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Johnson v. Gagnon

United States District Court, N.D. New York

February 26, 2015

BRIAN GAGNON, et al., Defendants.

JOHNATHAN JOHNSON, Pro Se, Malone, NY, for Plaintiff.

HON. ERIC T. SCHNEIDERMAN, New York State Attorney General, Buffalo, NY, for Defendants. DAVID J. SLEIGHT, ESQ. Assistant Attorney General.


DAVID E. PEEBLES, Magistrate Judge.

Pro se plaintiff Johnathan Johnson, a New York State prison inmate who is ineligible for in forma pauperis ("IFP") status in this court pursuant to the three strikes provision of 28 U.S.C. § 1915(g), commenced this action in state court asserting civil rights claims under 42 U.S.C. § 1983 against various employees of the New York State Department of Corrections and Community Supervision ("DOCCS").[1] Generally speaking, plaintiff's complaint alleges that the defendants tampered with his food, searched his cell, destroyed legal papers, confiscated his prescription medications, and assaulted him in retaliation for having filed grievances concerning the conditions of his confinement.

Following a series of procedural interventions by the assigned state court judge, defendants removed the action to this court. Defendants have since moved to dismiss plaintiff's claims against certain of the named defendants, arguing that plaintiff's complaint fails to allege the requisite personal involvement of those selected individuals in the constitutional violations asserted. Plaintiff opposes defendants' dismissal motion and has moved to remand the action to state court. For the reasons set forth below, I recommend that plaintiff's remand motion be denied and defendants' motion to dismiss be granted.[2]


Plaintiff is a prison inmate currently being held in the custody of the DOCCS at the Upstate Correctional Facility ("Upstate"), located in Malone, New York. Dkt. No. 4 at 2. In his complaint, plaintiff alleges that between January and April of 2013, while he was confined at Upstate, defendants Daniel Dumas, a corrections officer, and Brian Gagnon, a corrections sergeant, continuously retaliated against him for the filing of grievances by interfering with his doctor-ordered meals, conducting cell searches, and destroying legal court documents. Id. at 3. According to his complaint, the conduct continued with an incident on April 27, 2013, during which defendant Dumas removed plaintiff's meat serving from his dinner, an act allegedly condoned by defendant Gagnon. Id. The interference with plaintiff's meals continued on the following day when defendant Dumas, defendant Beane, also a corrections officer, and another unidentified prison guard again removed meat from plaintiff's lunch and dinner trays. Id. at 3-4. On April 29, 2013, plaintiff filed a grievance, designated as UST 51878-13, complaining of the food tampering and other retaliatory conduct by defendants Dumas, Gagnon, and Beane. Id. at 4. Because the grievance alleged misconduct on the part of corrections officials, it was forwarded to the office of defendant David Rock, the Upstate Superintendent, for investigation. Id. Plaintiff alleges that defendants Rock, Bellnier, Haponik, Annucci, Boll, Koenigsmann, and McKoy became aware of the grievance and "failed to act and take corrective action." Id. at 8-9.

On April 27, 2013, plaintiff's cell was searched by defendants Wendy Seymour and Francis Jarvis, both of whom are corrections officers. Dkt. No. 4 at 6. During the course of that search, defendants Seymour and Jarvis confiscated plaintiff's prescription medication and disrupted his court documents by removing them from envelopes and discarding them on the floor of plaintiff's cell. Id. While the search was being conducted, plaintiff was placed in restraints and allegedly assaulted by defendants Dumas, Gagnon, Richard Liebfred, another corrections officer, and John Tatro, a corrections lieutenant. Id. at 5. Following the incident, plaintiff was taken to Upstate's hospital for evaluation, at which time it was determined that stitches were needed to close a wound to his face and that he had suffered a fractured jaw. Id. at 6.

On or about May 2, 2013, plaintiff was interviewed concerning the use-of-force incident by Corrections Lieutenant Jerry Laramay, another named defendant. Dkt. No. 4 at 6-7. Plaintiff was scheduled to be transported to an outside hospital facility that same day for repair of his fractured jaw. Id. at 7. Defendants Bryan Clark and Brian Grant, two corrections officers who, plaintiff contends, were involved in a prior assault upon him, were assigned to escort plaintiff to the outside medical facility. Id. at 7. Although all of the circumstances surrounding this particular allegation are not clear from plaintiff's complaint, plaintiff contends that, because defendants Clark and Grant were assigned to escort him to an outside medical facility by defendants Rock, Bishop, and Uhler, his "jaw remains fracture[d]." Id.

Following the incidents on April 27, 2013, prison guards continued to tamper with plaintiff's food. Dkt. No. 4 at 8. On May 2, 2013, defendants Dumas and Jarvis removed food from plaintiff's meal tray, and he was denied his lunch tray altogether by defendants Gagnon and Bishop. Id. at 8. Defendant Dumas again tampered with plaintiff's breakfast tray on May 8, 2013. Id. Defendant Gagnon was notified of this last incident, but failed to take any action. Id.


Plaintiff commenced this action in New York State Supreme Court, Franklin County, on October 18, 2013. Dkt. No. 1-1; Dkt. No. 4. Named as defendants in plaintiff's complaint are Corrections Sergeant Brian Gagnon; Corrections Officers Daniel Dumas, Brian Grant, Bryan Clark, Francis Jarvis, Wendy Seymour, Richard Liebfred, and Aaron Beane; Corrections Lieutenants John Tatro and Jerry Laramay; Corrections Captain Reginald Bishop; Deputy Superintendent Donald Uhler; Superintendent David Rock; and Joseph Bellnier, Gayle Haponik, Anthony Annucci, Maureen Boll, Carl Koenigsmann, and Jeff McKoy, all of whom are identified by plaintiff as "Deputy DOCCS Commissioners." Dkt. No. 4.

On October 24, 2013, the matter was assigned to Supreme Court Justice John T. Ellis. Dkt. No. 1-2 at 2. Following that assignment, Justice Ellis issued a decision, dated November 4, 2013, granting plaintiff leave to proceed as a poor person pursuant to New York Civil Practice Law and Rules ("CPLR") § 1101. Dkt. No. 1-3 at 2.

Defendants Beane, Bishop, Clark, Gagnon, Jarvis, and Uhler interposed an answer to plaintiff's complaint on November 27, 2013. Dkt. No. 1-4 at 2-6. That was followed by the filing of an answer, on December 5, 2013, on behalf of defendants Dumas, Seymour, and Tatro, Dkt. No. 1-5 at 2-5, and another, on December 6, 2013, on behalf of defendants Annucci, Bellnier, Boll, Haponik, Laramay, and Rock. Dkt. No. 1-6 at 2-5. On December 23, 2013, prior to the removal of the action, plaintiff requested the entry of default judgment against certain defendants who, at that time, had yet to appear in the action. Dkt. No. 1-7 at 2-6.

On December 16, 2014, plaintiff served the defendants with written discovery demands, including interrogatories and requests for the production of documents. Dkt. No. 1-9 at 38-43. A subsequent motion brought by the defendants to stay discovery and for a protective order, Dkt. No. 1-9, was granted by decision and order issued by Justice Ellis on April 21, 2014. Dkt. No. 1-12. On the same date, Justice Ellis issued a separate decision and order denying plaintiff's motion for the entry of default judgment against defendants Koenigsmann, McCoy, and Liebfred. Dkt. No. 1-11. In this second decision, Justice Ellis concluded that plaintiff had failed to present proper proof of service of the summons and complaint upon the three defendants named in his motion. Id. at 7. Justice Ellis also specifically advised plaintiff that, by simply mailing a summons and complaint to a defendant, he did not satisfy the service requirements of CPLR § 308(2). Id.

Following the issuance of the court's order denying his motion for default judgment, plaintiff applied, ex parte, for permission to serve the defendants in this action by mail. Dkt. No. 1-13. On June 17, 2014, Justice Ellis granted the motion, permitting plaintiff to serve the defendants in the action by mail at their places of employment, with a further directive that the summons and complaint, together with a copy of the court's decision, also be mailed to the Office of the New York State Attorney General. Id. In accordance with that order, on June 24, 2014, plaintiff effectuated service of process on defendants Liebfred, Koenigsmann, and McCoy. Dkt. No. 1 at 4; Dkt. No. 1-14.

Following service, the action was removed to this court on July 24, 2014. Dkt. No. 1. All of the defendants, with the exception of Grant, who has neither been served nor otherwise appeared in the action, subsequently moved, on July 30, 2014, to dismiss plaintiff's claims asserted against twelve named defendants pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Dkt. No. 2. Defendants contend that plaintiff's complaint fails to adequately allege the requisite personal involvement of those certain individuals in the conduct giving rise to the constitutional violations asserted. Id. at 2. On or about August 6, 2014, plaintiff submitted papers in opposition to defendants' motion and cross-moved for an order remanding the case to state court. Dkt. Nos. 6, 7. Defendants since responded in opposition to plaintiff's motion, Dkt. No. 10, and have submitted a reply in further support of their motion to dismiss. Dkt. No. 9. The parties' cross-motions, which are now fully briefed, have been referred to me for the issuance of a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Northern District of New York Local Rule 72.3(c). See Fed.R.Civ.P. 72(b).


A. Motion to Remand

In his remand motion, plaintiff asserts that the action was improvidently removed to this court. See generally Dkt. No. 7. Plaintiff does not challenge this court's jurisdiction to entertain his constitutional claims, which are asserted pursuant to 42 U.S.C. §1983.[4] Id. Instead, his argument centers upon the timing of the notice of removal relative to service upon the various named defendants. Id.

The statute that addresses the timing of removal notices provides, in relevant part, that

[t]he notice of removal of the civil action or proceeding shall be filed within 30 days after receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based[.]

