United States District Court, W.D. New York
DECISION AND ORDER
MICHAEL A. TELESCA, UNITED STATES DISTRICT JUDGE.
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
Factual Background and Procedural History
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.). 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.
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).
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.).
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”).
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.”
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.
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.
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'
reasons that follow, Defendants' partial Motion to
Dismiss is granted.
The Rule ...