Zulu v. Barnhart et al
DECISION AND ORDER: ORDERED that plaintiff's Eighth Amendment claims against Dischiavo are DISMISSED without prejudice pursuant to 28 U.S.C. § 1915A(b) for failure to state a claim upon which relief may be granted. ORDERED that Dischiavo is DISMISSED as a defendant herein. ORDERED that plaintiff's Eighth Amendment claims against Barnhart, Muha, Hubal, Gebo, and Leddick survive the Court's sua sponte review under 28 U.S.C. § 1915A(b) and require a response. ORDERED that plaintiff is afforded an opportunity to request an order of this Court directing service by the U.S. Marshal and provide payment of the service fee to the U.S. Marshal in full by money order or certified check. ORDERED that upon plaintiff 9;s request for assistance with service of process, the Clerk shall return the file to the Court for further review. ORDERED that if plaintiff does not request for assistance with service of process within twenty (20) days of the filing date of th is Decision and Order, the Clerk shall issue summonses and forward them to plaintiff, who shall be responsible for effecting service of process on defendants. Upon issuance of the summonses, the Clerk shall send a copy of the summonses and complaint to the Office of the New York Attorney General, together with a copy of this Decision and Order. ORDERED that defendants or their counsel, file a response to the complaint as provided for in the Federal Rules of Civil Procedure after service of process upon them. Signed by U.S. District Judge Mae A. D'Agostino on 12/30/16. ( Notice of Compliance Deadline 1/19/2017) (served on plaintiff by regular mail) (alh, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
ARKIL LIONKING ZULU,
JOHNATHAN M. BARNHART, et al.,
ARKIL LIONKING ZULU
Plaintiff, pro se
Clinton Correctional Facility
P.O. Box 2002
Dannemora, NY 12929
MAE A. D'AGOSTINO
United States District Judge
DECISION AND ORDER
Plaintiff Arkil Lionking Zulu commenced this action by filing a pro se complaint
pursuant to 42 U.S.C. § 1983. Dkt. No. 1 ("Compl.").1 Plaintiff, who is presently confined at
Clinton Correctional Facility ("Clinton C.F."), has paid the full filing fee of $400.00.
SUFFICIENCY OF THE COMPLAINT
Governing Legal Standard
This is the third civil rights action plaintiff has filed in the Northern District of New York. See Zulu
v. Seymour, No. 9:14-CV-0870 (MAD/RFT) (N.D.N.Y. filed July 17, 2014) ("Zulu I") and Zulu v. Lashway, et. al.,
No. 9"15-CV-0595 (GLS/RFT) (N.D.N.Y. filed May 15, 2015) ("Zulu II"). Zulu I is pending.
Under 28 U.S.C. § 1915A, a court must review any "complaint in a civil action in which
a prisoner seeks redress from a governmental entity or officer or employee of a governmental
entity" and must "identify cognizable claims or dismiss the complaint, or any portion of the
complaint, if the complaint . . . is frivolous, malicious, or fails to state a claim upon which relief
may be granted; or . . . seeks monetary relief from a defendant who is immune from such
relief." 28 U.S.C. § 1915A(b); see also Carr v. Dvorin, 171 F.3d 115, 116 (2d Cir. 1999) (per
curiam) (Section 1915A applies to all actions brought by prisoners against government
officials even when plaintiff paid the filing fee).
When reviewing a complaint, the court may also look to the Federal Rules of Civil
Procedure. Rule 8 of the Federal Rules of Civil Procedure provides that a pleading that sets
forth a claim for relief shall contain "a short and plain statement of the claim showing that the
pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). The purpose of Rule 8 "is to give fair
notice of the claim being asserted so as to permit the adverse party the opportunity to file a
responsive answer, prepare an adequate defense and determine whether the doctrine of res
judicata is applicable." Hudson v. Artuz, No. 95 CIV. 4768, 1998 WL 832708, at *1
(S.D.N.Y. Nov. 30, 1998) (quoting Brown v. Califano, 75 F.R.D. 497, 498 (D.D.C. 1977)).