28 U.S.C. § 1446(b). Citing Mermelstein v. Maki, 830 F.Supp. 180 (S.D.N.Y. 1993), plaintiff asserts that the thirty-day period for removal under section 1446(b) is properly measured from the date upon which the first defendant received the initial pleading. Dkt. No. 7 at 7.

Prior to an amendment in 2011 to section 1446, some courts held that, in a case involving multiple defendants, the removal period was properly measured from receipt of the initial pleading by the first defendant. Mermelstein, 830 F.Supp. at 183. Others, however, rejected that position in favor of a rule that measured the removal period from the date of service upon the removing defendant. See Piacente v. State Univ. of N.Y. at Buffalo, 362 F.Supp.2d 383, 385-86 (W.D.N.Y. 2004) (noting a split among the circuits regarding the rules governing removal). The 2011 amendment to section 1446 resolved any ambiguity by providing that "[e]ach defendant shall have 30 days after receipt by or service on that defendant of the initial pleading or summons described in paragraph (1) to file the notice of removal." 28 U.S.C. § 1446(b)(2)(B); Pietrangelo v. Alvas Corp., 686 F.3d 62, 63 (2d Cir. 2012).

Plaintiff appears to argue that each defendant effectively "received" the summons and complaint when it was mailed to him or her, even though, as Justice Ellis advised, mere mailing did not satisfy the service requirements of the CPLR.[5] Dkt. No. 1-11 at 7; CPLR § 308(2). That argument, however, was laid to rest by the Supreme Court in its decision in Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344 (1999). In that case, the Court concluded that mere receipt of a complaint, without formal service, does not trigger the thirty-day removal period under section 1446. Murphy Bros., 526 U.S. at 355-56; accord, Pietrangelo, 686 F.3d at 65.

In this instance, because defendants properly filed a notice of removal within thirty days of service upon defendants Leibfred, Koenigsmann, and McKoy of the summons and complaint pursuant to the state court's order, and all defendants previously served and appearing in the action consented to the removal, I recommend that plaintiff's motion to remand this action to state court be denied.[6] Dkt. No. 1 at 4; Dkt. No. 1-15.

B. Defendants' Dismissal Motion

In their motion, defendants seek dismissal of plaintiff's claims against defendants Rock, Bishop, Uhler, Laramay, Bellnier, Haponik, Annucci, Boll, Koenigsmann, McCoy, Clark, and Grant based upon the lack of any allegations in the plaintiff's complaint plausibly suggesting their personal involvement in any of the constitutional claims asserted. Dkt. No. 2-1 at 2-5.

1. Governing Standard

A motion to dismiss a complaint, brought pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, calls upon a court to gauge the facial sufficiency of that pleading using a standard which, though unexacting in its requirements, "demands more than an unadorned, the-defendant-unlawfully-harmed me accusation" in order to withstand scrutiny. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 554, 555 (2007)). Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, "a pleading must contain a short and plain statement of the claim showing that the pleader is entitled to relief.'" Iqbal, 556 U.S. 677-78 (quoting Fed.R.Civ.P. 8(a)(2)). While modest in its requirements, that rule commands that a complaint contain more than mere legal conclusions. See id. at 679 ("While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.").

In deciding a Rule 12(b)(6) dismissal motion, the court must accept the material facts alleged in the complaint as true and draw all inferences in favor of the non-moving party. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citing Twombly, 550 U.S. at 555-56); see also Cooper v. Pate, 378 U.S. 546, 546 (1964); Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir. 2003); Burke v. Gregory, 356 F.Supp.2d 179, 182 (N.D.N.Y. 2005) (Kahn, J.). The tenet that a court must accept as true all of the allegations contained in a complaint does not apply, however, to legal conclusions. Iqbal, 556 U.S. at 678.

To withstand a motion to dismiss, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570); see also Ruotolo v. City of N.Y., 514 F.3d 184, 188 (2d Cir. 2008). As the Second Circuit has observed, "[w]hile Twombly does not require heightened fact pleading of specifics, it does require enough facts to 'nudge plaintiffs' claims across the line from conceivable to plausible.'" In re Elevator Antitrust Litig., 502 F.3d 47, 50 (2d Cir. 2007) (quoting Twombly, 550 U.S. at 570) (alterations omitted).

When assessing the sufficiency of a complaint against this backdrop, particular deference should be afforded to a pro se litigant, whose complaint merits a generous construction by the court when determining whether it states a cognizable cause of action. Erickson, 551 U.S. at 94 ("[A] pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.'" (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)) (citation omitted)); Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008) ("[W]hen a plaintiff proceeds pro se, a court is obliged to construe his pleadings liberally." (quotation marks and alterations omitted)); Kaminski v. Comm'r of Oneida Cnty. Dep't of Soc. Servs., 804 F.Supp.2d 100, 104 (N.D.N.Y. 2011) (Hurd, J.) ("A pro se complaint must be read liberally.").

2. Analysis

Defendants' dismissal motion is centered upon the sufficiency of the allegations contained in plaintiff's complaint with respect to the personal involvement of defendants Rock, Bishop, Uhler, Laramay, Bellnier, Haponik, Annucci, Boll, Koenigsmann, McKoy, Clark, and Grant. Dkt. No. 2-1 at 2-5. It is well-established that "[p]ersonal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under [section] 1983." Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (citing Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir. 1991); McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir. 1977)). As the Supreme Court has noted, a defendant may only be held accountable for his actions under section 1983. See Iqbal, 556 U.S. at 683 ("[petitioners cannot be held liable unless they themselves acted on account of a constitutionally protected characteristic."). To prevail on a section 1983 cause of action against an individual, a plaintiff must show "a tangible connection between the acts of a defendant and the injuries suffered." Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986). "To be sufficient before the law, a complaint must state precisely who did what and how such behavior is actionable under law." Hendrickson v. U.S. Attorney Gen., No. 91-CV-8135, 1994 WL 23069, at *3 (S.D.N.Y. Jan. 24, 1994).[7]

Although the rule is no different with regard to individuals sued based on their role as a supervisor, section 1983 does not provide for liability based on respondeat superior. Richardson v. Goord, 347 F.3d 431, 435 (2d Cir. 2003); see also Wright, 21 F.3d at 501. The Second Circuit has held that to establish responsibility on the part of a supervisory official for a civil rights violation, a plaintiff must demonstrate that the individual (1) directly participated in the challenged conduct; (2) after learning of the violation through a report or appeal, failed to remedy the wrong; (3) created or allowed to continue a policy or custom under which unconstitutional practices occurred; (4) was grossly negligent in managing the subordinates who caused the unlawful event; or (5) failed to act on information indicating that unconstitutional acts were occurring. Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995);[8] see also Richardson, 347 F.3d at 435.

In this instance, turning first to defendants Clark and Grant, the allegations contained in plaintiff's complaint are limited.[9] It is alleged that, on May 2, 2013, those individuals were assigned to transport Johnson to an outside facility to have his jaw repaired. Dkt. No. 4 at 7. Although plaintiff further alleges that defendants Clark and Grant are responsible for the fact that his jaw is not currently repaired, there are no allegations in the complaint that explain how or why they are responsible. Id. Even liberally construed, plaintiff's complaint fails to allege facts plausibly suggesting that defendants Clark and Grant violated plaintiff's constitutional rights. Accordingly, I recommend dismissal of plaintiff's claims against them.

Relatedly, plaintiff contends that defendants Rock, Bishop, and Uhler are responsible, based on their roles as supervisors, for acting with gross negligence in assigning defendants Clark and Grant to transport plaintiff on May 2, 2013. Dkt. No. 4 at 7; Dkt. No. 6 at 5. Because I have concluded that the complaint fails to plausibly allege the requisite personal involvement of defendants Clark and Grant, defendants Rock, Bishop, and Uhler cannot be held liable in their supervisory capacities for the absence of a constitutional violation committed by their subordinates.[10] See, e.g., Jacoby v. Conway, No. 10-CV-0920, 2013 WL 1559292, at *12 (W.D.N.Y. Apr. 10, 2013) ("[S]upervisory defendants cannot be held liable for inadequate training or supervision when the officers involved in the incident do not violate plaintiff's constitutional rights. Absent a violation, plaintiff's allegations against [the superintendent and deputy superintendent] also fails.").

Plaintiff also alleges that defendant Laramay is responsible for violating his constitutional rights, but the complaint fails to plausibly allege a basis for any claim against this defendant. Plaintiff alleges that on May 2, 2013, he was interviewed by defendant Laramay regarding the use-of-force incident that had occurred on April 27, 2013. Dkt. No. 4 at 6. In addition, plaintiff's complaint contains the following allegation involving defendant Laramay:

On May 2, 2013 after prison guard (Dumas) had broken plaintiff's jaw by kicking him in his face, Sergeant (Gagnon) permitted this prison guard (Dumas) and the other prison guard (Rock) plaintiffs [sic] had allegedly spitted upon be the escorts to remove him from the interview room. As well as Lieutenant Jerry Laramay.

Id. at 7. Liberally construed, it appears plaintiff contends that defendant Laramay was partially responsible for permitting the same two corrections officers to escort plaintiff after an incident in which plaintiff allegedly spat on them. Id. Neither of the allegations involving defendant Laramay, however, plausibly suggest he violated any of plaintiff's constitutional rights. Plaintiff does not, for instance, (1) contend that defendant Laramay ignored plaintiff's complaints of the use-of-force incident on April 27, 2013, or (2) allege that he suffered a constitutional violation during the escort by defendant Dumas and another corrections officer. Absent such allegations, plaintiff's claims against defendant Laramay are also subject to dismissal for lack of personal involvement.

