Salaam v. Williams et al

Filing 117

MEMORANDUM-DECISION AND ORDER: The Court hereby ORDERS that the recommendations in the Report-Recommendation, Dkt. No. 115 , are ADOPTED for the reasons stated herein; and the Court furtherORDERS that Defendants' motion for summary judgment, Dk t. No. 108 , is GRANTED in part and DENIED in part. The motion is granted in that the following claims are DISMISSED: the Fourteenth Amendment equal protection claim against both Defendants and the Eighth Amendment failure to protect claim against Defendant CO Stock. The motion is DENIED as to the Eighth Amendment failure to protect claim against Defendant CO Zehr. Signed by U.S. District Judge Anne M. Nardacci on 5/22/2023. (Copy served via regular mail)(meb)

Case 9:19-cv-00689-AMN-TWD Document 117 Filed 05/22/23 Page 1 of 17

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
RASHAD SALAAM,
Plaintiff,
-against-

9:19-cv-00689 (AMN/TWD)

GORDON STOCK and TRAVIS M. ZEHR,
Defendants.
APPEARANCES:

OF COUNSEL:

RASHAD SALAAM
14-A-3363
Clinton Correctional Facility
P.O. Box 2001
Dannemora, NY 12929
Plaintiff, pro se
LETITICA JAMES
Attorney General of the State of New York
The Capitol
Albany, NY 12224
Attorney for Defendant

STEVE NGUYEN, ESQ.
Assistant Attorney General

Hon. Anne M. Nardacci, United States District Judge:
MEMORANDUM-DECISION AND ORDER
I.

INTRODUCTION
On May 30, 2019, plaintiff pro se Rashad Salaam (“Plaintiff”), an inmate in the custody of

the New York State Department of Corrections and Community Supervision (“DOCCS”),
commenced this action pursuant to 42 U.S.C. § 1983. See Dkt. No. 1. Plaintiff sought and was
granted leave to proceed in forma pauperis. Dkt. Nos. 11 & 15. Plaintiff’s fourth amended
complaint (“FAC”) was accepted for filing on August 11, 2021, in which Plaintiff alleged

Case 9:19-cv-00689-AMN-TWD Document 117 Filed 05/22/23 Page 2 of 17

Fourteenth Amendment equal protection and Eighth Amendment failure to protect claims against
Corrections Officer (“CO”) Gordon Stock and CO Travis Zehr (collectively, “Defendants”). See
Dkt. No. 83. On July 20, 2022, Defendants filed a motion for summary judgment seeking dismissal
of the FAC. See Dkt. No. 108. This matter was referred to United States Magistrate Judge Thérèse
Wiley Dancks, who, on February 27, 2023, issued a Report-Recommendation and Order (“ReportRecommendation”), recommending that Defendants’ motion for summary judgment, Dkt. No.
108, be granted in part and denied in part. See Dkt. No. 115 at 19. Magistrate Judge Dancks
advised that under 28 U.S.C. § 636(b)(1), the parties had fourteen days within which to file written
objections and that failure to object to the Report-Recommendation within fourteen days would
preclude appellate review. Id. Plaintiff timely filed a response to the Report-Recommendation.
Dkt. No. 116.
For the reasons stated herein, the Court adopts the recommendations in the ReportRecommendation.
II.

BACKGROUND1
Plaintiff alleges that he2 was sexually assaulted on July 22, 2017, and physically assaulted

on July 25, 2017, by another inmate, Jason Williams (“Williams”), while he was incarcerated at
Auburn Correctional Facility (“Auburn C.F.”). See Dkt. No. 83. According to Plaintiff, at
approximately 7:30 a.m. on July 22, 2017, Williams entered Plaintiff’s cell and sexually assaulted
him for approximately three minutes while CO Stock was overlooking the gallery and opening the

1

Plaintiff’s factual allegations are detailed in the Report-Recommendation. See Dkt. No. 115 at
5-6.
2

Because Plaintiff has alleged and testified that he no longer identifies as transgender, the Court
will refer to Plaintiff as “he” or “him” herein.
2

