Smith v. Martuscello et al

Filing 33

MEMORANDUM-DECISION AND ORDER: ORDERED that 29 Report and Recommendation is accepted. ORDERED that 32 Motion to Supplement Pleadings is granted.ORDERED that 25 Motion to Dismiss is granted. ORDERED that the amended complaint is dismissed in its entirety. Signed by Judge Norman A. Mordue on 9/24/12. {order served via regular mail on plaintiff}(nas)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
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AUREL SMITH,
Plaintiff,
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9:10-CV-1532 (NAM/RFT)

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DAVID F. MARTUSCELLO, JR., Superintendent, Coxsackie
Correctional Facility; BRIAN S. FISCHER, Commissioner of
DOCS; LUCIEN J. LECLAIRE, Deputy Commissioner for
Facility Operations; KAREN BELLAMY, Director, Inmate
Grievance Committee,
Defendants.
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APPEARANCES:

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AUREL SMITH
02-A-6279
Auburn Correctional Facility
135 State Street
Box 618
Auburn, New York 13021
Plaintiff, Pro Se
Hon. Eric T. Schneiderman, Attorney General of the State of New York
Roger W. Kinsey, Esq., Assistant New York State Attorney
The Capitol
Albany, New York 12224
Attorney for Defendants

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Hon. Norman A. Mordue, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
Defendants move (Dkt. No. 25) under Fed.R.Civ.P. 12(b)(6) to dismiss this putative class
action brought pursuant to 42 U.S.C. § 1983. In his pro se amended complaint (Dkt. No. 2),
plaintiff, an inmate in the custody of New York Department of Corrections and Community
Services (“DOCCS”), claims defendants allowed and enabled widespread prisoner abuse and
failed to correct the constitutional violations of which they had knowledge. Plaintiff does not

claim money damages and seeks only declaratory and injunctive relief.
Upon referral pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.3(c), United States
Magistrate Judge Randolph F. Treece issued a Report and Recommendation (Dkt. No. 29)
recommending that the amended complaint be dismissed in its entirety. Plaintiff submits an
objection (Dkt. No. 30). He also submits a supplemental objection, which the Court accepts and
considers. Thus, plaintiff’s motion (Dkt. No. 32) to supplement the objection is granted. The
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Court conducts de novo review. See 28 U.S.C. § 636(b)(1)(C).
The Court adopts Magistrate Judge Treece’s summary of the facts. Plaintiff’s causes of
action are based on events occurring at Coxsackie Correctional Facility (“CCF”), where he was
housed between January 2009 and July 2010. Very briefly, plaintiff claims that various false
misbehavior reports were issued against him at CCF; that he was placed in pre-hearing cell

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confinement; that he was harassed by corrections officers (“CO’s”) at CCF; that he was
wrongfully found guilty of some misbehavior reports and his grievances wrongfully dismissed;
and that several of his grievances against the CO’s involved in the various incidents were not
properly investigated. None of these CO’s are named defendants. Plaintiff explains:

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[T]he foregoing account has been given to give background descriptions how inmates
are and maybe so easily issued fabricated misbehavior reports with findings of guilt
ensured against them, hence officers’ wrongful manipulation of the inmate
disciplinary program, as well as the ineffective and inadequate nature of the inmate
grievance program when it comes to complaints against officer misconduct.
Plaintiff further alleges that on April 20, 2010, at CCF, he was attacked by several CO’s, resulting
in physical injuries. None of the CO’s who allegedly participated are named as defendants, nor
does plaintiff seek money damages for his alleged injuries. After the incident, he was issued a
false misbehavior report and placed in a special housing unit. He filed a grievance. Defendant

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Superintendent Martuscello denied the grievance, ignored plaintiff’s request that criminal charges
be filed against the CO’s, and failed to initiate or request an investigation. On July 2010, plaintiff
was transferred from CCF. In this amended complaint, plaintiff seeks only declaratory and
injunctive relief.1
As Magistrate Judge Treece explains, a defendant’s personal involvement is an essential
element of a claim under 42 U.S.C. § 1983. There is no respondeat superior liability under
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section 1983. Rather, the personal involvement of a supervisory defendant may be shown by
evidence that the supervisory defendant directly participated in the alleged constitutional
violation; failed to remedy the wrong after being informed of the violation; created a policy or
custom under which unconstitutional practices occurred, or allowed the continuance of such a
policy or custom; was grossly negligent in supervising subordinates who committed wrongful