Finally, plaintiff's second cause of action, asserted against defendants Rock, Bellnier, Haponik, Annucci, Boll, Koenigsmann, and McKoy, is based on his allegation that they "are supervisors and are assigned pursuant to Directive 4040 (Inmate Grievance Programs), and are on the Central Office [R]eview Committee." Dkt. No. 4 at 8. Plaintiff further contends that all of those individuals were "informed of the allegations of wrong doing [sic] by the defendants at the Upstate Correctional Facility thr[ough] a[] grievance complaint (UST 51878-13) and failed to act and take corrective action." Id. at 8-9. These allegations, however, are not sufficient to plausibly suggest the personal involvement of defendants Rock, Bellnier, Haponik, Annucci, Boll, Koenigsmann, or McKoy under Colon. The grievance of which the supervisory officials were allegedly aware, grievance number UST 51878-13, was submitted on April 29, 2013, and concerned alleged retaliatory conduct by defendants Dumas, Gagnon, and Beane. Id. at 4. Plaintiff fails to allege, however, how defendants Rock, Bellnier, Haponik, Annucci, Boll, Koenigsmann, and McKoy became aware of the grievance. Instead, plaintiff conclusorily alleges that, after becoming aware of the grievance, the individuals did not take any steps to remedy the issue. This is not sufficient to plausibly suggest the personal involvement of supervisory officials.[11]

Similarly, plaintiff's claim fails to the extent he relies on the fourth Colon prong, which provides for supervisor liability in circumstances where a supervisor was grossly negligent in managing subordinates. Dkt. No. 6 at 5; Colon, 58 F.3d at 873. In an effort to satisfy this requirement, plaintiff maintains, in opposition to defendants' motion to dismiss, as follows:

That the supervisory defendants [Rock, Bellnier, Haponik, Annucci, Boll, Koenigsmann, and McKoy] also falls under Colon-v-Coughlin (4) and (5) requirement, where through inmate grievance complaints filed by Johnson from January 2013 through April 2013, by grossly negligent' in supervising these Upstate subordinates whom committed the wrongful acts within the complaint.

Dkt. No. 6 at 5. Even liberally construed, this conclusory allegation does not plausibly suggest defendants Rock, Bellnier, Haponik, Annucci, Boll, Koenigsmann, and McKoy acted in a manner that would demonstrate gross negligence.

C. Whether to Permit Amendment

If adopted by the assigned district judge, the recommendations set forth above would result in the dismissal of plaintiff's claims against twelve defendants based upon lack of personal involvement. The next issue to be addressed is whether the court should permit plaintiff to amend his complaint to cure the deficiencies identified in connection with the claims asserted against those individuals.

Ordinarily, a court should not dismiss a complaint filed by a pro se litigant without granting leave to amend at least once "when a liberal reading of the complaint gives any indication that a valid claim might be stated." Branum v. Clark, 927 F.2d 698, 704-05 (2d Cir.1991); see also Fed.R.Civ.P. 15(a) ("The court should freely give leave when justice so requires."); see also Mathon v. Marine Midland Bank, N.A., 875 F.Supp. 986, 1003 (E.D.N.Y.1995) (permitting leave to replead where court could "not determine that the plaintiffs would not, under any circumstances, be able to allege a civil RICO conspiracy"). Here, given the procedural history of this action, the court must determine whether plaintiff is entitled to the benefit of this general rule.

Most of the deficiencies identified in plaintiff's complaint could feasibly be cured through the inclusion of greater factual detail. Accordingly, I recommend that plaintiff be permitted to amend his complaint, if desired, to address the deficiencies identified in this report.

In the event plaintiff chooses to file an amended complaint, he is advised that the law in this circuit clearly provides that "complaints relying on the civil rights statutes are insufficient unless they contain some specific allegations of fact indicating a deprivation of rights, instead of a litany of general conclusions that shock but have no meaning.'" Hunt v. Budd, 895 F.Supp. 35, 38 (N.D.N.Y. 1995) (McAvoy, J.) (quoting Barr v. Abrams, 810 F.2d 358, 363 (2d Cir. 1987)); Pourzandvakil v. Humphry, No. 94-CV-1594, 1995 WL 316935, at *7 (N.D.N.Y. May 22, 1995) (Pooler, J.). Therefore, in his amended complaint, plaintiff must clearly set forth the facts that give rise to the claim, including the dates, times, and places of the alleged underlying acts, and each individual who committed each alleged wrongful act. In addition, the revised pleading should allege facts demonstrating the specific involvement of each of the named defendants in the constitutional deprivations alleged in sufficient detail to establish that they were tangibly connected to those deprivations. Bass, 790 F.2d at 263. Finally, plaintiff is informed that any such amended complaint will replace the existing original complaint, and must be a wholly integrated and complete pleading that does not rely upon or incorporate by reference any pleading or document previously filed with the court. See Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir. 1994) (It is well established that an amended complaint ordinarily supersedes the original, and renders it of no legal effect." (quotation marks omitted)).


Addressing plaintiff's motion to remand, I conclude that this court possesses subject matter jurisdiction to entertain plaintiff's claims, and I discern no defect in the removal process warranting remand. Turning to defendants' dismissal motion, plaintiff's complaint contains allegations against various defendants who are alleged to have actively participated in the events giving rise to his claims. The allegations against some of those defendants are deficient in that they fail to allege their direct role in a constitutional deprivation. Certain other defendants are sued based on their roles as supervisors and plaintiff's contention that, through a grievance he filed on April 29, 2013, they became aware of the alleged constitutional deprivations but failed to remedy them. Plaintiff's allegations against the supervisor-defendants fail to establish their personal involvement in the violations alleged. Based upon the foregoing it is hereby respectfully

RECOMMENDED that plaintiff's motion to remand this action to state court (Dkt. No. 7) be DENIED; and it is further

RECOMMENDED that defendants' motion to dismiss the claims asserted against certain defendants in the action be GRANTED (Dkt. No. 2), and that all of plaintiff's claims against defendants Rock, Bishop, Uhler, Laramay, Bellnier, Haponik, Annucci, Boll, Koenigsmann, McKoy, Clark, and Grant be DISMISSED with leave to replead.

NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections must be filed with the clerk of the court within FOURTEEN days of service of this report. FAILURE TO SO OBJECT TO THIS REPORT WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993).

It is hereby ORDERED that, pending a final disposition of the two motions now before the court, and the court's issuance of the standard Rule 16 scheduling order, discovery in the action is hereby STAYED; and it is further

ORDERED that the clerk of the court serve a copy of this report and recommendation upon the parties in accordance with this court's local rules.


McKENNA, District Judge.

*1 On December 4, 1991, pro se plaintiff Dale Hendrickson ("Plaintiff or "Hendrickson"), an inmate then in confinement at the Federal Correctional Institution in Otisville, New York ("Otisville"), filed this action for injunctive relief and damages based upon alleged violations of his rights under the United States Constitution, Amendments I, IV, V, VI, IX, and XIII, and upon violations of various laws and/or regulations governing prison administration.FN1 The Complaint named as defendants G.L. Hershberger ("Hershberger"), the United States Attorney General ("Attorney General"), Gary Morgan ("Morgan"), Pamela Ashline ("Ashline"), Kenneth Walicki ("Walicki"), Hulett Keith ("Keith"), the Bureau of Prisons ("BOP"), and the Otisville Medical Department ("OTV Medical Department") (collectively "Defendants"). Defendants moved for judgment on the pleadings pursuant to Rule 2(c) of the Federal Rules of Civil Procedure, or, in the alternative, for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons set out below, Defendants' Rule 2(c) motion is granted.


Defendants move to dismiss Plaintiff's Complaint, pursuant to Rule 2(c) of the Federal Rules of Civil Procedure, for failure to state a claim upon which relief can be granted. Rule 12(c) provides:

After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings. If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.

Fed.R.Civ.P. 12(c). "[T]he same standards that are employed for dismissing a complaint for failure to state a claim under Fed.R.Civ.P. 12(b)(6) are applicable" to a Rule 12(c) motion to dismiss for failure to state a claim upon which relief can be granted. See Ad-Hoc Comm. of the Baruch Black & Hispanic Alumni Ass'n v. Bernard M. Baruch College, 835 F.2d 980, 982 (2d Cir.1987); see also Viacom Int'l. Inc. v. Time, Inc., 785 F.Supp. 371, 375 n. 11 (S.D.N.Y.1992); 5A Charles Wright and Arthur R. Miller, Federal Practice and Procedure ¶ 1367, at 515-16 (1990). Thus, the Court must read the Complaint generously, drawing all reasonable inferences from the complainant's allegations. See California Motor Transp. v. Trucking Unlimited, 404 U.S. 508, 515 (1972). Moreover, "consideration is limited to the factual allegations in [the] amended complaint, which are accepted as true, to documents attached to the complaint as an exhibit or incorporated in it by reference, to matters of which judicial notice may be taken, or to documents either in plaintiff[s] possession or of which plaintiff[] had knowledge and relied on in bringing suit." Brass v. American Film Technologies, Inc., 987 F.2d 142 (2d Cir.1993); accord Allen v. West-point-Pepperell, Inc., 945 F.2d 40, 44 (2d Cir.1991); Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47-48 (2d Cir.1991), cert. denied, 112 S.Ct. 1561 (1992); Frazier v. General Elec. Co., 930 F.2d 1004, 1007 (2d Cir.1991). Defendants, therefore, are entitled to dismissal for failure to state a claim only if the Court finds beyond a doubt that "plaintiff can prove no set of facts" to support the claim that plaintiff is entitled to relief. See Conley v. Gibson, 355 U.S. 41, 45-46 (1957).

*2 Because the 3(g) statement and declarations submitted to this Court by Defendants have not been considered and are hereby excluded from the record, the Court renders its judgment on the pleadings pursuant to Rule 12(c).


Drawing all inferences in favor of the Plaintiff, Miller v. Polar Molecular Corp., 12 F.3d 1170, 1993 WL 527434 (2d Cir.), the facts are as follows.

During Hendrickson's confinement at Otisville, certain video tapes which had been supplied to him by the government were "systematically and maliciously confiscated"; audio tapes and legal materials also were removed from Plaintiff's possession while he was a pre-trial detainee at Otisville. In retaliation for his bringing legal materials into the Otisville compound area, Plaintiff claims, he was placed in administrative detention. Compl. at 1 (presumably ¶ A.)

