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Douglas v. Annucci

United States District Court, W.D. New York

November 6, 2017

ANTHONY ANNUCI, et al., Defendants.




         This is 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.


         The 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.[1]

         However, 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.

         Regarding 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.

         The 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 escort.
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.

         Despite Plaintiff's concerns, he was never physically attacked while in protective custody at Elmira.

         However, 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.”[2]

         The 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.[3] The Complaint demands compensatory damages and punitive damages.[4]

         On July 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 injury.[5]

         Plaintiff 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.”[6] 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.”[7] Plaintiff ...

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