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Hurst v. Perez

United States District Court, S.D. New York

January 13, 2017

KEITH I. HURST, Plaintiff,
v.
SUPERINTENDENT ADA PEREZ and C.O. JILL GRISENTHWAITE, Defendants.

          OPINION AND ORDER

          Vincent L. Briccetti United States District Judge

         Plaintiff 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 medical care.

         Now pending is defendants' motion to dismiss the second amended complaint (“SAC”) pursuant to Rule 12(b)(6). (Doc. #38).

         For the reasons set forth below, the motion is GRANTED.

         This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331.

         BACKGROUND

         For 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.

         Plaintiff 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.[1] The assailants told plaintiff that if he reported the attack to prison officials, he and his family “would get hurt.” (Id. at 13).

         The 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).

         Plaintiff 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.

         DISCUSSION

         I. Standard of Review

         In 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 679.

         To 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.

         The 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.

         II. Eighth Amendment Claims Under Section 1983

         “To 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.

         A. Failure to Protect Claim

         Plaintiff 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 ...


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