Hendrickson also claims at various times to have been wrongly isolated from the general prison population based on alleged and allegedly erroneous OTV Medical Department claims that he had tuberculosis. Id. ¶ B. During these periods of medical confinement, Hendrickson claims that the "4A unit team" denied him personal visits, his right to send mail, and telephone communications and consultations necessary to his legal representation. Id.


Hendrickson claims that as part of his medical confinement he was "subjected to ruthless and inhumane [disciplinary action from the Disciplinary] H[earing] Officer], " and was for 15 days placed in administrative detention and for 30 days deprived of commissary, visitation, and phone privileges. Id. ¶ D.

Hendrickson further alleges that commissary items that he had in his possession before entering medical confinement were wrongly confiscated from him, and while in such confinement he was assaulted and searched by the "OTV Riot Squad." Id. ¶ E. In addition, he claims, commissary receipts, as well as legal documents and other legal materials were confiscated from him. Id. ¶ F.


Defendants argue that Plaintiff fails to state a claim for which relief may be granted. Of course, in considering a pro se pleading, the Court takes into consideration the special circumstances of pro se litigants. As the Second Circuit has often noted, "special solicitude should be afforded pro se litigants generally, when confronted with motions for summary judgment." Graham v. Lewinski, 848 F.2d 342, 344 (2d Cir.1988); accord, e.g., Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 642 (2d Cir.1988); Beacon Enters., Inc. v. Menzies, 715 F.2d 757, 767 (2d Cir.1983). We apply the same solicitous standard to the instant motion to dismiss.

Plaintiff, however, has failed to present to this Court either a colorable theory of violation of legal duties or facts to support a claim that might be inferred from the pleadings. Even assuming the truth of Plaintiff's allegations, the Court is left without a cognizable claim before it.

*3 At the outset, the Court notes that to the extent that the Complaint seeks injunctive relief from conditions of Plaintiff's treatment while at Otisville as a pre-trial detainee, the claim is now moot as Plaintiff has since been transferred to the United States Penitentiary in Lompoc, California following his conviction at trial. Hendrickson's Complaint also fails to the extent that it seeks damages from the United States government or government officials in their official capacity. Because the United States government enjoys sovereign immunity, it can be sued only to the extent it so consents. United States v. Mitchell, 445 U.S. 535, 538 (1980) (quoting U.S. v. Sherwood, 312 U.S. 584, 586 (1941)). No such immunity has been waived in suits for damages arising from constitutional violations. Keene Corp. v. United States, 700 F.2d 836, 845 n. 13 (2d Cir.), cert. denied, 464 U.S. 864 (1983). Thus, the only possible redress remaining available to Plaintiff for the harms alleged is a Bi-vens actionFN2 against government officials in their personal capacities for actions taken under the color ofgovernmental authority.

As Defendants point out, however, Plaintiff has nowhere, other than in the caption of the Complaint, mentioned by name any of the individual named Defendants. Defs.' Mem.Supp.Mot.Dismiss or Summ.Jt. at 2. It is true that Plaintiff did in the body of the Complaint name the "4A Unit Team, " the "DHO, " and the "OTV Riot Squad, " but these designations of group actions undifferentiated as to individuals and of official titles unconnected to any individual names do not allege the actionable individual behavior necessary to sustain a Bivens claim.

In a Bivens action, where Defendants are sued in their personal capacities, actionable behavior must be alleged as to individuals. See, e.g., Ostrer v. Aronwald, 567 F.2d 551, 553 (2d Cir.1977); Barbera v. Smith, 836 F.2d 96, 99 (2d Cir.1987), cert. denied, 489 U.S. 1065 (1989). A complaint that fails to make any specific factual allegations of "direct and personal responsibility on the part of any of the named defendants in regard to the loss of any of [plaintiff's] property" must be dismissed. Lee v. Carlson, 645 F.Supp. 1430, 1436 (S.D.N.Y.1986).

More importantly, the light in which a pro se complaint may be considered does not burn so brightly as to blind the court as to the rights of defendants who are entitled to have claims against them alleged with sufficient clarity as to make possible a defense. Even in a pro se complaint, claims must "specify in detail the factual basis necessary to enable [defendants] intelligently to prepare their defense..." Ostrer v. Aronwald, 567 F.2d 551, 553 (2d Cir.1977). Otherwise, blameless parties would be subject to damages claims for free-floating innuendo. To be sufficient before the law, a complaint must state precisely who did what and how such behavior is actionable under law. Although the Court may make special efforts to understand the underlying claim of a vague, confusing, or poorly crafted pro se complaint that it would not undertake in connection with a claim prepared by legal counsel, it cannot do so to the extent that this would work an injustice to defendants, whose rights also must be protected. A defendant who is alleged to be liable for his actions has a right to have the claims against him spelled out with a basic degree of clarity and particularity. See supra at 7. Although some of the harms alleged by Plaintiff might conceivably be of some substance, the Court cannot understand from the documents before it which defendants are alleged to have participated in which allegedly actionable behavior. The Court cannot on such a basis subject a party to potential liability. See Defs' Mot. at 9, 10.

Summary and Order

*4 For the reasons stated, Plaintiff has failed to plead a colorable case. Defendants' motion to dismiss is granted.

FN1. The Complaint states only that "Bureau of Prison institutional Law" was violated; subsequent documents filed by Plaintiff imply the violation of specific prison policies. See, e.g., Letter from Hendrickson to Judge McKenna of 10/13/93 at 2 (citing BOP Policy Statement 1315.3 purportedly concerning prisoner access to legal materials while in administrative detention).
FN2. Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).

Brent Jacoby, Bay Minette, AL, pro se.

Kim S. Murphy, Nys Attorney General's Office, Buffalo, NY, for Defendants.


HUGH B. SCOTT, United States Magistrate Judge.

*1 Before the Court is defendants' motion for summary judgment (Docket No. 35 FN1). Responses to this motion were due by March 15, 2013, with any reply due by March 29, 2013, and this motion was deemed submitted (without oral argument) on March 29, 2013 (Docket No. 47). On December 14, 2011, the parties consented to proceed before the undersigned (Docket No. 7).

FN1. In support of their motion, defendants submitted their individual Declarations, Docket Nos. 38-45; their Statement of Facts, Docket No. 36; their Memorandum of Law, Docket No. 37; the Declaration of Dr. Jadow Row, Docket No. 48; exhibit of plaintiff's medical records, filed under seal, Docket No. 49, Rao Ex. A; their attorney's Reply Declaration, Docket No. 52.
In opposition, plaintiff submits his Memorandum of Law with six pages from plaintiff's medical records as exhibits, Docket No. 50.

Plaintiff is proceeding here pro se and is currently detained in a county jail in Alabama (see Docket No. 36, Defs. Statement ¶ 1). The remaining defendants are the Attica Correctional Facility Superintendent James Conway; Deputy Superintendent Paul Chappius; New York State Department of Corrections and Community Supervision ("DOCCS") sergeants Robert Dunbar and Sean Warner; corrections officers Gary Pritchard, Scott Bosworth, Keith Swack, and Matthew Rademacher (see generally Docket Nos. 4, 5 (Answers to Complaint); 20, 22, 24 (Answers to Amended Complaint); 40, 39, 41, 45, 42, 38, 44, 43 (Declarations of defendants); 36, Defs. Statement ¶¶ 2-9). Plaintiff moved for leave to file an Amended Complaint (Docket No. 14), which was granted (Docket No. 15), and plaintiff filed his Amended Complaint (Docket No. 16).

Plaintiff moved to proceed in forma pauperis (Docket No. 2), which was granted but ordering the dismissal of claims against some defendants, including John Does (Docket No. 3). After being detained in Alabama, plaintiff moved for appointment of counsel (Docket No. 26), which was denied without prejudice (Docket No. 28).


Plaintiff sued defendants for violation of his civil rights, pursuant to 42 U.S.C. § 1983, while he was incarcerated at the Attica Correctional Facility ("Attica") (Docket No. 16, Am. Compl.). On July 7, 2010, an Hispanic inmate got into an argument with a corrections officer and had his cell searched ( id. ¶¶ 1-2). Before officers got to that cell, plaintiff yelled out man down to let inmates know that the officers were on the cell block floor ( id. ¶ 3). Plaintiff alleges that the Hispanic inmate then was beaten by officers ( id. ¶ 4). Later that evening, plaintiff went downstairs to go outside for recreation, but never made it to recreation because he was detained by officers. One of the officers called plaintiff a "spic and nigger lover" and punched plaintiff in his face. ( Id. ¶¶ 5-6.) He claims that he was punched by defendant Pritchard and choked by defendant Swack as Swack lifted plaintiff off the ground by plaintiff's neck ( id. ¶ 6). Plaintiff alleges that defendant Rademacher also punched him while plaintiff was in the air ( id. ). Plaintiff ran away and then passed out from anxiety attack or seizure ( id. ). Plaintiff accuses Sergeant Warner of observing this incident and doing nothing to stop it ( id. ). Plaintiff complains that he had mental health diagnoses and had seizures prior to this incident ( id. ¶ 7). Plaintiff was helped back to his cell and the next morning went to sick call ( id. ¶ 8), claiming that he had black and blue marks around his eyes, welts on his neck, and a cut under his eye like a strawberry ( id. ¶ 9). He claims that he has a permanent bruise on the side of his right eye, suffered dizzy spells, and blurry vision requiring him to wear glasses ( id. ¶ 10). Plaintiff, who had given his identification card at the start of this incident, did not get the card back and was denied access to the commissary on July 15, 2010 ( id. ¶ 11); he had a new one issued to him on July 21, 2010 ( id. ).

