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Grant v. Hogue

United States District Court, S.D. New York

January 22, 2018



          Vincent L. Briccetti United States District Judge

         Plaintiff Nathaniel R. Grant, proceeding pro se and in forma pauperis, brings this action under 42 U.S.C. § 1983, alleging defendants Sergeant Hogue (“Sgt. Hogue”), Sergeant Kerr (“Sgt. Kerr”), and Correction Officer Belair (“C.O. Belair”) (collectively, the “DOC defendants”), and defendant Amy Schell violated his constitutional rights while he was incarcerated at Westchester County Jail (“WCJ”).[1]

         Now pending before the Court are two motions to dismiss the complaint pursuant to Rule 12(b)(6), filed separately by the DOC defendants and Schell. (Docs. ##17, 26).

         For the reasons set forth below, the DOC defendants' motion to dismiss is DENIED, and Schell's motion to dismiss is GRANTED.

         This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331.


         For purposes of ruling on a motion to dismiss, the Court accepts all factual allegations in the complaint as true and draws all reasonable inferences in plaintiff's favor, as summarized below.

         At all times relevant to the complaint, plaintiff was incarcerated at WCJ. Plaintiff's claims arise from his interactions with another inmate, non-party Juan Garcia, between November 2015 and November 2016.

         First, on November 19, 2015, Garcia accused plaintiff and other individuals at WCJ of sexual assault. Garcia's allegations were investigated and proven false, after which Garcia was put on “Enhance[d] Security Protocol.” (Compl. § VI, ¶ 2).

         Several months later, in June or July 2016, Garcia “moved back” to plaintiff's cellblock at WCJ, referred to as “1-G-block.” (Compl. § VI, ¶ 3). Plaintiff asked several sergeants and correction officers how to avoid further incident with Garcia. To plaintiff's surprise, non-party Sgt. Weston advised there were no “keep separates in D.O.C.'s file” for plaintiff and Garcia. (Compl. § VI, ¶ 4).

         A few days after Garcia returned to 1-G-block, he accused plaintiff of stealing his book and “started to attack” plaintiff. (Compl. § VI, ¶ 7). Garcia advanced toward plaintiff threateningly. Sgt. Hogue witnessed this and ordered plaintiff not to react. Plaintiff remained calm and backed away from Garcia while Sgt. Hogue ordered Garcia to stop. However, according to plaintiff, Garcia continued to advance. Sgt. Hogue and other officers then assisted plaintiff, and again removed Garcia from 1-G-block.

         Plaintiff explained to Sgt. Hogue that this was his second incident with Garcia, and asked Sgt. Hogue to enter a “keep separate” order. According to the complaint, Sgt. Hogue berated plaintiff with profanities, and stated, “your [sic] a killer so you should be able to handle it.” (Compl. § VI, ¶ 8).

         The following day, plaintiff spoke with several sergeants about his interaction with Garcia and Sgt. Hogue. He was told Sgt. Hogue had to be the one to enter any keep separate order, because he was on duty when the incident occurred. Plaintiff “left the issue alone, ” because Garcia had already been removed from 1-G-block. (Compl. § VI, ¶ 9).

         Around November 9, 2016, however, Garcia returned to 1-G-block. Plaintiff avoided Garcia, and spent a few days “running around, ” trying to have Garcia's housing assignment changed. (Compl. § VI, ¶ 10). During this time, plaintiff told Schell, a counselor in the mental health department, about his prior interactions with Garcia. Plaintiff also shared his observation that Garcia was not taking his medication, and seemed “agitated, distant, and very paranoid.” (Id.). Schell allegedly confirmed that Garcia was not taking medication. Plaintiff responded that Garcia targeted him when he was off his medication, and asked if Schell could transfer Garcia to the medical unit. Schell told plaintiff she could not do anything to help.

         Plaintiff next spoke to Sgt. Kerr, who allegedly advised plaintiff that only the mental health department can order an inmate's transfer to the medical unit.

         Plaintiff also told non-party Warden Moccia about his interactions with Garcia. According to plaintiff, Warden Moccia questioned why there was no keep separate order in place, and advised plaintiff to submit a “statement form” to the sergeant on duty. (Compl. §VI, ¶ 12). Plaintiff gave Sgt. Kerr a statement form, after which Garcia was moved to the special housing unit.

         Nevertheless, Garcia returned to 1-G-block three days later. Plaintiff again spoke to Schell about Garcia. Schell confirmed that although Sgt. Kerr moved Garcia, there was no keep separate order, and told plaintiff, “we just have to see what happens.” (Compl. § VI, ¶ 13).

         On November 23, 2016, Garcia called plaintiff over to his cell and asked if plaintiff had “a problem with him.” (Compl. § VI, ¶ 14). Plaintiff told C.O. Belair about his conversation with Garcia, his prior interactions with Garcia, and his statement form requesting that Garcia be removed from 1-G-block. Plaintiff also informed C.O. Belair that he recently had tendons repaired in his right hand, which had not fully healed.

         Shortly thereafter, C.O. Belair let Garcia out of his cell to use the phone. Rather than making a call, Garcia allegedly ran toward plaintiff and punched him multiple times, at least once in the face with a closed fist. Plaintiff, “delusional” from being repeatedly punched, responded by punching Garcia twice with his injured right hand, creating “unbearable” pain. (Compl. § VI, ¶ 16). C.O. Belair and other officers stood by, watching and laughing while plaintiff called for assistance. Plaintiff defended himself until “E.R.T.” arrived and took control. (Compl. § VI, ¶ 17).

         Since Garcia's attack, plaintiff has had constant pain in his right hand, for which he takes pain medication. (Compl. § VI, ¶ 17).

         Plaintiff filed a grievance regarding his interactions with Garcia, which was denied on December 7, 2016. (Opp'n Ex. 2). Plaintiff appealed the denial of his grievance to the WCJ chief administrative officer on December 7, 2016 (Opp'n Ex. 3), and alleges he has “not yet” received a response. (Opp'n ¶ 3).


         I. Stand ...

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