A court should not dismiss a complaint if the plaintiff has stated "enough facts to state
a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct
alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although the Court should construe
the factual allegations in the light most favorable to the plaintiff, "the tenet that a court must
accept as true all of the allegations contained in a complaint is inapplicable to legal
conclusions." Id. "Threadbare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice." Id. (citing Twombly, 550 U.S. at 555). "[W]here
the well-pleaded facts do not permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged-but it has not 'show[n]'-'that the pleader is entitled to
relief.'" Iqbal, 556 U.S. at 679 (quoting Fed. Rule Civ. Proc. 8(a)(2)). Rule 8 "demands more
than an unadorned, the-defendant-unlawfully-harmed-me accusation." Iqbal, 556 U.S. at
While pro se parties are held to less stringent pleading standards, the Second Circuit
has held that "district courts may dismiss a frivolous complaint sua sponte even when the
plaintiff has paid the required filing fee." See Fitzgerald v. First E. Seventh St. Tenants Corp.,
221 F.3d 362, 364 (2d Cir. 2000). Indeed, "district courts are especially likely to be exposed
to frivolous actions and, thus, have [a] need for inherent authority to dismiss such actions
quickly in order to preserve scarce judicial resources." Id. A cause of action is properly
deemed frivolous "where it lacks an arguable basis either in law or in fact." Neitzke v.
Williams, 490 U.S. 319, 325 (1989).
Summary of Complaint
Plaintiff brings this action pursuant to 42 U.S.C. § 1983, which establishes a cause of
action for " 'the deprivation of any rights, privileges, or immunities secured by the Constitution
and laws' of the United States." German v. Fed. Home Loan Mortgage Corp., 885 F. Supp.
537, 573 (S.D.N.Y. 1995) (citing Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990)
(quoting 42 U.S.C. § 1983)) (footnote omitted); see also Myers v. Wollowitz, No. 6:95-CV0272 (TJM/RWS), 1995 WL 236245, at *2 (N.D.N.Y. Apr. 10, 1995) (stating that "§ 1983 is
the vehicle by which individuals may seek redress for alleged violations of their constitutional
rights." (citation omitted)). "Section 1983 itself creates no substantive rights, [but] . . . only a
procedure for redress for the deprivation of rights established elsewhere." Sykes v. James,
13 F.3d 515, 519 (2d Cir. 1993) (citation omitted). The Court will construe the allegations in
plaintiff's complaint with the utmost leniency. See, e.g., Haines v. Kerner, 404 U.S. 519, 520
(1972) (holding that a pro se litigant's complaint is to be held "to less stringent standards than
formal pleadings drafted by lawyers.").
Plaintiff's complaint asserts allegations of wrongdoing that occurred, if at all, while he
was confined at Marcy Correctional Facility ("Marcy C.F."). See Compl. at 1. On January 18,
2015, plaintiff was in the bathroom when he heard the "fan go off." Id. at 2. Plaintiff walked
out of a bathroom stall and saw defendant Correctional Officer Johnathan M. Barnhart
("Barnhart") standing in the entryway. Id. at 2. Plaintiff asked Barnhart if he knew who turned
the fan off. Id. Barnhart responded in a hostile manner with expletives. Compl. at 2. Plaintiff
responded "alright" and returned to his cell to read a book. Id.
Barnhart appeared at his cell and directed plaintiff to "get on the [expletive] wall."
Compl. at 3. Plaintiff asked Barnhart if he was talking to him and Barnhart responded with
expletives. Id. Plaintiff complied with Barnhart's directive. Id. After Barnhart summoned a
Sergeant to the area, four to six officers "rush[ed]" into the room. Id. Defendant Correctional
Officer J. Muha ("Muha") "leaned" on plaintiff's back with his elbow. Compl. at 3. Plaintiff
asked Muha "what is going on?" and Muha responded, "shut the [expletive] up." Id.