*2 On July 15, 2010, plaintiff alleges that an unknown officer, perhaps Swack, punched him and called him a "white nigger" and that if plaintiff "wanted to hang with spics and niggers he would treat him like one" ( id. ¶ 13). On July 20, 2010, plaintiff left his cell but was put up against the wall by officers while Sergeant Dunbar watched ( id. ¶ 14). These officers then grabbed plaintiff by his legs, pulled off his boots and squeezed his feet and toes "really hard" and twisted his legs "in dangerous angles to inflict pain, " apparently because the officers were upset for plaintiff helping the unnamed Hispanic inmate ( id. ). Plaintiff was told to put his boots back on and, as he was trying to go upstairs, defendant Bosworth ran through the door and slammed plaintiff into the wall by his shoulder, yelling insults and obscenities ( id. ¶ 15). He contends that he was losing weight and constantly hungry during this period and was tired of the abuse ( id. ¶ 16). At this point plaintiff wrote to Superintendent Conway and Deputy Superintendent Chappius about these incidents ( id. ). Plaintiff was taken to "medical" by Sergeant Dunbar but plaintiff did not report any injuries there since Dunbar was also in the room ( id. ¶ 17).

On July 24, 2010, plaintiff was returned to C-Block, where he claims that officers would not allow him to eat when he was housed there ( id. ¶ 19). On July 26, while in C-Block and returning from chow, plaintiff alleges that he was assaulted by another inmate but plaintiff would not identify the assailant to Sergeant Dunbar ( id. ¶ 21); plaintiff does not claim that Dunbar failed to protect plaintiff from that inmate. Plaintiff was to be moved to A-Block and protective custody but plaintiff refused transfer there, instead he was placed in involuntary protective custody in B-Block ( id. ¶¶ 23-25).

Defense Motion for Summary Judgment

According to defendants' Statement (Docket No. 36), plaintiff was an inmate in Attica from July 7 to 27, 2010 ( id. ¶ 1). Plaintiff alleges violations of his constitutional rights in the excessive use of force on July 7, 2010, by Pritchard, Swack, and Rademacher, while Sergeant Warner watched and excessive use of force and verbal harassment on July 20, 2010, by Bosworth, while Sergeant Dunbar watched ( id. ¶ 10). As for the July 7 incident, Warner wrote a memorandum (Docket No. 45, Warner Decl. ¶ 4, Ex. A; Docket No. 36, Defs. Statement ¶ 11), stating that while onsite supervisor for C-Block, Warner supervised his officers in conducting spot pat down frisks of inmates which may have included plaintiff (Docket No. 45, Warner Decl., Ex. A; Docket No. 36, Defs. Statement ¶ 12). Warner states that these frisks occurred without incident and without any inmate assaults (Docket No. 45, Warner Decl. ¶¶ 3, 5, Ex. A; Docket No. 36, Defs. Statement ¶ 12). Warner states that he did not recall the incidents alleged by plaintiff and denies assaulting him or witnessing corrections officers assaulting plaintiff (Docket No. 45, Warner Decl. ¶ 3). Pritchard, Rademacher, and Swack each wrote memoranda on this incident (Docket No. 36, Defs. Statement ¶¶ 13-15; Docket No. 42, Pritchard Decl. ¶ 5, Ex. A; Docket No. 43, Rademacher Decl. ¶ 5, Ex. A; Docket No. 44, Swack Decl. ¶ 5, Ex. A). Each officer denies assaulting plaintiff (Docket No. 42, Pritchard Decl. ¶¶ 3, 5; Docket No. 43, Rademacher Decl. ¶¶ 3, 5; Docket No. 44, Swack Decl. ¶¶ 3, 5). Pritchard denies knowing plaintiff (Docket No. 42, Pritchard Decl., Ex. A) and, had he used force against plaintiff a use of force report would have been made and no such report was written ( id. ¶ 6).

*3 As for the July 20 incident, Sergeant Dunbar and Boswell also wrote memoranda (Docket No. 36, Defs. Statement ¶¶ 17-20; DocketNo. 41, Dun-bar Decl., Ex. A; Docket No. 38, Boswell Decl., Ex. A), also declaring that the pat frisk done that day were performed in a professional manner and that no assaults occurred.

Plaintiff filed a grievance concerning these two incidents but the grievance was investigated and denied as unfounded (Docket No. 36, Defs. Statement ¶¶ 21-22; see, e.g., Docket No. 40, Conway Decl. ¶ 3). Plaintiff, in filing this grievance and other communications, only carbon copied defendant Chappius and never directly addressed any correspondence to Chappius (Docket No. 36, Defs. Statement ¶¶ 35-36, 37). After plaintiff wrote additional letters to the Superintendent's office, a further investigation was conducted and no credible evidence was produced to support plaintiff's claims ( id. ¶¶ 23-24, 39). Defendants conclude that there are no documents to support his claims ( id. ¶ 25). Superintendent Conway's sole involvement in these incidents was to commence an investigation of plaintiff's complaints ( id. ¶¶ 38, 40).

Plaintiff went to the Attica health facility the next day from the July 7 incident ( id. ¶ 26; Docket No. 48, Rao Decl.). On July 8, 2010, plaintiff told medical staff that he fell on July 7 after feeling warm and sweaty and fell on the stairs (Docket No. 36, Defs. Statement ¶ 27; Docket No. 48, Rao Decl. ¶ 5; Docket No. 49, Ex. A, pl. medical record, Ambulatory Health Record, July 8, 2010; see also Docket No. 50, Pl. Memo. Ex. A). The only injuries noted on July 8 were a small bruise and an abrasion on plaintiff's right cheek; there was no swelling on the back of his head detected and plaintiff denied nausea or vision problems (Docket No. 36, Defs. Statement ¶ 28; Docket No. 48, Rao Decl. ¶ 5; Docket No. 49, Ex. A, pl. medical record, Ambulatory Health Record, July 8, 2010; see also Docket No. 50, Pl. Memo. Ex. A). Plaintiff was prescribed over-the-counter pain medication and a cold compress (Docket No. 36, Defs. Statement ¶ 29; Docket No. 49, Ex. A, pl. medical record, Ambulatory Health Record, July 8, 2010; see also Docket No. 50, Pl. Memo. Ex. A). Plaintiff sought medical attention on July 21, 2010, a day after the July 20 incident, but at the direction of Attica supervisors rather than at his own request ( id. ¶ 30). Plaintiff was evaluated on July 21 and was found not to have any injuries (Docket No. 36, Defs. Statement ¶ 31) or on July 22 ( id. ¶ 32; see also Docket No. 50, Pl. Memo. Ex. A (pl. medical record, Ambulatory Health Record, July 21, 2010)). Plaintiff sought treatment from an inmate cutting him on July 27 (Docket No. 36, Defs. Statement ¶ 33). Plaintiff did not seek further treatment for his alleged injuries ( id. ¶ 34).

Defendants argue that plaintiff fails to allege an Eighth Amendment cruel and unusual punishment claim (Docket No. 37, Defs. Memo. at 4-8). Plaintiff's medical records do not show any significant injury from either the July 7 or July 20 incidents for the objective element of an excessive force claim ( id. at 7-8). Plaintiff next alleges that he was retaliated against for assisting the Hispanic inmate. Defendants argue that this retaliation claim needs to be examined "with skepticism and particular care" ( id. at 8-9), see Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir.1995). Defendants reject plaintiff's retaliation claim since his speech (advising the Hispanic inmate of the coming officers) was not protected speech ( id. at 9-10), see Duamutefv. O'Keefe, 98 F.3d 22, 24-25 (2d Cir.1996) (no constitutional right to circulate petitions). Defendants next deny that Bosworth's alleged verbal harassment rose to the level of an Eighth Amendment violation and fails to state a claim under the First Amendment as being (at worst) mere threats of harm without actual harm ( id. at 10-11). Next, they argue that plaintiff fails to state an Equal Protection Clause cause of action ( id. at 11-12). Defendants conclude that plaintiff fails to show the personal involvement of defendants Conway or Chappius to make them liable for civil rights violations ( id. at 12-16). Finally, defendants claim entitlement to qualified immunity ( id. at 16-18).

*4 Plaintiff responds that the incidents occurred as he alleged (Docket No. 50). In particular, plaintiff argues that he warned an Hispanic inmate that racist white officers were coming to beat him, leading to plaintiff being beaten for it ( id. at 5-6). He claims that he was denied food and recreation on July 15, 2010, in retaliation, and was assaulted again on July 20 because of this incident ( id. at 7; Docket No. 16, Am. Compl. ¶ 13). He claims that Pritchard, Rademacher, and Swack had caused injuries to plaintiff on July 7 that were sufficiently serious to state an excessive force claim, while Bosworth also created sufficiently serious injuries on July 20 (Docket No. 50, Pl. Memo. at 10-11), arguing that the injuries he suffered were more than de minimis. He claims that he suffered a swollen eye and abrasions, later requiring glasses and had blurry vision (id. at 11, 13, Ex. A; see also Docket No. 49, Ex. A (under seal) July 8, 2010, Ambulatory Health Record), see Griffin v. Crippen, 193 F.3d 89, 91-92 (2d Cir.1999) (reversing finding plaintiff's bruised shin and swelling over knee was de minimis ); Smith v. Coughlin, 917 F.Supp. 168, 171-73 (W.D.N.Y.1995) (Heckman, Mag. J.) (Report & Recommendation) (abrasions under left eye, small laceration near right eye, skin tears on calf, slight swollen wrist from attack by corrections officer is sufficient injury), adopted sub nom. Smith v. Marcellus, 917 F.Supp. 168 (W.D.N.Y.1995) (Skretny, J.). Plaintiff claimed that he was punched in the stomach on July 15, 2010, merely because of the prior incident (Docket No. 50, Pl. Memo. at 11; see Docket No. 16, Am. Compl. ¶ 13). Plaintiff contends that there is a material issue of fact (whether he was assaulted) which should preclude summary judgment (Docket No. 50, Pl. Memo. at 12). Plaintiff does not know any precedent against his recovery for his psychological pain from these incidents ( id. at 13).

