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Canales v. Sheahan

United States District Court, W.D. New York

March 28, 2017

LUIS A. CANALES, #10-A-0768, Plaintiff,
v.
M. SHEAHAN, et al., Defendants.

          REPORT AND RECOMMENDATION AND DECISION AND ORDER

          HON. HUGH B. SCOTT United States Magistrate Judge

         I. Introduction

         This case has been referred to the undersigned by Hon. Lawrence J. Vilardo for all pre-trial matters, including preparation of a Report and Recommendation on dispositive motions. (Dkt. Nos. 29, 41.) Currently pending before the Court are the Defendants' motions to dismiss (Dkt. Nos. 42, 44, 48) and Plaintiffs cross-motion to amend/correct (Dkt. No. 60.) For the reasons set forth below, the Court grants Plaintiffs non-dispositive motion in part, and recommends denying Defendants' dispositive motions in their entirety.

         II. Factual Background and Procedural History

         Plaintiff Luis Canales (“Plaintiff”), an inmate in the care and custody of the State Department of Corrections and Community Supervision (“DOCCS”), filed this action against approximately 35 proposed defendants, based upon 22 causes of actions alleging a multitude of violations of his constitutional rights pursuant to 42 U.S.C. § 1983.

         Many of the proposed defendants were dismissed by this Court upon initial screening, (Dkt. Nos. 1, 4), and, after Plaintiff's multiple attempts at amending his original complaint, the second amended complaint is currently the operative pleading. (Dkt. Nos. 6, 10, 24, 28, 32-33, 37.) The claims therein generally assert use of force and retaliation; denial of medical treatment and reasonable accommodation; and denial of library and mail services. (Dkt. No. 32 at 2-3.)

         Defendants have moved to dismiss certain claims contained in the second amended complaint pursuant to Fed.R.Civ.P. 12(b)(6). (Dkt. Nos. 42, 44, 48.) Alternatively, Defendants seek a more definite statement pursuant to Fed.R.Civ.P. 12(e). (Id.)

         In opposition to Defendants' motions, Plaintiff has filed a “cross-motion for leave to file an amended complaint” in which he does not challenge the substance of Defendants' motion to dismiss, but rather requests to amend his complaint for a third time in order to provide a more definite statement to cure the defects raised by Defendants. (Dkt. No. 61, ¶ 2.)[1]

         Attached to Plaintiff's cross-motion is a proposed third amended complaint (Dkt. No. 60, Ex. A), which pares down the substance of his claims, eliminating Bartlett, Brois, Canfield, Chappius, Elmer, Evans, Fennessey, Hilman, Koenigsmann, Lee, Mackay, McCooey, Muccigrasso, Prack, Rhodes, Snyder, VonHagn, and Wenderlich as defendants; and presents eleven sets of claims or “causes of action” against the remaining defendants. He has abandoned his claims relating to interference with access to library and mail services, and has re-asserted his Eighth Amendment and Due Process claims, as discussed in further detail below.

         For the reasons below, it is recommended that Defendants' motions to dismiss be denied, and their alternative motion for a more definite statement be denied as moot. Plaintiff's cross-motion for leave to amend is granted in part.

         III. Discussion

         A. General Principles of Law

         In reviewing a motion to dismiss under Rule 12(b)(6), the Court must accept the factual allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. See Nechis v. Oxford Health Plans, Inc., 421 F.3d 96, 100 (2d Cir. 2005). It need not accept as true, however, allegations that are conclusory, that is, bare, unadorned allegations that lack specificity. Ashcroft v. Iqbal, 556 U.S. 662, 680 (2009). To survive a motion to dismiss, “a complaint must contain sufficient factual matter...'to state a claim to relief that is plausible on its face.'” Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In other words, the factual allegations must permit the Court “to infer more than the mere possibility of misconduct.” Iqbal, 556 U.S. at 679.

