United States District Court, S.D. New York
ARTHUR R. MOLINA, Plaintiff.
THE COUNTY OF WESTCHESTER; CORRECTION OFFICER SARAIREH, SHIELD NO. 1580 and CO. SANTORA, SHIELD NO. 1598. Defendants.
OPINION AND ORDER
Vincent L. Briccetti United States District Judge
Arthur R. Molina, proceeding pro se and in forma
pauperis, brings this action under 42 U.S.C. §
1983, alleging defendants violated his constitutional rights
while he was incarcerated at Westchester County Jail, by
failing to protect him from assault by another inmate.
pending is defendants' motion to dismiss the complaint
pursuant to Rule 12(b)(6). (Doc. #17).
reasons set forth below, the motion is GRANTED. However,
plaintiff is granted leave to file an amended complaint, with
the limitations explained below.
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 complaint as true, and draws
all reasonable inferences in plaintiffs favor.
March 8, 2016, while plaintiff was an inmate at Westchester
County Jail, he was attacked by another inmate, "Mr.
Tucker, " who had recently been moved from the Special
Housing Unit ("SHU") to the cell next to
plaintiffs. Specifically, plaintiff alleges while he was
"walking the yard, " Tucker "ran up from
behind, . . and attacked [him, ] hitting [him], with closed
fists, " and that Tucker's "intention [was] to
cause plaintiff serious bodily harm." (Compl. at S),
Plaintiff alleges Tucker carried out this assault because,
five minutes earlier, another inmate told Tucker that if he
attacked someone, he would be moved to another cell block.
alleges correction officers Saraireh and Santora were
"not walking the rec/yard and sitting in the doorway
that enters the rec/yard therefor[e] could not see or hear
what was going on in the rec/yard." (Compl. at 11). In
addition, he alleges Saraireh and Santora "knew of the
risk to [plaintiff ]s safety and [were] negligent for not
tryin[g] to prevent the assault before it happen[ed]."
(Compl. at 9). He alleges they "had reasonable knowledge
to know that an incident was tak[ing] place, " but
"waited to the last minute to defuse the incident."
suffered several injuries and was taken to the emergency
room, where he received medical care. When he returned to
Westchester County Jail, he was told he "would not face
any disciplinary action, " and that the inmate who
attacked him would be put back in SHU. (Compl. at 9). He was
also told that "the facility [was going to] press
charges." (Id. at 10).
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, plaintiffs 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; Havden 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.
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 permissivelv 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
Failure to Protect Claim
argue plaintiff has failed to state a constitutional
violation for failure to protect him against assault by
Court agrees, A claim for deliberate indifference brought by
a convicted prisoner "is analyzed under the Eighth
Amendment." Caiozzo v. Koreman, 581 F.3d 63, 69
(2d Cir. 2009) (overruled on other grounds by Darnell v.
Pineiro, 849 F.3d 17 (2d Cir, 2017)). whereas "[a]
pretrial detainee's claims ... are governed by the Due
Process Clause of the Fourteenth Amendment." Darnell
v. Pineiro, 849 F.3d at 29.
state a claim for deliberate indifference, whether under the
Eighth or Fourteenth Amendment, plaintiffs allegations must
satisfy a two-prong test. First, the plaintiff must plausibly
allege he suffered a sufficiently serious constitutional
deprivation. Second, the plaintiff must plausibly allege that
the defendant acted with deliberate indifference. Taylor
v. Goorde, 548 Fed.Appx. 696, 698 (2d Cir. 2013)
(summary order) (convicted prisoner); Darnell v. Pineiro.
849 F.3d at 29 (pretrial detainee).
respect to the first prong, the standard is the same whether
the claim is brought by a convicted prisoner or a pretrial
detainee, "Under both the Eighth and Fourteenth
Amendments, to establish an objective deprivation, 'the
inmate must show that the conditions, either alone or in
combination, pose an unreasonable risk of serious damage to
his health."" Darnell v. Pineiro, 849 F.3d
at 30 (quoting Walker v. Schult, 717 F.3d 119, 125
(2d Cir, 2013)), "There is no "static test' to
determine whether a deprivation is sufficiently serious;
instead, 'the conditions themselves must be evaluated in
light of contemporary standards of decency."" Id-
(quoting Blissett v. Coughiin, 66 F.3d 531, 537 (2d
respect to the second prong, however, the legal standards are
different for convicted prisoners and pretrial detainees. See
Darnell v. Pineiro, 849 F.3d at 32-36.
convicted prisoners, to whom the Eighth Amendment applies, a
corrections officer acts with deliberate indifference when he
subjectively "has knowledge that an inmate
faces a substantial risk of serious harm and he disregards
that risk by failing to take reasonable measures to abate the
harm." Haves v. N.Y.C. Dep't of Corr.. 84
F.3d 614, 620 (2d Cir. 1996). The officer "must both be
aware of facts from which the inference could be drawn that a
substantial risk of serious harm exists, and he must also
draw the inference." Cuoco v. Moritsugu, 222
F.3d 99, 107 (2d Cir. 2000).
for pretrial detainees, to whom the Fourteenth Amendment
applies, the second prong "of a deliberate indifference
claim is defined objectively." Darnell v.