Barnhart grabbed plaintiff by his hair and "rammed" plaintiff's face, twice, against the
wall. Compl. at 3-4. Muha told plaintiff he was going to the Special Housing Unit ("SHU").
Id. at 4. Plaintiff was handcuffed and placed in a van for transport to the SHU. Id. While in
the van, Muha used racial slurs, threatened plaintiff, and struck plaintiff in the nose. Compl.
at 4. Defendant Correctional Officer M. Hubal ("Hubal") struck plaintiff on the right side of his
head with a lock and defendant Correctional Officer Gebo ("Gebo") struck plaintiff in the face.
Plaintiff was pulled from the van by defendant Correctional Officer D. Dischiavo
("Dischiavo") and placed in a room inside the SHU. Compl. at 4. Plaintiff asked defendant
Sergeant D. Leddick ("Leddick") what "the problem" was and said "I didn't do anything." Id. at
4. Leddick grabbed plaintiff's hair, pulled his head back, and struck the left side of plaintiff's
face with a sharp instrument. Id. Leddick "rammed" plaintiff's face into the wall. Id. at 5.
Plaintiff overheard Leddick tell another officer, "I told Barnhard write down threats." Compl. at
Plaintiff was transported to St. Elizabeth Hospital and received sutures in his right and
left eyebrows. Compl. at 5. As a result of the incidents, plaintiff sustained permanent
physical scars. Id.
Based upon the foregoing, plaintiff claims that defendants used excessive force and
failed to intervene in violation of his Eighth Amendment rights. Compl. at 5, 6. Plaintiff seeks
an award of money damages. Id. at 7. For a complete statement of plaintiff's claims,
reference is made to the complaint.
The Eighth Amendment protects prisoners from "cruel and unusual punishment" at the
hands of prison officials. Wilson v. Seiter, 501 U.S. 294, 296-97 (1991); Estelle v. Gamble,
429 U.S. 97, 104 (1976). The Eighth Amendment's prohibition encompasses the use of
excessive force against an inmate, who must prove two components: (1) subjectively, that
the defendant acted wantonly and in bad faith, and (2) objectively, that the defendant's
actions violated "contemporary standards of decency." Blyden v. Mancusi, 186 F.3d 252,
262-63 (2d Cir. 1999) (internal quotations omitted) (citing Hudson v. McMillian, 503 U.S. 1, 8
(1992)). In this regard, while "a de minimis use of force will rarely suffice to state a
constitutional claim," Romano v. Howarth, 998 F.2d 101, 105 (2d Cir. 1993), the malicious
use of force to cause harm constitutes an Eighth Amendment violation per se because in
such an instance "contemporary standards of decency are always violated." Blyden, 186
F.3d at 263 (citing Hudson, 503 U.S. at 9). The key inquiry into a claim of excessive force is
"whether force was applied in a good-faith effort to maintain or restore discipline, or
maliciously and sadistically to cause harm." Hudson, 503 U.S. at 7 (citing Whitley v. Albers,
475 U.S. 312, 321-22 (1986)); see also Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973);
see also Wilkins v. Gaddy, 559 U.S. 34, 37 (2010) (per curiam) ("[t]he Supreme Court has
emphasized that the nature of the force applied is the core judicial inquiry in excessive force
cases—not whether a certain quantum of injury was sustained."). "To determine whether a
defendant acted maliciously, several factors should be examined including, 'the extent of the
injury and the mental state of the defendant, as well as the need for the application of force;
the correlation between that need and the amount of force used; the threat reasonably
perceived by the defendants; and any efforts made by the defendants to temper the severity
of a forceful response.' " Scott v. Coughlin, 344 F.3d 282, 291 (2d Cir. 2003) (quoting
Romano, 998 F.2d at 105).