         Because Plaintiff is proceeding pro se, the Court must “construe [the] complaint liberally and interpret it to raise the strongest arguments that it suggests.” Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010) (citation and internal quotations omitted).

         Plaintiff brings this action under 42 U.S.C. § 1983, which imposes liability on anyone who, under color of state law, deprives a person “of any rights, privileges, or immunities secured by the Constitution and laws.” 42 U.S.C. § 1983. In other words, to recover under this section, a plaintiff must show a violation of a federal constitutional or statutory right.

         Moreover, the personal involvement of defendants in an alleged constitutional deprivation is a prerequisite to an award of damages under § 1983. Gaston v. Coughlin, 249 F.3d 156, 164 (2d Cir. 2001); Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995);[2]Al-Jundi v. Estate of Rockefeller, 885 F.2d 1060, 1065 (2d Cir. 1989). Personal involvement may be shown by evidence that: (1) the defendant participated directly in the alleged constitutional violation; (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong; (3) the defendant created or permitted the continuation of a policy or custom under which unconstitutional practices occurred; (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts; or (5) the defendant exhibited deliberate indifference to the rights of inmates by failing to act on information indicating unconstitutional acts were occurring. Colon, 58 F.3d at 873.2 “There is no respondeat superior liability in § 1983 cases.” Green v. Bauvi, 46 F.3d 189, 194 (2d Cir. 1995). Thus, supervisory officials may not be held liable merely because they hold a position of authority. Black v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996).

         B. Leave to Amend

         It appears from his submissions that Plaintiff acknowledges that many of his original 22 causes of action fail to state a claim upon which relief could be granted, and now cross-moves for leave to file a third amended complaint. Defendants oppose this motion on the ground that his proposed amendment would be futile. (Dkt. No. 62.)

         Leave to file an amended complaint “shall be freely given when justice so requires.” Fed.R.Civ.P. 15(a). Only “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party . . . [or] futility of amendment” will result in the court's denial of a motion for leave to amend. See Foman v. Davis, 371 U.S. 178, 182 (1962); Dougherty v. Town of North Hempstead Bd. of Zoning Appeals, 282 F.3d 83 (2d Cir. 2002); Milanese v. Rust-Oleum, 244 F.3d 104, 110 (2d Cir. 2001).[3] A district court need not grant leave if amendment would be futile, Reed v. Friedman Mgmt. Corp., 541 Fed.Appx. 40, 41 (2d Cir. 2013), i.e., if the proposed claims could not withstand a motion to dismiss. Dougherty, 282 F.3d at 88 (stating that an “amendment to a pleading will be futile if a proposed claim could not withstand a motion to dismiss pursuant to Rule 12(b)(6)”). Thus, the question before the Court is whether Plaintiffs' proposed claims can withstand a Rule 12(b)(6) motion to dismiss for failure to state a claim.[4]

         Much like his previous submissions, Plaintiff's proposed third amended complaint is difficult to discern-it is comprised of two “factual statements” and eleven “causes of action” that are not successively numbered. (Dkt. No. 60.) For that reason the Court will examine Plaintiff's claims by subject matter and defendant.

         1. Personal Involvement: Supervisory Liability

         As a threshold matter, Defendants argue that Plaintiff has not adequately pled supervisory liability with respect to certain named defendants. (Dkt. No. 62 at 4-5.) For the following reasons, the Court agrees, denying Plaintiff's motion to amend his complaint to include supervisory liability claims against defendants Griffin, Hungerford, Sheahan, and Venettozzi.

         In the third amended complaint, Plaintiff states that defendants Griffin and Sheahan, former Superintendent and Deputy Superintendent for Security of Southport Correctional facility (“Southport”), respectively, were personally involved in an excessive force incident because they had received a written complaint about a corrections officer's previous conduct and took no action in response to that information, thereby permitting a future assault against Plaintiff to occur. (Dkt. No. 60 at 10-11.)

         Plaintiff's allegations are insufficient under the 12(b)(6) standard, and also fails as a basis for granting leave to amend under Grullon v. City of New Haven, 720 F.3d 133, 140-41 (2d Cir. 2013).

