special Housing, had plaintiff removed from protective custody and returned to general population. Complaint ¶ 13.
After he was returned to general population, plaintiff informed defendant Correction Officer (" CO" ) J. Griffin that he had been receiving threats from other inmates. On March 5, 2013, however, Griffin deliberately opened plaintiff's cell door to allow two other inmates to enter plaintiff's cell and physically assault him. Complaint ¶ 15. Plaintiff was seriously injured in the assault. Complaint ¶ 19.
The inmates who carried out the assault also allegedly doused plaintiff with feces that they had in a coffee can. Complaint ¶ 20. The two inmates then left plaintiff's cell, and in response to plaintiff's cries for help, defendant Griffin returned to the cell. When he saw plaintiff's condition, Griffin retrieved a fire hose, and sprayed plaintiff for several minutes, calling plaintiff a " crybaby" as he did so. Complaint ¶ 22.
Plaintiff was issued a misbehavior report for engaging in an unhygienic act, and was placed in solitary confinement. While there, he was interviewed by a mental health worker. After plaintiff told the worker what had happened, plaintiff was taken to the infirmary, and from there to the Erie County Medical Center, where he was treated for his injuries. Complaint ¶ ¶ 25, 26, 32.
Defendant CO A. Olles was assigned to investigate plaintiff's assault allegation, but Olles allegedly conducted a deliberately poor investigation, including by failing to preserve evidence, in order to cover up what had happened. Olles allegedly did so at the direction of defendant Sergeant Shepanski, who at one point told plaintiff, " This is Attica. We do what we want." Complaint ¶ ¶ 29, 30. The misbehavior charges against plaintiff were later dismissed based on " circumstances surrounding the incident," but his grievance arising out of the alleged assault was denied as unfounded. Complaint Exs. E, G.
Based on these allegations, plaintiff has asserted the following claims: (1) a failure-to-protect claim against Griffin, Prack and Bradt; (2) a negligent-supervision claim against Bradt; (3) an Eighth Amendment claim against Griffin based on Griffin's spraying plaintiff with a fire hose; (4) a destruction-of-evidence claim against Shepanski and Olles; and (5) a conspiracy claim against Shepanski, Olles and Griffin. Plaintiff seeks money damages ranging from $50,000 to $75,000.
Defendants have moved to dismiss the complaint, with the exception of plaintiff's failure-to-protect claim against Bradt and Griffin. For the ...