Plaintiff claims that he stated a valid retaliatory treatment, that he had a First Amendment right to warn the other inmates ( id. at 17-18). He concludes that he asserted valid harassment ( id. at 18) and Equal Protection claims ( id. at 18-19). As for defendants' qualified immunity claim, plaintiff argues that it is well-settled that corrections officers may not starve inmates, deny them recreation, or beat them for the inmate warning other inmates ( id. at 20), but not citing any authority for this proposition.

Defendants reply that plaintiff's response was conclusory and contains contradictions (Docket No. 52, Defs. Atty. Reply Decl. ¶ 4), not supported by evidence aside from plaintiff's statements ( id. ¶¶ 5-8). Defendants claim that plaintiff only presents conclusory statements (for example) that defendant Sergeants Warner and Dunbar were liable merely because the officers looked for plaintiff earlier ( id. ¶ 9), and plaintiff failed to show that Conway and Chappius were aware of plaintiff's transfer to and from cell block C ( id. ¶ 10).


I. Applicable Standards

A. Summary Judgment

*5 Summary judgment is appropriate only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Ford v. Reynolds, 316 F.3d 351, 354 (2d Cir.2003); Fed.R.Civ.P. 56(a) (effective Dec. 2010). The party seeking summary judgment has the burden to demonstrate that no genuine issue of material fact exists. In determining whether a genuine issue of material fact exists, a court must examine the evidence in the light most favorable to, and draw all inferences in favor of, the non-movant. Ford, supra, 316 F.3d at354. "A dispute regarding a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Lazard Freres & Co. v. Protective Life Ins. Co., 108 F.3d 1531, 1535 (2d Cir.) (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)), cert. denied, 522 U.S. 864 (1997). While the moving party must demonstrate the absence of any genuine factual dispute, Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), the party against whom summary judgment is sought, however, "must do more than simply show that there is some metaphysical doubt as to the material facts.... [T]he nonmoving party must come forward with specific facts showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (emphasis in original removed); Mc-Carthy v. American Intern. Group, Inc., 283 F.3d 121, 124 (2d Cir.2002); Marvel Characters v. Simon, 310 F.3d 280, 285-86 (2d Cir.2002). The opponent to summary judgment may argue that he cannot respond to the motion where it shows, by affidavit, "that, for specified reasons, it cannot present facts essential to justify its opposition, " Fed.R.Civ.P. 56(d).

The Local Civil Rules of this Court require that movant and opponent each submit "a separate, short, and concise" statement of material facts, and if movant fails to submit such a statement it may be grounds for denying the motion, W.D.N.Y. Loc. Civ. R. 56(a) (1), (2) (effective Jan. 1, 2011). The movant is to submit facts in which there is no genuine issue, id. R. 56(a)(1), while the opponent submits an opposing statement of material facts as to which it is contended that there exists a genuine issue to be tried, id. R. 56(a)(2). Each numbered paragraph in the movant's statement will be deemed admitted unless specifically controverted by a correspondingly numbered paragraph in the opponent's statement, id. Each statement of material fact is to contain citations to admissible evidence to support the factual statements and all cited authority is to be separately submitted as an appendix to that statement, id. R. 56(a)(3).

Here, plaintiff is proceeding pro se and as such his pleadings are to be liberally construed, see Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972) (per curiam).

*6 "Federal Rule of Civil Procedure 8(a)(2) requires only a short and plain statement of the claim showing that the pleader is entitled to relief.' Specific facts are not necessary; the statement need only "give the defendant fair notice of what the... claim is and the grounds upon which it rests.' " Bell Atlantic Corp. v. Twombly, [550 U.S. 544, 555], 127 S.Ct. 1955, 1964, (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). In addition, when ruling on a defendant's motion to dismiss, a judge must accept as true all of the factual allegations contained in the complaint. Bell Atlantic Corp., supra , at [555], 550 U.S. 544, 127 S.Ct. 1955, 1964, 167 L.Ed.2d 929, (citing Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508, n. 1, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002); Neitzke v. Williams, 490 U.S. 319, 327, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989); Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974))."

Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam). In Erickson, the Court held that the Tenth Circuit departed from the liberal pleading standards of Rule 8(a)(2) by dismissing a pro se inmate's claims.

"The Court of Appeals' departure from the liberal pleading standards set forth by Rule 8(a)(2) is even more pronounced in this particular case because petitioner has been proceeding, from the litigation's outset, without counsel. A document filed pro se is to be liberally construed, ' [ Estelle v. Gamble, 429 U.S., 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)], and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers, ' ibid. (internal quotation marks omitted). Cf. Fed. Rule Civ. Proc. 8(f) ("All pleadings shall be so construed as to do substantial justice").

551 U.S. at 94; see Boykin v. KeyCorp, 521 F.3d 202, 213-14 (2d Cir.2008). Thus, the pro se plaintiff's complaint has to be construed "more liberally" than one filed by counsel, Boykin, supra, 521 F.3d at 214.

B. Civil Rights Liability and Municipal Parties

Under 42 U.S.C. § 1983, defendants are liable either for their personal involvement in the alleged violation of plaintiff's civil rights or in establishing a policy or custom, implemented by others, that leads to the violation. To state a § 1983 claim, plaintiff must allege the manner in which defendant was personally involved in depriving plaintiffofhis rights, see Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.1995); Wright v. Smith, 21 F.3d 496, 501 (2d Cir.1994); Al-Jundi v. Estate of Rockefeller, 885 F.2d 1060, 1065 (2d Cir.1989). "Personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983, " Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir.1991); see Wright, supra, 21 F.3d at 501; Colon, supra, 58 F.3d at 873; Provost v. City of Newburgh, 262 F.3d 146, 154 (2d Cir.2001). There are several ways to allege personal involvement: plaintiff could claim that defendant had direct participation in the event; plaintiff could claim that defendant failed to remedy the violation after it was noticed; defendant created the policy which lead to the violation or allowed the policy to continue; defendant was grossly negligent in managing subordinates which caused the violation to occur; or defendant exhibited gross negligence or deliberate indifference to plaintiff's rights by failing to act on information indicating that unconstitutional acts were taking place, Wright, supra, 21 F.3d at 501.

C. Cruel and Unusual Punishment

*7 Generally to state a claim under 42 U.S.C. § 1983, the plaintiff needs to show that he or she was denied a constitutional right and that deprivation occurred under the color of state law, e.g., Chambliss v. Rosini, 808 F.Supp.2d 658, 666 (S.D.N.Y.2011) (Gorenstein, Mag. J.). For an excessive force claim under the Eighth Amendment (applicable to prison inmates, Hudson v. McMillan, 503 U.S. 1, 6-7, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992)), a plaintiff has to establish both a subjective element and an objective element, under Hudson, supra, 503 U.S. at 7-8. Under this subjective test, the "core judicial inquiry is set out in [ Whitley v. Albers, 475 U.S. 312, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986)]: whether force was applied in a goodfaith effort to maintain or restore discipline or maliciously and sadistically to cause harm, " id. at 7, and the objective test requires the plaintiff to show that defendants "had a wanton state of mind when engaging in the alleged misconduct'" with the inquiry as to wantonness turning on "whether the alleged conduct involved unnecessary and wanton infliction of pain, " Jones v. Goord, No. 05CV182, 2008 WL 904895, at *3 (W.D.N.Y. Jan. 23, 2008) (McCarthy, Mag. J.) (Report & Recommendation, citations omitted), adopted, 2008 WL 904895, at *1 (Arcara, Ch. J.) (W.D.N.Y. Mar. 31, 2008) (Docket No. 34, Defs. Memo. at 4).

In Hudson, the plaintiff was punched in the mouth, eyes, chest, and stomach without justification, 503 U.S. at 4; see Wilkins v. Gaddy, 559 U.S. 34, ___, 130 S.Ct. 1175, 1178, 175 L.Ed.2d 995 (2010) (per curiam). The Supreme Court distinguished different Eighth Amendment claims, the conditions of confinement or deliberate indifference to medical needs claims from excessive force claims, Hudson, supra, 503 U.S. at 8-9. With the former, a plaintiff would have to show serious injury to satisfy the objective component of each claim, id. at 9. With excessive force claims, the Hudson Court notes that "society's expectations are different. When prison officials maliciously and sadistically use of force to cause harm, contemporary standards of decency always are violated, " id. "This is true whether or not significant injury is evident. Otherwise, the Eighth Amendment would permit any physical punishment, no matter how diabolic or inhuman, inflicting less than some arbitrary quantity of injury, " Id. The Court then said "that is not to say that every malevolent touch by a prison guard gives rise to a federal cause of action. See Johnson v. Glick , 481 F.2d [1028, ] 1033 [(2d Cir.)] (Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates a prisoner's constitutional rights'), [cert. denied sub nom. John v. Johnson, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 324 (1973)], " Hudson, supra, 503 U.S. at 9, concluding that the Eighth Amendment's prohibition against cruel and unusual punishment "necessarily excludes from constitutional recognition de minimis uses of physical force, provided that the use of force is not of a sort "repugnant to the conscience of mankind.'" Whitley [v. Albers ], 475 U.S. [312, ] 327, 106 S.Ct. 1078, 89 L.Ed.2d 251 [(1986)] (quoting Estelle, supra, 429 U.S. at 106) (internal quotation marks omitted), '' Hudson, supra, 503 U.S. at 9-10. A de minimis use of force "will rarely suffice to state a constitutional claim, " Romano v. Howarth, 998 F.2d 101, 105 (2d Cir.1993), and "not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates a prisoner's constitutional rights, " id. (quoting Johnson v. Glick, supra, 481 F.2d at 1033); Griffin, supra, 193 F.3d at91.

