United States District Court, W.D. New York
DECISION AND ORDER
CHARLES J. SIRAGUSA UNITED STATES DISTRICT JUDGE
an action under 42 U.S.C. § 1983 brought by Tracey
Douglas (“Plaintiff”), a prison inmate in the
custody of the New York State Department of Corrections and
Community Supervision (“DOCCS”). Plaintiff
alleges that Defendants failed to protect him from attacks by
other inmates. Now before the Court is Defendants' motion
for judgment on the pleadings. (Docket No. [#15]). The
application is granted in part and denied in part.
reader is presumed to be familiar with the Court's prior
Decisions and Orders in this action, which discuss the facts
of the case in detail. It is sufficient to note that at all
relevant times, Plaintiff was incarcerated by DOCCS, and was
serving a sentence for robbery. The person whom Plaintiff was
convicted of robbing was allegedly a high-ranking member of
the Bloods gang, which has many members incarcerated in DOCCS
facilities throughout New York. Plaintiff maintains that such
gang members targeted him for violent retaliation. In
particular, Plaintiff contends that the Bloods slashed his
face on five different occasions during 2001, 2002, 2006 and
2008. Initially in this action, Plaintiff was seeking to
recover damages for alleged failures by DOCCS employees to
protect him from those attacks, but by Decision and Order
dated July 14, 2016, the Court granted summary judgment for
Defendants as to those claims.
Plaintiff also alleges that Defendants failed to adequately
protect him after he was transferred to Elmira Correctional
Facility in 2013, and the Court denied Defendant's
application for summary judgment as to that claim.
this sole surviving claim, Plaintiff maintains that at the
time of such transfer, Defendants were aware of the
aforementioned past attacks on him, and were aware that he
was in continuing imminent danger of being assaulted again by
Bloods gang members, if any, at Elmira. The Complaint [#1]
further states in pertinent part:
26. On July 5, 2013 I was once again sent to the very same
facility (Elmira) where I was assaulted (twice) and where the
state is clearly aware of the threat on my life (upon
admission I was refused protective custody).
27. On August 1, 2013 I was finally approved for Protective
Custody at “Elmira.” After being in their general
population for almost a month.
28. Placement in their protective custody unit was only
granted after the security officials became aware of
specified threats to my life from their various informants.
Complaint also indicates that even after Plaintiff was placed
in protective custody at Elmira, he was still required to
pass through the general population areas of the facility
twice per day, in order to go to the infirmary. On this
point, the Complaint states, in pertinent part:
32. Twice each day, eight in the morning and approximately
eight at night, I [was] escorted by an officer, sometimes a
female officer, through the inmate population of two housing
areas, then to an infirmary in a separate building that [was
accessed] from an outdoor entrance-way.
33. On most days prisoners are entering and exiting the
infirmary, and or crowded within the doorways during the
34. On any one of th[o]se trips an inmate, (if he for
whatever reason has chosen to) can reach out and cut, stab or
assault me in any number of ways, and at most, [all that] the
officer escorting me would or could do is “react”
to what has “already” taken place, but cannot
“prevent' the attempt on my life.
Plaintiff's concerns, he was never physically attacked
while in protective custody at Elmira.
the Complaint indicates that Plaintiff suffered “mental
and emotional injuries” as a result of worrying about
the potential threat of being attacked by Bloods gang members
at Elmira during such trips to and from the infirmary. In
particular, the Complaint indicates that Plaintiff's days
were “spent in fear” of being attacked; that he
“suffer[ed] from a constant and continuous nervous
stomach”; that he “sometimes [went] days without
sleep”; and that he was so afraid when being escorted
through the general population areas that he could hear his
own heart “in [his] ears.”
Complaint alleges that Plaintiff's fear of being
assaulted is sufficient to satisfy the requirements of the
8th Amendment. More specifically, the Complaint contends that
Plaintiff's “consummate fear of being assault[ed]
again” and his inability to sleep are sufficiently
serious injuries to support an 8th Amendment
claim. The Complaint demands compensatory damages
and punitive damages.
29, 2016, Defendants filed the subject motion [#15] for
judgment on the pleadings, pursuant to Rule 12(c) of the
Federal Rules of Civil Procedure. Defendants maintain that an
8th Amendment failure-to-protect claim is not actionable, as
a matter of law, where the inmate was not actually assaulted,
but only experienced fear of being assaulted. See,
Defs. Memo of Law [#15-1] at p. 4, 6 (“Fear of being
assaulted is not a sufficiently serious injury. . . .
[P]laintiff's lack of physical injury is fatal to his
Eighth Amendment claim.”). On this point, Defendants
cite, inter alia, Fofana v. Suffolk County Corr.
Fac., No. 13-CV-00443 (SJF)(ETB), 2013 WL 2285753
(E.D.N.Y. May 20, 2013). In the event that the Court declines
to dismiss the action altogether, Defendants alternatively
contend that the Court should dismiss Plaintiff's claims
for compensatory and punitive damages, pursuant to 42 U.S.C.
§ 1997e(e), since he did not sustain a physical
responds that although he did not sustain any physical injury
in connection with his 2013 incarceration at Elmira, he has
nevertheless adequately stated an actionable 8th Amendment
claim. In particular, Plaintiff maintains that an 8th
Amendment violation may occur where an inmate faces a
“substantial risk of serious
harm.” Plaintiff also contends that while 42
U.S.C. § 1997e(e) requires a physical injury, it
“does not [specify] when that prior injury had to
occur.” Plaintiff ...