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Gonzalez v. Correction officer Coburn

United States District Court, W.D. New York

December 20, 2017

HECTOR GONZALEZ, Plaintiff,
v.
CORRECTION OFFICER COBURN, et al., Defendants.

          DECISION AND ORDER

          HON. MICHAEL A. TELESCA, UNITED STATES DISTRICT JUDGE.

         I. Introduction

         Pro se plaintiff Hector Gonzalez (“Plaintiff” or “Gonzalez”), an inmate in custody of the New York State Department of Corrections and Community Supervision (“DOCCS”) at Wende Correctional Facility, commenced the instant action pursuant to 42 U.S.C. § 1983 against DOCCS Correction Officers Coburn, Nolan, and John Doe Defendant, Sergeant Olles, Acting Commissioner Anthony J. Annucci, Superintendent Dale Artus, and Deputy Superintendent for Security Stewart Eckert (collectively, “Defendants”). Plaintiff alleges that Defendants subjected him to retaliatory assault and inhumane special contraband watch conditions, and created or enforced policies permitting the assault and inhumane conditions, all in violation of his First, Eighth, and Fourteenth Amendment rights.

         II. Factual Background and Procedural History

         Plaintiff alleges that on October 10, 2014, when he was an inmate at Attica Correctional Facility (“Attica”), Correction Officers Nolan, Coburn, and Doe, along with Sergeant Olles, approached him and ordered him against the wall. (Docket No. 21 (“Am. Compl.”) at 5). Thereafter, Coburn allegedly stated, “you like sending grievances to the Superintendent?” (Id.).[1] Plaintiff claims that these defendants then proceeded to search Plaintiff, call him racial epithets, and attack him by punching and kicking him to the ground. (Id.).

         Plaintiff alleges that following the above-described incident, Attica officials falsely charged him with misconduct, and Sergeant Olles placed him in a room on special contraband watch. (Id. at 5-6, Ex. B at 1, 3). While on contraband watch, Attica officials allegedly stripped Plaintiff of his normal clothing and required him to wear a hospital gown in its place. (Id. at 5). Plaintiff claims that he was not provided with hand soap, toothbrush, toothpaste, or a hand towel. (Id., Ex. C). Plaintiff remained on contraband watch for two months in a room exposing him to cold temperatures, which Defendants referred to as “the Cooler, ” where they put “an inmate on ice.” (Id. at 6).

         On December 31, 2014, two weeks after Attica officials released Plaintiff from special contraband watch, he filed an Inmate Grievance Complaint. (Id., Ex. B at 3). Plaintiff claimed in his grievance that “Officer Coburn said to me go to the wall, ” and “once he though[t] it was clear . . . began grabbing me forcefully by my neck . . . hitting me in my ribs and then CO Nolan and other officers put me [in] handcuffs and CO Nolan start[ed] hitting me in my face.” (Id.). Thereafter, “SGT Ollie [sic] sen[t] [Plaintiff] to [] special watch for 65 days.” (Id.). Plaintiff requested that the abuse cease and that he be compensated for the 65 days he spent in special contraband watch. (Id.).

         On January 14, 2015, the Inmate Grievance Review Committee (“IGRC”) held a hearing with respect to Plaintiff's grievance in Plaintiff's absence because he was in the Special Housing Unit (“SHU”). (Id., Ex. B at 1). On April 13, 2015, the IGRC denied Plaintiff's grievance. (Id., Ex. B at 2). The IGRC concluded that there was no evidence to support Plaintiff's accusations, and found that staff used an appropriate amount of force. (Id.). On May 7, 2015, Plaintiff appealed to Superintendent Artus, claiming the decision was wrong and personnel had pictures and x-rays of the attack. (Id.). After Superintendent Artus denied Plaintiff's appeal (Id. at 5), he appealed to the Central Office Review Committee (“CORC”). (Id.).

         The CORC held a hearing on December 16, 2015, and subsequently denied Plaintiff's request for relief. (Id., Ex. B at 1). The CORC reasoned that Plaintiff failed to identify witnesses and had not otherwise presented “sufficient evidence of malfeasance by staff.” (Id.).[2]

         The CORC's decision, which Plaintiff included as an exhibit to the Amended Complaint, also found the facts of the incident differently, stating that Coburn and Nolan conducted a random pat frisk of Plaintiff, and that he resisted the search when he pushed away from the wall. (Id.). After these defendants used force to undermine his resistance, the CORC noted, medical staff treated Plaintiff for bruising and swelling to the left orbital area, and abrasions to his right wrist, back, and left shoulder resulting from the incident. (Id.). CORC further noted that Attica officials documented the incident with a Misbehavior Report (“MBR”). (Id.). On October 19, 2014, nine days after Plaintiff went on special contraband watch, he defecated a plastic package which tested positive for cocaine. (Id.). Attica officials released Plaintiff from special contraband watch on December 15, 2014, after he had two negative defecations. The CORC further noted that the Office of Special Housing/Inmate Discipline affirmed the MBR on April 10, 2015. (Id.).

         Plaintiff then instituted this Section 1983 action, alleging various constitutional violations in connection with the October 10, 2014 retaliatory assault and two-month special contraband watch. On May 10, 2017, the Court granted Plaintiff's third motion for leave to proceed in forma pauperis (Docket No. 10) with the instruction that Plaintiff file an amended complaint. As a part of its May 10, 2017 order, the Court also requested that the Attorney General ascertain the identity of the John Doe Defendant and an address where Plaintiff could serve him. See Valentin v. Dinkins, 121 F.3d 72 (2d Cir. 1997) (per curiam). On November 6, 2017, counsel for Defendants, Assistant Attorney General Hillel Deutsch, sent a letter to the Court (Docket No. 23) and explained that “[p]er facility paperwork, only three officers were involved in the incident, ” but “[i]f Plaintiff believes an additional individual was involved, a physical description will be useful to determine” the officer's identity. The Court is unaware of whether Plaintiff has provided a physical description of the John Doe defendant to counsel for Defendants, but the identity of the John Doe defendant is not dispositive with respect to the outcome of the present motion. Plaintiff filed the Amended Complaint (Docket No. 21) on October 4, 2017.

         Currently pending before the Court is Defendants' partial Motion to Dismiss the Complaint for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Defendants move to dismiss Plaintiff's First Amendment retaliation claim as to all Defendants. (Docket No. 22-1 at 1, 4). Defendants also move to dismiss Plaintiff's claim that Acting Commissioner Anthony J. Annucci (“Annucci”), Superintendent Dale Artus (“Artus”), and Deputy Superintendent for Security Stewart Eckert (“Eckert”) (collectively, “the Supervisory Defendants”) created and enforced policies and procedures which allowed Attica officials to subject him to retaliatory assault and special contraband watch under cold conditions in violation of his right to be free from cruel and unusual punishment under the Eighth Amendment and his right to due process under the Fourteenth Amendment. (Id. at 1). Defendants do not seek to dismiss Plaintiff's claims against Correction Officers Coburn, Nolan, and John Doe or Sergeant Olles for the use of excessive force in violation of his Eighth Amendment right to be free from cruel and unusual punishment. Plaintiff failed to file any opposition to Defendants' motion.

         For the reasons that follow, Defendants' partial Motion to Dismiss is granted.

         III. The Rule ...


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