*8 The Supreme Court in Hudson reversed the Circuit Court and held that plaintiff's injuriesbruises, swelling, loosened teeth, cracked dental plate-were not de minimis for Eighth Amendment purposes, Hudson, supra, 503 U.S. at 10. Justice Blackmun concurred in the judgment and applauded the majority in rejecting a significant injury requirement for excessive force Eighth Amendment claims, because it applies the Constitution to various kinds of state-sponsored torture that ingeniously evades a serious injury threshold, id. at 13 (Blackmun, J., concurringinjudgment).

In Wilkins, supra, 559 U.S. at ___, 130 S.Ct. at 1176, the Court emphasized that the excessive force analysis is "based on the nature of force rather than the extent of the injury." The plaintiff there was punched, kicked, kneed, choked, and body slammed that he alleged was maliciously and sadistically done without provocation, id. at 1179. In commenting on Hudson, the Wilkins Court noted that "the extent of injury may also provide some indication of the amount of force applied, " 130 S.Ct. at 1178. "Injury and force, however, are only imperfectly correlated, and it is the latter that ultimately counts. An inmate who is gratuitously beaten by guards does not lose his ability to pursue an excessive force claim merely because he has the good fortune to escape without serious injury, " id., at 1178-79. The Court rejected using injury as a proxy for force, id. at 1179.

D. Failure to Protect

"It is widely recognized that all law enforcement officials have an affirmative duty to intervene to protect the constitutional rights of citizens from infringement by other law enforcement officers in their presence.' Anderson v. Branen, 17 F.3d 552, 557 (2d Cir.1994) (citing O'Neill v. Krzeminski, 839 F.2d 9, 11 (2d Cir.1988). An officer who does not personally inflict the injury at the core of an excessive use of force claim may still be liable under § 1983 where the officer fails to intervene to prevent the harm, in spite of a realistic opportunity' to do so, O'Neill, 839 F.2d at 11-12, and observes or has reason to know... that excessive force is being used.' Anderson, 17 F.3d at 557. Whether an officer had sufficient time to intercede or was capable of preventing the harm being caused by another is an issue of fact for the jury unless, considering all the evidence, a reasonable jury could not possibly conclude otherwise.' Id., " Allen v. City of N.Y., 480 F.Supp.2d 689, 694 (S.D.N.Y.2007).

E. First Amendment Retaliation

To establish a First Amendment retaliation claim, plaintiff needs to demonstrate "(1) that his speech or conduct was constitutionally protected, (2) that the defendant took adverse actions against him, and (3) that there was a causal connection between the protected speech and the adverse action, " Gill v. Pidlypchak, 389 F.3d 379, 380 (2d Cir.2004) (quoting Dawes v. Walker, 239 F.3d 489, 492 (2d Cir.2001), overruled on other grounds, Swiekiewicz v. Sorema N.A., 534 U.S. 506, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002)) (Docket No. 37, Defs. Memo. at 9).

F. Qualified Immunity

*9 When confronted by a claim of qualified immunity, one of the first questions for the Court to resolve is whether the facts, taken in the light most favorable to the party asserting the injury, show the official's conduct violated a constitutional right. See Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). As was required by the Saucier Court, this Court first considered the constitutional question, then considered the qualified immunity question, id. But the Supreme Court in Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009), overruled Saucier in requiring courts to first determine whether a constitutional violation occurred before considering whether defendants enjoy qualified immunity. Instead, district courts determine in each case whether to consider first the question of immunity or whether a constitutional violation had occurred, id. at 231-32.

Government officials performing discretionary functions generally are shielded by qualified immunity from liability in their individual capacities, see Frank v. Reilin, 1 F.3d 1317, 1327 (2d Cir.1993), "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). "If it was objectively reasonable for the defendant to believe that his act did not violate the plaintiff's constitutional rights, the defendant may nevertheless be entitled to qualified immunity." Anderson v. Creighton, 483 U.S. 635, 641, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987); Lowth v. Town of Cheektowaga, 82 F.3d 563, 568-69 (2d Cir.1996).

II. Application

A. Summary Judgment

Plaintiff did not file a counterstatement of facts or evidence in an admissible form. Instead, he submits his Memorandum which recites his version of the facts. But the purpose for this Court's Local Civil Rule 56 is to have the statement of the material facts not in dispute and a statement of those facts disputed by the movant to not only show the conflict, but also to indicate the admissible evidence to support the contention about those facts. Here, plaintiff only recites in his Memorandum those facts without showing any admissible evidence (affidavits, documents, or other proof) to support his contention that the facts are as he claims them to be or are disputed. Therefore, this Court deems the facts in defendants' Statement (Docket No. 36) to be admitted.

B. Incidents

The incidents alleged can be considered separately. The question here for each incident is whether the purported use of force raises a constitutional claim under the Eighth Amendment, in particular whether plaintiff established the objective element for an Eighth Amendment excessive force cruel and unusual punishment claim. This is further reduced to whether force was applied to plaintiff and whether sufficient injury occurred to violate the Eighth Amendment.

1. July 7, 2010, Incident

Plaintiff claims that he was bruised, suffered dizzy spells, and blurred vision from being punched in the face and stomach, being choked, and being lifted off the ground by his neck on July 7, 2010 (Docket No. 16, Am. Compl. ¶ 6). The defendants who plaintiff named deny that this incident occurred and any frisk of plaintiff occurred without incident.

*10 Defendants argue that plaintiff failed to supply proof that he was assaulted or to contradict defendants' contentions that he was not assaulted (Docket No. 37, Defs. Memo. at 6-8). There was no use of force report generated from this incident ( see Docket No. 42, Pritchard Decl. ¶ 6). Defendants emphasize the absence of injury to plaintiff, rather than the force applied, arguing instead that there is noproofofanyforceusedatall.

From the uncontested facts from defendants, on July 7, 2010, Sergeant Warner conducted a frisk of plaintiff without incident. Plaintiff reported to medical staff that he fell because he became overheated and hit the back of his head ( e.g., Docket No. 50, Pl. Memo., Ex. A). Had plaintiff filed a counterstatement of facts and other evidence aside from his conclusory allegations, he may have raised an issue of fact on whether there was a use of force or whether the force applied was excessive. But plaintiff did not do so and, under this Court's Local Civil Rule 56(a)(2), defendants' uncontested statement of material facts are deemed admitted and therefore plaintiff fails to establish that force was used. Looking at plaintiff's medical records after that incident merely indicates that he had abrasions on his cheek and, although he claimed to have hit his head (due to a different cause), there was no indication of head injury during that examination (Docket No. 50, Pl. Memo. Ex. A; Docket No. 49, Ex. A, Ambulatory Health Record, July 8, 2010). As for his vision complaints, on July 8 plaintiff did not note any vision problems ( id. ) and at his subsequent vision examination, on September 22, 2010, he was prescribed reading glasses (Docket No. 50, Pl. Memo. Ex. A, Attica Correctional Facility Eye Record, Sept. 22, 2010). The only evidence of injuries beyond this are from plaintiff's statements. Again, plaintiff's failures to oppose formally defendants' statement of facts and failure to introduce contrary evidence in admissible form (or even argue his inability to present such evidence, cf. Fed.R.Civ.P. 56(d)) require this Court to accept defendants' uncontested statement of facts and the injuries from July 7, 2010, are limited to those noted in plaintiff's medical records.

2. July 15, 2010, Starvation

Plaintiff complains that he lost weight and was hungry on July 15, 2010 (Docket No. 16, Am. Compl. ¶ 16), and later that he was moved back to cell block C where he claims he was not allowed to take meals ( id. ¶¶ 19-20). Plaintiff alleges that his identification card was taken following the July 7 incident and he was denied access to the commissary on July 15 because he lacked the card ( id. ¶¶ 11, 5), claiming that an unnamed officer took his identification card. None of the defendants claim that the took plaintiff's identification or held it beyond July 7.

Despite these allegations, plaintifffails to show how defendants failed to feed him for that day or whether that starvation was connected with plaintiff's interaction with the Hispanic inmate. The only connection was the seized identification card, with a new one restored to him by July 21, 2010. Plaintiff fails to state which defendant kept his identification card.

*11 Plaintiff's starvation claim is a conditions of confinement claim under the Eighth Amendment and, unlike the excessive force claims, plaintiff needs to show for the objective element that he suffered extreme deprivations, those beyond routine discomfort inherent with imprisonment, Hudson, supra, 503 U.S. at 9; see Rodriguez v. McGinnis, No. 98CV6031, 2004 U.S. Dist. LEXIS 13585, at *49-51, 2004 WL 1145911 (W.D.N.Y. May 18, 2004) (Siragusa, J.). Plaintiff, at worse, alleges starvation only on one day by the act of an unnamed corrections officer, without offering admissible evidence of that starvation. He has not stated a constitutional deprivation.

3. July 20, 2010, Incident

Plaintiff next complains that, during a frisk on July 20, 2010, that his legs were twisted causing pain (Docket No. 16, Am. Compl. at 5). From defendants' same uncontested facts, on July 20, 2010, Sergeant Dunbar also conducted a frisk search of plaintiff without an untoward incident or an assault. Plaintiff did not seek medical attention after July 20, 2010; rather, prison officials had plaintiff examined on July 21, 2010. Plaintiff's medical records after July 20 do not indicate any injury and he had the evaluation at the request of prison administration and not plaintiff's request (Docket No. 50, Pl. Memo. Ex. A; Docket No. 49, Ex. A, Ambulatory Health Record, July 8, 2010).

