United States District Court, S.D. New York
NATHANIEL R. GRANT, Plaintiff,
SERGEANT HOGUE, BADGE # 193; SERGEANT KERR, BADGE # 194; CORRECTION OFFICER BELAIR, BADGE # 1631; MENTAL HEALTH DEPT. COUNSELOR MS. AMYSHELL IN THEIR OFFICIAL & INDIVIDUAL CAPATICIES, Defendants.
OPINION AND ORDER
Vincent L. Briccetti United States District Judge
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
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).
reasons set forth below, the DOC defendants' motion to
dismiss is DENIED, and Schell's motion to dismiss is
Court has subject matter jurisdiction pursuant to 28 U.S.C.
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
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.
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).
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).
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.
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).
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,
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
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.
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.
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).
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.
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).
Garcia's attack, plaintiff has had constant pain in his
right hand, for which he takes pain medication. (Compl.
§ VI, ¶ 17).
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).