Here, Plaintiff has identified the time, location, individuals involved and injuries
sustained in the alleged incidents. The complaint alleges that (1) Barnhart told plaintiff to "get
on the [expletive] wall and "rammed plaintiff's face twice into the wall;" (2) Muha used racial
slurs and told plaintiff, "you like to [expletive] with my officers" while he struck plaintiff in the
nose; (3) Hubal struck him with a lock while Gebo struck his face; and (4) Leddick assaulted
plaintiff and told Barnhart to "write down threat." See Compl. at 3-5. At this juncture,
plaintiff's Eighth Amendment claims against Barnhart, Muha, Hubal, Gebo, and Leddick
survive sua sponte review and require a response. In so ruling, the Court expresses no
opinion as to whether these claims can withstand a properly filed motion to dismiss or for
A different conclusion is reached with respect to Dischiavo. In his "Claims for Relief,"
plaintiff alleges that Dischiavo used physical force. See Compl. at 6. The complaint
however, lacks specific allegations of wrongdoing by this defendant. Plaintiff alleges that
Dischiavo "pulled" him off of the transportation van and placed him in a room. Plaintiff did not
allege that Dischiavo used force, was present during any incident, or otherwise involved in
any other constitutional violation. See Compl. at 4. Consequently, plaintiff's Eighth
Amendment claim against Dischiavo is dismissed without prejudice pursuant to 28 U.S.C. §
1915A(b) for failure to state a claim upon which relief may be granted.
Failure to Intervene
The failure of correctional officers to employ reasonable measures to protect an
inmate from violence by others may rise to the level of an Eighth Amendment violation. See
Ayers v. Coughlin, 780 F.2d 205, 209 (2d Cir. 1985). Moreover, allegations that an officer
failed to intervene and prevent assaults are sufficient to state an Eighth Amendment failure to
protect claim. See Rogers v. Artus, No. 13-CV-21, 2013 WL 5175570, at *3 (W.D.N.Y. Sept.
11, 2013). To establish liability under a failure to intervene theory, a plaintiff must prove the
use of excessive force by someone other than the individual and that the defendant under
consideration: 1) possessed actual knowledge of the use by another of excessive force; 2)
had a realistic opportunity to intervene and prevent the harm from occurring; and 3)
nonetheless disregarded that risk by intentionally refusing or failing to take reasonable
measures to end the use of excessive force. Curley v. Vill. of Suffern, 268 F.3d 65, 72 (2d
Cir. 2001). In order to succeed on a claim of failure to protect, the inmate "must establish
both that a substantial risk to his safety actually existed and that the offending [defendant]
knew of and consciously disregarded that risk." See Walsh v. Goord, No. 07-CV-0246, 2007
WL 1572146, at *9 (W.D.N.Y. May 23, 2007) (quoting Farmer v. Brennan, 511 U.S. 825, 837
(1970)). In addition, a failure-to-protect claim requires a showing that prison officials acted
with "deliberate indifference" to the inmate's safety. Morales v. New York State Dep't of
Corr., 842 F.2d 27, 30 (2d Cir. 1988).
At this early stage of the proceeding, plaintiff has alleged enough to require a
responses from Barnhart, Muha, Hubal, Gebo, and Leddick to plaintiff's claim that they failed
to protect plaintiff from assaults. In so ruling, the Court expresses no opinion as to whether
this claim can withstand a properly filed motion to dismiss or for summary judgment.
With respect to Dischiavo, for the reasons set forth supra, plaintiff's Eighth Amendment
claims for failure to intervene are dismissed without prejudice pursuant to 28 U.S.C. §
1915A(b) for failure to state a claim upon which relief may be granted.