4. Psychological Pain

Plaintiff also claims psychological pain from these incidents. The Prison Litigation Reform Act, 42 U.S.C. § 1997e(e), provides that "no Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury" (emphasis added). Thus, plaintiff needed to first establish he suffered physical harm before he can litigate any mental or emotional injury claims arising from those physical injuries. The Prison Litigation Reform Act requires more than a showing of de minimis physical injury to allow an inmate to pursue an emotional or mental injury claim, Moore v. McGinnis, No. 01CV6588, 2004 U.S. Dist. LEXIS 29767, at *28, 2004 WL 2958471 (W.D.N.Y. Dec. 20, 2004) (Siragusa, J.) (plaintiff alleged only de minimis physical injury, thus barred from asserting emotional claim under Prison Litigation Reform Act); see also Mitchell v. Horn, 318 F.3d 523, 533 (3d Cir.2003); Dolberry v. Levine, 567 F.Supp.2d 413, 417-18 (W.D.N.Y.2008) (Larimer, J.) (dismissing pro se inmate's emotional injury claim in absence of physical injury claim). In Dolberry, plaintiff alleged that he was denied showers and cleaning supplies for several weeks, alleging that he suffered a rash as a result. Judge Larimer held that plaintiff did not allege any physical injury and, under the Prison Litigation Reform Act, could not state a claim for emotional or mental injury absent aphysical injury claim, 567 F.Supp.2dat417-18.

As stated above, plaintiff here only asserts de minimis physical injuries from the July 7 and 20, 2010, incidents. These claimed injuries do not suffice to form plaintiff's emotional or mental claims under the Prison Litigation Reform Act. Plaintiff's psychological pain cannot bolster his physical injuries beyond de minimis loss.

5. In Summary

*12 From the record before this Court, and taking all inferences in favor of plaintiff as nonmovant, even if plaintiff had force applied to him during the pat down searches on July 7, 15, and 20, 2010, plaintiff only suffered limited physical injuries that do not rise to a constitutional level. But plaintiff fails to prove that these use of force incidents occurred because he failed to proffer admissible evidence in opposition to defendants' contrary assertions. The alleged physical injuries also were not sufficiently severe to have this Court consider whatever mental or emotional harm he may have suffered under the Prison Litigation Reform Act. Defendants' motion for summary judgment (Docket No. 35) dismissing these claims is granted.

C. Supervisory Response

Plaintiff raises two types of supervisory claims. First, he asserts against Sergeants Dunbar and Warner that they failed to protect him from incidents they observed (Docket No. 50, Pl. Memo. at 14-15). Second, he concludes that Superintendent Conway and Deputy Superintendent Chappius failed to respond when placed on notice through plaintiff's grievance and correspondence ( id. at 16-17).

As for the sergeants' affirmative duty to intervene, one element for this claim is the existence of a constitutional violation or excessive use of force, O'Neill, supra, 839 F.2d at 11; Anderson v. Branen, supra, 17 F.3d at 557. The Supreme Court in City of Los Angeles v. Heller, 475 U.S. 796, 799, 106 S.Ct. 1571, 89 L.Ed.2d 806 (1986) (per curiam), observed that "if a person has suffered no constitutional injury at the hands of the individual police officer, the fact that the departmental regulations might have authorized the use of constitutionally excessive force is quite beside the point, " see Curley v. Village of Suffern, 268 F.3d 65, 71 (2d Cir.2001). The Second Circuit then extended the Heller rationale for limiting liability where no constitutional violation occurred to officers failing to intervene when the alleged violation occurred, Curley, supra, 268 F.3d at 72. Alternatively, the court held that plaintiff there could not create a triable issue of fact to defeat defendants' summary judgment motion "by asserting in conclusory fashion" that defendant officers had a duty to intercede but failed to do so, id.

Here, plaintiff makes conclusory assertions that the sergeants had a duty to protect him on July 7 and 20, 2010. As found above, plaintiff has not stated that a constitutional violation occurred before these defendants to require their intervention.

On the superintendent and deputy superintendent's liability, plaintiff again only makes conclusory allegations that these defendants were personally aware of his relocation movements within Attica and the impact of plaintiff's moves from one cell block to another. Absent proof beyond plaintiff's own statements, this claim fails. Also, under Curley, 268 F.3d at 71 (applying Heller ) supervisory defendants cannot be held liable for inadequate training or supervision when the officers involved in the incident do not violate plaintiff's constitutional rights. Absent a violation, plaintiff's allegations against Conway and Chappius also fails.

D. Retaliation

*13 As for plaintiff's retaliation claims, plaintiff declares generally that he has a First Amendment right to warn his fellow inmates when prison officials are coming, in order for other inmates to stop banned activities (Docket No. 50, Pl. Memo. at 17). Defendants argue that there was no objective evidence that defendants deprived plaintiff of food or recreation or harassed him for warning the Hispanic inmate on July 7, 2010 (Docket No. 52, Defs. Atty. Reply Decl. ¶ 6). Defendants also argue that plaintiff did not have a constitutional right to warn another inmate, thus not establishing one element for a First Amendment retaliation claim that plaintiff's speech rights were violated ( id.; Docket No. 37, Defs. Memo. at 9-10).

Given the prison context where inmate objections to official actions and "the ease with which claims of retaliation may be fabricated, " inmate charges of retaliation are viewed by courts in this Circuit "with skepticism and particular care, " Colon, supra, 58 F.3d at 872; Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir.1983). An inmate's free speech rights may be restricted by the correctional institution if reasonably related to legitimate penological interest, Duamutef, supra, 98 F.3d at 24; see Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). Prison officials have the right, in order to secure the facility, to restrict the ability of one inmate to communicate the movement of corrections officers to other inmates, to avoid one inmate warning others of the arrival of officers for a spot inspection, for example. In Phillips v. Lecuryer, No. 9:08CV878, 2013 U.S. Dist. LEXIS 36452, 2013 WL 1024667 (N.D.N.Y. Feb. 19, 2013) (Baxter, Mag. J.), Magistrate Judge Baxter recently found that an inmate Ralph Buck Phillips' writing that violated prison regulations (attempting to smuggle mail out of the facility through another inmate and sending threatening letters) did not constitute protected activity, id. at *105-06, *97. Cases finding constitutionally protected activities include filing law suits and grievances, Collins v. Goord, 438 F.Supp.2d 399, 419 (S.D.N.Y.2006); Walker v. Schriro, No. 11 Civ. 9299, 2013 U.S. Dist. LEXIS 42551, at *20, 2013 WL 1234930 (S.D.N.Y. Mar. 26, 2013).

Here, the claimed protected activity effectively has one inmate assisting other inmates in hiding illicit activity by warning them that corrections officers were coming. Therefore, the first element for a retaliation claim-that plaintiff's speech was constitutionally protected, see Gill, supra, 389 F.3d at 380-does not exist; defendants' motion for summary judgment dismissing this claim is granted.

E. Qualified Immunity

Alternatively, defendants claim entitlement to qualified immunity. Given that this Court has first considered whether constitutional violations have occurred and found that no such violations happened, this Court need not engage in a qualified immunity analysis.

III. Result of This Order

As a result, defendants' motion for summary judgment (Docket No. 35) is granted. The Court Clerk is to enter judgment and close this case.

*14 The Court hereby certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this Order would not be taken in good faith, and leave to appeal to the Court of Appeals as a poor person is denied. Coppedge v. United States, 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962). Further requests to proceed on appeal as a poor person should be directed, on motion, to the United States Court of Appeals for the Second Circuit, in accordance with Rule 24 of the Federal Rules of Appellate Procedure.


For the reasons stated above, defendants' motion for summary judgment (Docket No. 35) is granted. The Court Clerk is to enter judgment and close this case. As previously stated, this Court hereby certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this Order would not be taken in good faith, and leave to appeal to the Court of Appeals as a poor person is denied. Coppedge v. United States, 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962). Further requests to proceed on appeal as a poor person should be directed, on motion, to the United States Court of Appeals for the Second Circuit, in accordance with Rule 24 of the Federal Rules of Appellate Procedure.

So Ordered.

1995 U.S. Dist. LEXIS 7136

COUNSEL: [*1] HUBERT H. HUMPHREY, III, Attorney General of the State of Minnesota, Attorney for Hubert H. Humphry, III, Judicial System of the State of Minnesota, St. Peter Regional Treatment Center, Gerald Gammell, MD, William Erickson, MD, Thomas Stapleton, M D, the Honorable James L. Mork, Chief Judge Anne Simonett, Judge Jack Davies, Judge Roger Klaphke, Judge Dennis Challeen, and Judge Lawrence Collins, St. Paul, MN, OF COUNSEL: JEROME L. GETZ, Assistant Attorney General.

CONDON & FORSYTH, P.C., Attorneys for British Airways, P.L.C. and Kuwait Airways Corp., New York, NY, OF COUNSEL: STEPHEN J. FEARON, ESQ., MICHAEL J. HOLLAND, ESQ. DUNLAP & SEEGER, P.C., Attorneys for Olmsted County, Raymond Schmitz, Susan Mundahl, Norwest Bank Minnesota, N.A. (the Northwest Bank & Trust), C.O. Brown Agency, Inc., Rochester, MN, OF COUNSEL: GREGORY J. GRIFFITHS, ESQ.

ARTHUR, CHAPMAN, McDONOUGH, KETTERING & SMETAK, P.A., Attorneys for J.C. Penney Insurance Co. and Metropolitan Insurance Co., Minneapolis, MN, OF COUNSEL: EUGENE C. SHERMOEN, JR., ESQ.

SHAPIRO & KREISMAN, Attorneys for Metmor Financial, Inc., Rochester, NY, OF COUNSEL: JOHN A. DiCARO, ESQ.

COSTELLO, COONEY & FEARON, Attorneys [*2] for Travelers Insurance Companies; Hirman Insurance; Commercial Union Insurance Companies, Syracuse, NY, OF COUNSEL: PAUL G. FERRARA, ESQ., ROBERT J. SMITH, ESQ.

SMITH, SOVIK, KENDRICK & SUGNET, P.C., Attorneys for American States Insurance Co. and Prudential Insurance Co., Syracuse, NY, ...

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