United States District Court, S.D. New York
OPINION AND ORDER
VINCENT L. BRICCETTI UNITED STATES DISTRICT JUDGE.
Tayden Townsley, proceeding pro se and in forma
pauperis, brings this action under 42 U.S.C § 1983
against defendants Superintendent William A. Lee, Lieutenant
Mark A. Tokarz, Sergeant Neil Yando, corrections officer
("CO.") Robert Snedeker, CO. Warren Freeman, CO.
James Lawyer, CO. William Stevens, Investigator Frank Ortiz,
and the Estate of Dr. Herbert E. Goulding, alleging
defendants used excessive force, failed to protect plaintiff,
conducted an unlawful investigation, and were deliberately
indifferent to plaintiffs serious medical needs in violation
of his Eighth and Fourteenth Amendment rights.
the Court is defendants' motion to dismiss the complaint
pursuant to Rule 12(b)(6). (Doc. #29).
reasons set forth below, the Rule 12(b)(6) motion to dismiss
is GRANTED as to defendants Lee, Tokarz, and Ortiz; as to
defendants Estate of Dr. Goulding, Yando, Snedeker, Freeman,
Lawyer, and Stevens, the motion to dismiss is converted to a
motion for summary judgment. Fed.R.Civ.P. 12(d), 56, and that
motion is also GRANTED.
defendant Ortiz only, the Court sua sponte grants
plaintiff leave to file an amended complaint, as further
Court has subject matter jurisdiction under 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. In addition to
the facts alleged in the complaint, "[i]n considering a
motion to dismiss for failure to state a claim pursuant to
Rule 12(b)(6), a district court may consider .. . documents
attached to the complaint as exhibits, and documents
incorporated by reference in the complaint." DiFolco
v. MSNBC Cable L.L.C.. 622 F.3d 104, 111 (2d Cir. 2010).
relevant times, plaintiff was incarcerated at Green Haven
Correctional Facility ("Green Haven").
plaintiffs allegations as true for purposes of this motion,
on March 21, 2013, plaintiff was stopped and searched while at
"J-School" (Compl. ¶ 2), a facility at Green
Haven containing the law library, inmate organizations and
programs, and counseling and physical therapy units. See
Jackson v. Goord, 664 F.Supp.2d 307, 320 (S.D.N.Y.2009)
(describing Green Haven's J-School). Plaintiff had with
him a folder containing legal documents. Defendant CO.
Freeman took plaintiffs legal files from another officer who
was searching plaintiff, and asked the officer why he was
being "so gentle" with plaintiffs belongings.
(Compl. ¶ 2). Freeman dumped plaintiffs legal paperwork
out of the folder and shoved plaintiff toward the wall.
Freeman threatened plaintiff and attempted to provoke
plaintiff into fighting him.
filed a written complaint with Superintendent Lee regarding
the March 21, 2013, incident with CO. Freeman.
time, plaintiff was the Green Haven inmate liaison committee
representative for his housing block. As an inmate liaison
committee representative, plaintiff attended monthly meetings
with Green Haven's administrative executive team, which
included the superintendent or his designee, all deputy
superintendents, and corrections officers of the rank of
captain or lieutenant. At these meetings, plaintiff and the
other inmate liaison committee representatives raised the
issue of physical assaults and harassment of inmates by
corrections officers, particularly incidents occurring in
specific parts of the facility and during particular shifts.
Plaintiff also encouraged inmates to report any misconduct by
filing a grievance or complaint.
claims he witnessed or otherwise became aware of several
incidents he reported directly to the superintendent,
including claims of harassment by Freeman. For example,
Freeman allegedly took two watches from inmates, and
threatened to deprive other inmates of recreation time if
they did not relinquish their cigarettes. Plaintiff feared
his filing of complaints against Freeman were the motivation
for Freeman's actions on March 21, 2013. In plaintiffs
complaint to Superintendent Lee regarding that incident,
plaintiff sought protection from retaliation, threats,
harassment, and intimidation resulting from plaintiffs
reports of officer misconduct.
April 24, 2013, defendant Lieutenant Tokarz responded by
letter to plaintiff on behalf of Superintendent Lee. Tokarz
informed plaintiff that a letter of complaint was not the
appropriate mechanism to address the concerns of other
inmates. Tokarz also memorialized the actions he had taken in
response to plaintiffs complaint. Tokarz said he interviewed
plaintiff on April 17, 2013, and subsequently spoke with all
staff allegedly involved in the March 21, 2013, incident each
of whom submitted a written statement denying plaintiffs
version of events. Tokarz determined there was no evidence to
support plaintiffs claims of wrongdoing, and considered the
matter to be addressed and resolved.
March 25, 2013, plaintiff wrote to Brian Fischer, then the
Commissioner of the Department of Corrections and Community
Supervision ("DOCCS"), regarding the processing of
plaintiff s grievances. Karen Bellamy, Director of the Inmate
Grievance Program ("IGP"), responded and informed
plaintiff that he had not filed a grievance regarding the
March 21, 2013, incident. Furthermore, she instructed
plaintiff to see an IGP supervisor if he wished to file a
grievance because it could not be filed directly through
6, 2013, plaintiff was allegedly attacked and beaten by
corrections officers while attempting to go to his evening
program assignment. Plaintiff had been released too late from
his housing block to join the group heading to J-School. As a
result, plaintiff was told to return to his housing block,
but was then authorized by an unnamed CO. to line up with the
neighboring housing block so that he would be able to join
his group at J-School. Under the impression that plaintiff
had left his housing block without permission, defendant
Sergeant Yando isolated plaintiff from the group and ordered
him to put his hands on the wall. With plaintiffs hands on
the wall, defendant Freeman struck plaintiff on his side.