SERVICE OF PROCESS
In this case, plaintiff paid the entire filing fee for this action. As a result, plaintiff is
responsible for serving the summons and complaint on the defendants. Rule 4 of the Federal
Rules of Civil Procedure provides that "[a]t the plaintiff's request, the court may order that
service be made by a United States marshal or deputy marshal or by a person specially
appointed by the court." Fed. R. Civ. P. 4(c)(3). In order to advance the disposition of this
action, and in light of the fact that plaintiff is proceeding pro se, to effectuate service by the
United States Marshal plaintiff must (1) pay the service fee due to the U.S. Marshal in full in
advance;2 and (2) provide all necessary papers for service, including a completed U.S.
Marshals Form (which may be obtained from the Office of the Clerk of the Court) for the
remaining defendants, and a copy of the complaint for each of the remaining defendants.
Plaintiff is directed to send the service documents and payment of the service fee to the Clerk
of the United States District Court, Northern District of New York, 7th Floor, Federal Building,
100 S. Clinton St., Syracuse, New York 13261-7367, to be forwarded by the Clerk to the U.S.
WHEREFORE, it is hereby
ORDERED that plaintiff's Eighth Amendment claims against Dischiavo are
DISMISSED without prejudice pursuant to 28 U.S.C. § 1915A(b) for failure to state a claim
upon which relief may be granted3; and it is further
ORDERED that Dischiavo is DISMISSED as a defendant herein; and it is further
ORDERED that plaintiff's Eighth Amendment claims against Barnhart, Muha, Hubal,
Gebo, and Leddick survive the Court's sua sponte review under 28 U.S.C. § 1915A(b) and
Payment of the service fee must be made by money order or certified check payable to "U.S. Marshal."
For service by mail, the fee is $8.00 per summons and complaint. The cost of service by mail on the remaining
defendants is $40.00. Plaintiff is advised that if initial service is unsuccessful, he will be required to pay the U.S.
Marshal any additional fees, also in advance, for subsequent service attempts according to the fee schedule set
by the U.S. Marshal.
If plaintiff wishes to pursue any claim dismissed without prejudice, he is advised to that, if accepted for
filing, any amended complaint will entirely replace the original complaint and incorporation of prior claims is not
require a response; and it is further
ORDERED that plaintiff is afforded an opportunity to request an order of this Court
directing service by the U.S. Marshal and provide payment of the service fee to the U.S.
Marshal in full by money order or certified check; and it is further
ORDERED that upon plaintiff's request for assistance with service of process, the
Clerk shall return the file to the Court for further review; and it is further
ORDERED that if plaintiff does not request for assistance with service of process
within twenty (20) days of the filing date of this Decision and Order, the Clerk shall issue
summonses and forward them to plaintiff, who shall be responsible for effecting service of
process on defendants. Upon issuance of the summonses, the Clerk shall send a copy of the
summonses and complaint to the Office of the New York Attorney General, together with a
copy of this Decision and Order; and it is further
ORDERED that defendants or their counsel, file a response to the complaint as
provided for in the Federal Rules of Civil Procedure after service of process upon them; and it
ORDERED, that all pleadings, motions and other documents relating to this action
must bear the case number assigned to this action and be filed with the Clerk of the United
States District Court, Northern District of New York, 7th Floor, Federal Building, 100 S.
Clinton St., Syracuse, New York 13261-7367. Any paper sent by a party to the Court or
the Clerk must be accompanied by a certificate showing that a true and correct copy of
same was served on all opposing parties or their counsel. Any document received by
the Clerk or the Court which does not include a proper certificate of service will be
stricken from the docket. Plaintiff must comply with any requests by the Clerk’s Office for
any documents that are necessary to maintain this action. All parties must comply with Local
Rule 7.1 of the Northern District of New York in filing motions. Plaintiff is also required to
promptly notify the Clerk’s Office and all parties or their counsel, in writing, of any
change in his address; their failure to do so will result in the dismissal of his action;
and it is further
ORDERED that the Clerk of the Court shall serve a copy of this Decision and Order on
plaintiff in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: December 30, 2016
Albany, New York
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