Pineiro, 849 F.3d at 35 (emphasis added). A
"pretrial detainee must prove that the
defendant-official acted intentionally ... or recklessly
failed to act with reasonable care to mitigate the risk . . .
even though the defendant-official knew, or should have
known, " of the risk of harm. Id. Thus, unlike
the Eighth Amendment, the Due Process Clause of the
Fourteenth Amendment "can be violated when an official
does not have subjective awareness that the official's
acts (or omissions) have subjected the pretrial detainee to a
substantial risk of harm." Id.
defendants presume, without explaining, that plaintiff was a
convicted prisoner, not a pretrial detainee, during the
relevant period. Because neither party has clearly
articulated whether plaintiff was a convicted prisoner or a
pretrial detainee at the time of the alleged incident, the
Court will evaluate plaintiffs complaint under both
the applicable standards, the Court concludes plaintiffs
allegations are sufficient with respect to the first prong of
the deliberate indifference claim, but are insufficient as to
the second prong, A. Sufficiently Serious Constitutional
alleges defendants Saraireh and Santora did not
"walk" the area where he was attacked, and instead
sat "in the doorway" and that they
"therefor[e] could not see or hear what was going on in
the rec/yard, "' (Compl, at 11), In addition, in his
opposition papers, plaintiff states there was an
"absence of any correctional officers .. . present or
within any plain visible view at any time in the recreational
yard[, ] thus violating the procedures." (Opp. Br.
failure of a correction officer to oversee prisoners,
intervene in an attack, or otherwise fail to abide by prison
safety protocols may under certain circumstances create a
condition which poses a substantial risk of serious harm thus
constituting a sufficiently serious constitutional violation.
See, e.g., Fernandez v. N.Y.C.
Dep't of Corr., 2010 WL 1222017, at *4 (S.D.N.Y.
Mar. 29, 2010) (finding complaint sufficiently alleged
substantial risk of harm where it was "possible that had
[a corrections officer] been in the dorm area at the time of
[plaintiffs] attack, he could have prevented or interrupted
the attack"); Rennalls v. Alfredo, 2015 WL
5730332. at *4 (S.D.N.Y. Sept. 30, 2015) (the Court was
"willing to assume, given the early stage in th[e)
Action. Plaintiff ha[d] plausibly alleged that
[defendant's] actions may have put Plaintiff at a
substantial risk of serious harm, " where plaintiff
alleged one of the defendants failed to comply with a safety
construing plaintiffs allegations liberally and drawing all
reasonable inferences in his favor, the Court concludes
plaintiff has plausibly alleged facts from which a
sufficiently serious constitutional violation could be
mentioned previously, the second prong of a deliberate
indifference claim differs depending on whether plaintiff is
a convicted prisoner or a pretrial detainee. To survive a
motion to dismiss, a convicted prisoner must plausibly allege
the defendant(s) subjectively knew what they had
done-here, their failure to intervene in the inmate-on-inmate
attack-was unreasonable. A pretrial detainee, on the other
hand, must plausibly allege the conduct complained of was
objectively unreasonable, be., not reasonable under
plaintiff alleges defendants Saraireh and Santora "knew
of the risk to [his] safety and [were] negligent for not
tryin[g] to prevent the assault before it happen[ed]."
(Compl. at 9). He further alleges the corrections officers
"had reasonable knowledge to know that an incident was
tak[ing] place, " but "waited to the last minute to
defuse the incident." (Id.). However, plaintiff
does not allege or explain how Saraireh or Santora learned of
this risk or how plaintiff knows they became aware of this
risk. These allegations are insufficient to show either
objective or subjective deliberate indifference for several
such conclusory allegations of defendants' knowledge are
insufficient. See Houston v. Nassau Cty, 2012 WL
729352, at *6 (E.D.N.Y.Mar. 7, 2012) ("Although
plaintiff alleges that the County was '[a]ware of
plaintiff being at risk of being attacked, ' . .. this
conclusory allegation is insufficient to maintain a Section
1983 deliberate indifference claim.").
plaintiff alleges defendants were merely
"negligent" in their actions, (Compl. at 9).
