United States District Court, S.D. New York
KEITH I. HURST, Plaintiff,
SUPERINTENDENT ADA PEREZ and C.O. JILL GRISENTHWAITE, Defendants.
OPINION AND ORDER
Vincent L. Briccetti United States District Judge
Keith I. Hurst, proceeding pro se and in forma
pauperis, brings this action under 42 U.S.C. §
1983, alleging that while incarcerated at Downstate
Correctional Facility (“Downstate”), defendants
Superintendent Ada Perez and Corrections Officer
(“CO”) Jill Grisenthwaite violated
plaintiff's constitutional rights by failing to protect
him from attack by two other inmates and denying him adequate
pending is defendants' motion to dismiss the second
amended complaint (“SAC”) pursuant to Rule
12(b)(6). (Doc. #38).
reasons set forth below, the motion is GRANTED.
Court has subject matter jurisdiction pursuant to 28 U.S.C.
purposes of ruling on a motion to dismiss, the Court accepts
all factual allegations of the SAC as true, and draws all
reasonable inferences in plaintiff's favor.
claims that on May 18, 2015, CO Grisenthwaite was escorting
plaintiff and approximately thirty-six other inmates from
“chow” back to the inmates' “dorm,
” when she allegedly went inside to unlock the door
leaving the inmates outside in a courtyard unattended. (SAC
at 2). As the inmates began walking inside, two unknown
inmates approached plaintiff from behind and cut him on both
sides of his face and neck with sharp objects. The assailants
told plaintiff that if he reported the attack to prison
officials, he and his family “would get hurt.”
(Id. at 13).
next morning, plaintiff reported the incident and was taken
to the Downstate emergency room and examined by Downstate
medical personnel. Plaintiff claims a physician measured his
cut and said it was six inches long. Plaintiff also claims
Downstate medical personnel said he needed stitches, but did
not provide them because it was “too late, ” and
that he should have been transferred to an outside hospital,
but was not. (SAC at 3).
was then moved to protective custody and Downstate personnel
investigated the cutting incident. Plaintiff claims he does
not know why he was attacked and the incident was unexpected.
Standard of Review
deciding a Rule 12(b)(6) motion, the Court evaluates the
sufficiency of the operative complaint under the
“two-pronged approach” articulated by the Supreme
Court in Ashcroft v. Iqbal, 556 U.S. 662, 679
(2009). First, plaintiff's legal conclusions and
“[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, ” are
not entitled to the assumption of truth and are thus not
sufficient to withstand a motion to dismiss. Id. at
678; Hayden v. Paterson, 594 F.3d 150, 161 (2d Cir.
2010). Second, “[w]hen there are well-pleaded factual
allegations, a court should assume their veracity and then
determine whether they plausibly give rise to an entitlement
to relief.” Ashcroft v. Iqbal, 556 U.S. at
survive a Rule 12(b)(6) motion, the allegations in the
complaint must meet a standard of “plausibility.”
Id. at 678; Bell Atl. Corp. v. Twombly, 550
U.S. 544, 564 (2007). A claim is facially plausible
“when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. at 678. “The plausibility standard
is not akin to a ‘probability requirement, ' but it
asks for more than a sheer possibility that a defendant has
acted unlawfully.” Id.
Court must liberally construe submissions of pro se
litigants, and interpret them “to raise the strongest
arguments that they suggest.” Triestman v.
Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006)
(per curiam) (internal quotation marks and citation omitted).
Applying the pleading rules permissively is particularly
appropriate when, as here, a pro se plaintiff
alleges civil rights violations. See Sealed Plaintiff v.
Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008).
“Even in a pro se case, however . . .
threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not
suffice.” Chavis v. Chappius, 618 F.3d 162,
170 (2d Cir. 2010) (internal quotation marks and citation
omitted). Nor may the Court “invent factual
allegations” plaintiff has not pleaded. Id.
Eighth Amendment Claims Under Section 1983
state a claim under § 1983, a plaintiff must allege (1)
the deprivation of a right secured by the Constitution or
laws of the United States (2) which has taken place under
color of state law.” Rodriguez v. Weprin, 116
F.3d 62, 65 (2d Cir. 1997). Plaintiff alleges Eighth
Amendment violations under two distinct theories: failure to
protect and denial of adequate medical treatment.
Failure to Protect Claim
claims defendants violated his Eighth Amendment rights by
failing to protect him from attack by two other inmates.
Defendants argue that plaintiff fails to state a claim
because he does not allege he was subject to a serious risk
of harm, or ...