Bowers v. State, Department of Corrections and Community Supervision

          DAQUAN BOWERS Plaintiff, pro se

          DECISION AND ORDER

          GLENN T. SUDDABY Chief United States District Judge

         I. INTRODUCTION

         Pro se plaintiff Daquan Bowers commenced this civil rights action pursuant to 42 U.S.C. § 1983 ("Section 1983") in July 2017. See Dkt. No. 1 ("Compl."). Plaintiff did not pay the filing fee for this action and sought leave to proceed in forma pauperis.

         Upon review in accordance with 28 U.S.C. § 1915(e) and 28 U.S.C. § 1915A, the Court determined that plaintiff's complaint, as presented to this Court, did not allege facts sufficient to plausibly suggest that his rights protected under the Eighth Amendment were violated when he was injured by an unknown assailant in a surprise attack. Dkt. No. 7 (the "October Order").^[1] As a result, the complaint was dismissed for failure to state a claim upon which relief could be granted. Id. at 5-8. In light of his pro se status, plaintiff was afforded the opportunity to file an amended complaint. Id. at 8-9.

         Plaintiff duly filed an amended complaint which is before this Court for review. Dkt. No. 11 ("Am. Compl.").^[2]

         II. DISCUSSION

         In his amended complaint, plaintiff sets forth facts regarding the incident which occurred in February 2017 at Great Meadow Correctional Facility ("Great Meadow C.F."). See Am. Compl. at 5-6. At the time of the attack, plaintiff was in a stairwell leading from B Block Company to the messhall on his way to the noon meal. Id. at 5. As alleged, officers routinely assigned to the first and second floor stair landings were not at their posts. Id. While he was in the stairwell, plaintiff was cut from behind and suffered a three inch laceration to the right side of his face. Id.

         As in the original complaint, plaintiff states that he does not know the identity of his assailant; significantly, plaintiff does not allege that he had any particular reason to fear for his safety prior to the attack. Id.^[3] The Court also notes that plaintiff does not disclose where on the three flights of stairs he was when the attack occurred, nor does he claim to have yelled out or attempted in any way to notify staff of his injury. Id. at 5. Rather, plaintiff states that the incident came to light when C.O. Betit (not a defendant) saw the cut on plaintiff's face; by this time plaintiff had exited the stairwell and was walking towards the messhall seemingly unaware of the injury. Id. Following the attack, plaintiff stated that he did not "need or want" protective custody. Id. at 6. Plaintiff was recommended for involuntary protective custody ("IPC") status the following day. Id.^[4]

         Plaintiff names Great Meadow C.F. Deputy Superintendent of Security Eastman as a defendant in the amended complaint and alleges that he "had actual knowledge of high rates of assault in the corridors and stairwell" leading down from plaintiff's housing unit. Am. Compl. at 7.^[5] Plaintiff further alleges that existing policies and procedures at the facility called for correctional staff to be posted in the stairwells during inmate movement. Id. at 8. According to plaintiff, he and the other inmates from his housing unit were allowed to proceed into the stairwell on February 3, 2017, notwithstanding the fact that the assigned officers were not at their posts on the landings. Id. at 8-10. Plaintiff does not allege that this security lapse had ever occurred before.

         Based upon these allegations, plaintiff reasserts his Eighth Amendment "failure to protect" claim arising out of the incident on February 3, 2017; plaintiff also claims that his confinement on IPC status constituted cruel and unusual punishment in violation of his constitutional rights. Am. Compl. at 7-11.^[6] In addition to Deputy Supt. of Security Eastman, the two corrections officers assigned to escort his housing unit to the noon meal on February 3, 2017 (John Does 2 & 3), the two officers assigned to posts in the stairwell (John Does 4 & 5), Sgt. Reynolds (the supervising officer of plaintiff's housing unit); and the "Captain of Security" (John Doe 1) are named as defendants. Id. at 2-4. Plaintiff seeks an award of damages. Id. at 12.

         Upon review of the amended complaint, and with due regard for plaintiff's status as a pro se litigant, the Court finds that plaintiff has not cured the pleading deficiencies identified in the October Order with regard to his Eighth Amendment "failure to protect" claim. As discussed in the October Order, a plaintiff must show that he was incarcerated under conditions posing a "substantial risk of serious harm, " and that the charged prison officials acted with a sufficiently culpable state of mind by being deliberately indifferent to the inmate's health and safety. October Order at 6.

         Here, while plaintiff alleges in the amended complaint that inmates were at risk of assault in the corridors and stairwells at Great Meadow C.F. and that Dep. Supt. Eastman had "actual knowledge" of these risks, this allegation is wholly conclusory in nature and is, therefore, insufficient. The law in this Circuit clearly provides that "complaints relying on the civil rights statutes are insufficient unless they contain specific allegations of fact indicating a deprivation of rights, instead of a litany of general conclusions that shock but have no meaning." Hunt v. Budd, 895 F.Supp. 35, 38 (N.D.N.Y. 1995) (McAvoy, C.J.) (citing Barr v. Abrams, 810 F.2d 358, 363 (2d Cir. 1987) (other citations omitted)); Pourzandvakil v. Humphry, 94-CV-1594, 1995 WL 316935, at *7 (N.D.N.Y. May 22, 1995) (Pooler, J.) (citation omitted). In addition, the amended complaint affords no basis for liability against supervisory officials such as Dep. Supt. Eastman and Capt. "Doe" who, as alleged, had implemented policies and procedures for stairwell security and are not alleged to have had any knowledge that those procedures would not be followed on February 3, 2017. Plaintiff's conclusory assertion that defendants failed to train their subordinates in these procedures do not suffice. See, e.g., Smith v. Local 819 I.B.T. Pension Plan, 291 F.3d 236, 240 (2d Cir. 2002) ("conclusory allegations or legal conclusions masquerading as factual conclusions" are insufficient to allege involvement of a supervisor) (internal quotation omitted).^[7]

         As discussed in the October Order, it is well-settled that "not . . . every injury suffered by one prisoner at the hands of another . . . translates into constitutional liability for prison officials responsible for the victim's safety, " Farmer v. Brennan, 511 U.S. 825, 834 (1994), and deliberate indifference claims based upon surprise attacks are routinely denied by the courts. October Order at 6-7 (citing cases). Here, even assuming that plaintiff's allegations suffice to demonstrate that the alleged absence of assigned officers from the stairwells contributed to a risk of harm faced by plaintiff on this occasion (and the Court makes no such finding), there are no allegations of fact which even suggest that any named defendant possessed "sufficiently culpable intent." Plaintiff alleges, at best, a negligent ...