Defendant Lawyer grabbed plaintiff by the waist, and
defendants Snedeker and Stevens rushed plaintiff, knocking
him to the ground. Plaintiff momentarily lost consciousness,
waking up to officers holding him on the ground, and Snedeker
jabbing plaintiff along his right side with a baton.
implored the officers to stop and pleaded for help. Sergeant
Yando asked plaintiff why he left his housing block. The
officers finally released plaintiff after forcing him to
agree not to take any action regarding the attack.
returning to his cell, plaintiff was informed that
non-defendant CO. Imperati told Sergeant Yando that plaintiff
had not been given permission to leave his housing block.
night, plaintiff asked for and was denied access to medical
care. Plaintiff went to emergency sick call the next day, May
7, 2013, complaining of severe pain in his leg, ankle,
shoulder, and ribs. Medical staff recorded the following
injuries: a chipped front right tooth; sore neck; redness on
his hand; and bruising and tenderness of the shoulder,
armpit, right thigh, and ankles. Staff provided plaintiff
with ibuprofen for his pain.
informed non-party Lawrence O'Neill, Assistant Deputy
Assistant of Programs, of the attack, asked that it be
reported, and requested to have photos taken of his injuries.
Photos were taken and plaintiff filed a written complaint
with defendant Superintendent Lee after refusing to provide a
statement to non-party Sergeant Miller. Plaintiff described
what happened and asked Superintendent Lee to take
disciplinary action against the corrections officers involved
in the May 6, 2013, attack.
9, 2013, plaintiff returned to sick call and showed his
injuries to Superintendent Lee and Assistant Deputy Assistant
of Programs O'Neill. Plaintiff was also seen by medical
staff, and photos were again taken. Medical staff gave
plaintiff an ace bandage for his ankle, which appeared more
swollen and bruised. Plaintiff complained of extreme pain in
his thigh, ankle, shoulder, and side. Plaintiff was given
more ibuprofen for his pain.
had been placed in keeplock confinement-i.e., administrative
segregation-as a result of the May 6, 2013. incident, about
which plaintiff complained to Superintendent Lee. Lee told
plaintiff someone would be coming to speak with him soon.
that day. plaintiff met briefly with Investigator Ortiz from
the Inspector General's Office for an interview before
agreeing to continue the conversation on another day.
about May 10, 2013, plaintiff met with defendant Dr.
Goulding, his assigned medical provider, and showed Dr.
Goulding his injuries. After telling Dr. Goulding how he
received his injuries, plaintiff claims Dr. Goulding became
"very hostile and belligerent." (Compl. ¶ 23).
Dr. Goulding recorded only some of plaintiff s injuries,
refused to document others, and gave plaintiff only ibuprofen
for the pain. Dr. Goulding did not perform a full
examination, denied plaintiff physical therapy-even though
the mobility in plaintiffs right shoulder remained limited
for a year-and did not authorize plaintiffs use of an ace
bandage. Plaintiff requested an MRI or x-ray of his ribs, but
Dr. Goulding denied that request.
submitted a complaint dated May 14, 2013, regarding the
medical care he received from Dr. Goulding with Dr. Frederick
Bernstein, Green Haven's Medical Director, and Dr. Carl
Koenigsmann, DOCCS' Chief Medical Officer. (Pl.'s
Decl. Ex. B).
was seen again by Dr. Goulding on May 30, 2013. X-rays of
plaintiff s ribs and right ankle were taken at that time.
According to a response dated August 13, 2013, from Dr.
Bernstein to plaintiff regarding his May 14, 2013, complaint,
the x-rays showed no injury. (Pl.'s Decl. Ex. B), Dr,
Bernstein's response also indicated Dr. Goulding's
care had been appropriate and plaintiffs request for a new
medical provider was denied.
about May 13, 2013, plaintiff met again with Investigator
Ortiz. Throughout the interview, plaintiff felt like Ortiz
insinuated plaintiff had fabricated the May 6, 2013,
incident. Ortiz said that CO. Snedeker's baton had been
sent to forensics, but the bruises on plaintiffs leg appeared
to be from a broom handle, indicating plaintiff had been
attacked by inmates rather than corrections officers.
family visit interrupted the interview, causing Ortiz to
become angry and further question the validity of plaintiff s
claims because plaintiff wanted to attend the visit rather
than finish the interview. Plaintiff provided Ortiz with a
list of witnesses to interview regarding the May 6, 2013,
incident, but Ortiz did not speak to any of the witnesses
plaintiff identified. Instead, plaintiff claims Ortiz
randomly questioned inmates not present during the attack.
16, 2013, plaintiff filed a grievance with the Inmate
Grievance Resolution Committee ("IGRC"), using the
letter he had sent to Superintendent Lee on the night of May
6, 2013. Non-party Lieutenant Murphy interviewed plaintiff
regarding his grievance and, on June 29, 2013, decided to
defer investigation to the inquiry already started by Ortiz
and the Inspector General's Office.
11, 2013, Superintendent Lee notified plaintiff that an
investigation into the matter was ongoing and any necessary
action would be taken following the conclusion of the
Motion to Dismiss Under Rule 12(b)(6) Standard of
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. Patersoru, 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
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 ...