Negligence is insufficient to state a Section 1983 violation
under either the subjective or objective standard. Haves
v. N. Y.C. Dep't of Com, 84 F.3d at 620 ("to
state a cognizable section 1983 claim, the prisoner must
allege actions or omissions sufficient to demonstrate
deliberate indifference; mere negligence will not
and most significantly, the allegations of the complaint
suggest the attack happened quickly and with very little
warning. Specifically, plaintiff alleges "at 9:50
AM" the inmate who attacked him was advised "to
attack someone in the yard so he [would] be moved" to
another housing block, (Compl. at 8). Plaintiff alleges the
attack then took place five minutes later, at 9:55 a.m.
(See Id. at 2). Plaintiff does not allege
any defendant corrections officer heard this advice or was
otherwise aware or should have been aware of this advice. It
is implausible defendants themselves, or reasonable
corrections officers in their place, would have learned of
the likelihood of an attack and been able to do something to
prevent it within such a short period of time. Moreover,
plaintiff does not allege he expressed fear for his safety
prior to the attack or provide any other reason why any
correction officer should have known there was danger of an
attack. "Absent clear notice of a risk of harm to the
prisoner, courts routinely deny deliberate indifference
claims based upon surprise attacks/' Fernandez v.
N.Y.C. Dep't of Com, 2010 WL 1222017, at *4
(internal quotation marks omitted). In addition, plaintiff
does not say how long the alleged attack lasted. He states
only that he "t[ook] multiple blows to the head and face
causing a concussion, " and that he "awoke to find
the attacker being held on the wall by CO. Santora, "
(Compl at 9). There are therefore insufficient allegations to
suggest defendants Saraireh and Santera waited an
unreasonable amount of time before they
the circumstances alleged, it is not plausible either that
defendants subjectively knew, or that a reasonable
corrections officer in their place should have known, of
any-substantial risk to plaintiff, or would have been able to
take actions that would have prevented the attack.
result, plaintiff has failed plausibly to allege the second
prong of the failure to protect standard under either the
Eighth or the Fourteenth Amendment, Accordingly, plaintiffs
Section 1983 failure to protect claim against defendants
Saraireh and Santora is dismissed.
argue plaintiff has failed to state a claim against
Westchester County ("the County") under Monell
v. Department of Social Services, 436 U.S. 658
municipality like the County is liable under Section 1983
only "when execution of a government's policy or
custom, whether made by its lawmakers or by those whose
edicts or acts may fairly be said to represent official
policy, inflicts the [plaintiffs] injury." Monell v.
Dep't of Soc. Servs., 436 U.S. at 694. To state a
Monell claim, a plaintiff need not allege the policy
or custom itself is unconstitutional; rather, liability
exists when a municipal policy is valid but the
municipality's actual practice is not. Amnesty
America v. Town of W. Hartford, 361 F.3d 113, 125-26 (2d
Cir. 2004) (practice of using excessive force can be basis
for municipal liability even though city's policy on use
of force is itself constitutional).
Monell claims are not subject to a
'heightened' pleading standard beyond that defined in
Rule 8(a)(2), such claims nevertheless must meet the
plausibility requirements of Bed Atlantic Corp. v.
Twombly, 550 U.S. 544, 572 (2007), and Ashcroft v.
Iqbal, 556 U.S. 662, 678, (2009);' Guzman v.
United States. 2013 WL 5018553, at *4 (S.D.N.Y.
September 13, 2013) (quoting Leatherman v. Tarrant Cty.
Narcotics Intelligence and Coordination Unit, 507 U.S.
163, 168 (1993)). "In other words, boilerplate
allegations will not suffice." Id. (internal
quotation marks omitted). In sum, without more, "ft]he
allegations [a defendant] acted pursuant to a 'policy,
" without any facts suggesting the policy's
existence, are plainly insufficient." Missel v. Cty.
of Monroe, 351 F.App'x 543, 545-46 (2d Cir. 2009)
(summary order) (citing Dwares v. City of New York,
985 F.2d 94, 100-02 (2d Cir. 1993)).
plaintiff alleges only that the individual defendants'
failure to "walk[J the rec-yard" and "wait
to the last minute to defuse the incident" were
"part of a policy[, ] practice, and custom."
(Compl. at 9).
the legal standards just outlined, plaintiffs boilerplate
allegations against the County are plainly insufficient.
Accordingly, plaintiffs claims against the County are
State Law Claims
argue any state law tort claims liberally construed from
plaintiffs complaint-such as causes of action for negligence
or negligent infliction of emotional ...