         In Grullon, the inmate-plaintiff's complaint lacked any allegations concerning the warden's personal involvement, but in opposition to the warden's motion to dismiss, plaintiff attached a copy of a letter he had written to the warden complaining of the conditions of his confinement and requested an opportunity to amend the complaint. 720 F.3d at 136-37. In concluding that the district court erred in dismissing the plaintiff's claims on personal involvement grounds without granting him leave to file an amended complaint, the Second Circuit cautioned that “[a]t the pleading stage, even if [the plaintiff] had no knowledge or information as to what became of his Letter after he sent it, he would be entitled to have the court draw the reasonable inference if his amended complaint contained factual allegations indicating that the Letter was sent to the Warden at an appropriate address and by appropriate means that the Warden in fact received the Letter, read it, and thereby became aware of the alleged conditions of which Grullon complained.” Id. at 141.

         Grullon is easily distinguishable from the case here, where Plaintiff has attached a proposed amended complaint in what amounts to be his third opportunity to amend and, despite his ample opportunities to do so, he has failed to articulate the claim of personal involvement based on the alleged letter(s). Rather, he has only set forth the following allegation: “the Superintendents] had received written complaint of the [sic] CO. Myers, and other officers'] use of excessive force against other inmates & was advised that the officer[s] should be discharged or reassigned due to persistent complaint[s].” (Dkt. No. 60 at 10-11.) Leave to amend here would be futile based on these threadbare allegations, and this finding appears to be consistent with a number of post-Grullon district court opinions dismissing complaints that base a claim of personal involvement solely on the supervisory prison official's receipt of a complaint or grievance. See Guillory v. Cuomo, 616 Fed.Appx. 12, 14 (2d Cir. 2015) (summary order) (affirming dismissal where plaintiff “did not allege when and where the letters were sent, what they said, or how they were sent”), accord, Flynn v. Ward, No. 15-CV-1028, 2016 WL 1357737, at *13 (N.D.N.Y. Apr. 5, 2016) (“While cognizant of Grullon, the Court finds that, as presently pleaded, plaintiff has failed to establish that Goppert was personally involved in any constitutional deprivation. While the memoranda contain Goppert's name, plaintiff has failed to plead facts establishing where the memoranda were sent, by what means they were forwarded and what response, if any, he received from Goppert. Without more, the allegations are not enough to allege personal involvement in any constitutional deprivation.”).

         Accordingly, Plaintiff has not sufficiently alleged supervisory liability on behalf of Griffin and Sheahan, [5] and any amendment to include such a claim in the proposed third amended complaint would be futile. See Grullon, 720 F.3d at 140 (“Leave to amend may properly be denied if the amendment would be futile”); see also Ruotolo v. City of N.Y., 514 F.3d 184, 191 (2d Cir. 2008) (leave to amend may be denied plaintiff has repeatedly failed to cure deficiencies through prior amendments).

         Plaintiff next claims that Hungerford caused injury to Plaintiff by not supervising the gallery thereby failing to witness the alleged assault on him by corrections officers on August 8, 2011. He also claims that Hungerford neglected to move Plaintiff to another housing area “away from the risk of being retaliate[d]” against. (Dkt. No. 60 at 12.)[6]

         “An allegation that a defendant failed to adequately train or supervise subordinates implicates the fourth Colon factor, i.e., that ‘the defendant was grossly negligent in supervising subordinates who committed the wrongful acts.'” Samuels v. Fischer, 168 F.Supp.3d 625, 638 (S.D.N.Y. 2016) (quoting Colon, 58 F.3d at 873). To support a finding of personal involvement on that basis,

Plaintiff must show that the defendant knew or should have known that there was a high degree of risk that his subordinates would behave inappropriately, but either deliberately or recklessly disregarded that risk by failing to take action that a reasonable supervisor would find necessary to prevent ...

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