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acts; or exhibited deliberate indifference to the rights of inmates by failing to act on
information indicating that unconstitutional acts were occurring. See Colon v. Coughlin, 58 F.3d
865, 873 (2d Cir. 1995).2
In the instant case, none of the CO’s allegedly involved in the incidents of which plaintiff
complains are named as defendants. The defendants are David F. Martuscello, Jr., Superintendent
of Coxsackie Correctional Facility; Brian S. Fischer, Commissioner of DOCCS; Lucien J.

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1

Plaintiff filed another case in this district, Smith v. Wildermuth, 9:11-CV-241, which is based in
substantial part on the alleged beating on April 20, 2010, and which seeks compensatory and punitive
damages.
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The applicability of Colon has been cast into doubt by Ashcroft v. Iqbal, 556 U.S. 662, 666-67
(2009), and the Second Circuit has not yet clarified Colon in the wake of Iqbal; however, the general
consensus among district courts is that Colon continues to apply to cases, such as the instant case,
alleging violations of an inmate’s Eighth Amendment rights. See, e.g., Plair v. City of N.Y., 2011 WL
2150658, *4-*5 (S.D.N.Y. May 31, 2011) (citing cases).

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Leclaire, Deputy Commissioner for Facility Operations; and Karen Bellamy, Director of the
Inmate Grievance Committee. There are no allegations that would support a finding that any of
the named defendants were personally involved in any of the incidents of which plaintiff
complains, with the exception of defendant Martuscello (discussed below). The Court agrees
with Magistrate Judge Treece’s analysis and conclusion that all claims against defendants Brian
S. Fischer, Lucien J. LeClaire, and Karen Bellamy should be dismissed.
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As for defendant David F. Martuscello, Jr., Superintendent of Coxsackie Correctional
Facility, plaintiff claims that Martuscello saw plaintiff on April 21, 2010, the day after he was
allegedly injured in the attack by the CO’s at CCF, but failed to initiate an investigation into the
attack; ignored plaintiff’s request that he file a criminal complaint; and denied plaintiff’s
grievance about the incident. At the pleading stage, and in view of plaintiff’s pro se status, this is

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sufficient to allege personal involvement by Martuscello in his supervisory capacity under Colon.
Plaintiff further alleges that Martuscello allowed the abuse and constitutional violations to
become “systematic,” thus giving rise to ongoing violations of federal law. Plaintiff requests
declaratory and injunctive relief. Thus, plaintiff’s claims against Martuscello are not necessarily
barred by the Eleventh Amendment, which does not bar a plaintiff from suing a state official
acting in his official capacity for prospective, injunctive relief from violations of federal law. See

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In re Deposit Ins. Agency, 482 F.3d 612, 617 (2d Cir. 2007).
Plaintiff’s claims for declaratory and injunctive relief against Martuscello are, however,
dismissed on the ground that they are moot. Plaintiff was transferred out of CCF in July 2010 and
is currently housed in a different facility. “[A]n inmate’s transfer from a prison facility generally
moots claims for declaratory and injunctive relief against officials of that facility.” Salahuddin v.

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Goord, 467 F.3d 263, 272 (2d Cir. 2006); accord Young v. Coughlin, 866 F.2d 567, 568, n.1 (2d
Cir. 1989).
In view of this holding, there is no basis for plaintiff to pursue a class action. The
complaint is dismissed in its entirety.
It is therefore
ORDERED that plaintiff’s motion (Dkt. No. 32) to supplement the objection is granted;
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and it is further
ORDERED that the Report-Recommendation and Order (Dkt. No. 29) is accepted; and it
is further
ORDERED that defendants’ motion to dismiss the action (Dkt. No. 25) is granted; and it
is further

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ORDERED that the amended complaint (Dkt. No. 2) is dismissed in its entirety; and it is
further
ORDERED that the Clerk of the Court is directed to serve copies of this MemorandumDecision and Order in accordance with the Local Rules of the Northern District of New York.
IT IS SO ORDERED.

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September 24, 2012
Syracuse, New York

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