Case 9:19-cv-00689-AMN-TWD Document 117 Filed 05/22/23 Page 3 of 17

cells for breakfast in Plaintiff’s cell block. Dkt. No. 83 at 3; Dkt. No. 108-4 at 22-23, 25.3 Plaintiff
did not report the attack at the time because Williams threatened to kill him if he told anyone about
the attack. Dkt. No. 108-4 at 25-27. Plaintiff contends that he would not have been assaulted if
CO Stock had made his rounds on time or pulled a pin during the attack. Dkt. No. 83 at 1.
Plaintiff alleges that he was physically assaulted on July 25, 2017, by Williams, when CO
Zehr was opening cells for inmates after recreation at or around 10 p.m. Dkt. No. 83 at 3-4; Dkt.
No. 108-4 at 36. According to Plaintiff, Williams came up behind him and cut his face with a
razor. Dkt. No. 108-4 at 35. Plaintiff went back into his cell, but Williams followed him and cut
Plaintiff’s right arm before returning to his own cell. Dkt. No. 108-4 at 35, 39-40. Plaintiff
contends that CO Zehr stood at the end of the gallery watching as Williams assaulted him. Dkt.
No. 83 at 3-4. Plaintiff alleges that CO Zehr did not pull a pin or otherwise give attention to the
situation. Id. Plaintiff also claims CO Zehr walked by his cell “smiling in a childish way” four to
five minutes after the incident while Plaintiff was bleeding from his face and arm. Dkt. No. 1084 at 35-36, 40. Plaintiff further alleges he had to call CO Zehr back and ask him to go to the
infirmary. Dkt. No. 108-4 at 35-36. CO Zehr allegedly told Plaintiff to wait, completed his rounds,
and then sent Plaintiff to the infirmary. Dkt. No. 108-4 at 36. Plaintiff still has scars on his face
and arm from the incident. Dkt. No. 108-4 at 46.
Plaintiff contends that he was “neglected” or “ignored” by CO Stock and CO Zehr because
he previously identified as transgender and because he was convicted of murdering someone who
was related to a CO. Dkt. No. 83 at 3. Plaintiff further contends that the fact that he previously
identified as transgender and had a history of being sexually assaulted in other DOCCS facilities

3

Citations to Court documents utilize the pagination generated by CM/ECF docketing system and
not the documents’ internal pagination.
3

Case 9:19-cv-00689-AMN-TWD Document 117 Filed 05/22/23 Page 4 of 17

had spread throughout his block and the prison. Dkt. No. 83 at 2-3; Dkt. No. 108-4 at 48. As a
result, other inmates loudly taunted him, and thus the Auburn C.F. COs had knowledge of
Plaintiff’s background. See Dkt. No. 83 at 2-3.
III.

STANDARD OF REVIEW
A. Summary Judgment
A court may grant a motion for summary judgment only if it determines that there is no

genuine issue of material fact to be tried and that the facts as to which there is no such issue warrant
judgment for the movant as a matter of law. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29,
36 (2d Cir. 1994) (citations omitted). “The mere existence of a scintilla of evidence in support of
the plaintiff’s position will be insufficient; there must be evidence on which the jury could
reasonably find for the plaintiff.” Jeffreys v. City of New York, 426 F.3d 549, 554 (2d Cir. 2005)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)) (emphasis in original). In
other words, “a nonmoving party must offer some hard evidence showing that [his] version of the
events is not wholly fanciful.” Id. (citation and internal quotation marks omitted). Moreover, the
court “cannot try issues of fact; it can only determine whether there are issues to be tried.” See
Chambers, F.3d at 36-37 (quotation and other citation omitted). Any assessments of credibility
and all choices between available inferences are matters to be left for a jury, not matters to be
decided by the Court on summary judgment. See Celotex Corp. v. Catrett, 477 U.S. 317 (1986)
(citing Fed. R. Civ. P. 56(c), (e)).
In assessing the record to determine whether any issues of material fact exist, the court is
required to resolve all ambiguities and draw all reasonable factual inferences in favor of the

4

Case 9:19-cv-00689-AMN-TWD Document 117 Filed 05/22/23 Page 5 of 17

nonmoving party. See Chambers, 43 F.3d at 36 (citing, inter alia, Anderson, 477 U.S. at 255).4
Where a party is proceeding pro se, like here, the court must “read his supporting papers liberally,
and . . . interpret them to raise the strongest arguments that they suggest.” Burgos v. Hopkins, 14
F.3d 787, 790 (2d Cir. 1994); accord Soto v. Walker, 44 F.3d 169, 173 (2d Cir. 1995). “However,
a pro se party’s ‘bald assertion,’ completely unsupported by evidence, is not sufficient to overcome
a motion for summary judgment.” Lee v. Coughlin, 902 F. Supp. 424, 429 (S.D.N.Y. 1995)
(quoting Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991)).
B. Review of Report-Recommendation
A district court reviews de novo those portions of a magistrate judge’s reportrecommendations that have been properly preserved with a specific objection.

28 U.S.C.

§ 636(b)(1)(C). “To be ‘specific,’ the objection must, with particularity, ‘identify [1] the portions
of the proposed findings, recommendations, or report to which it has an objection and [2] the basis
for the objection.’” Petersen v. Astrue, 2 F. Supp. 3d 223, 228-29 (N.D.N.Y. 2012) (alteration in
original) (quoting N.D.N.Y. Local Rule 72.1(c)). When a party files “[g]eneral or conclusory
objections, or objections which merely recite the same arguments [previously] presented to the
magistrate judge,” the district court reviews a magistrate judge’s report-recommendations for clear
error. O’Diah v. Mawhir, No. 9:08-CV-322 (TJM)(DRH), 2011 WL 933846, at *1 (N.D.N.Y.
Mar. 16, 2011) (citations omitted); accord Mario v. P & C Food Markets, Inc., 313 F.3d 758, 766
(2d Cir. 2002) (a “statement, devoid of any reference to specific findings or recommendations to

4

Where, as here, the non-movant fails to dispute the movant’s statement of material facts, the court
may not rely solely on the moving party’s Rule 56.1 statement; rather, the court must be satisfied
that the citations to evidence in the record support the movant’s assertions. See Giannullo v. City
of N.Y., 322 F.3d 139, 143 n. 5 (2d Cir. 2003) (holding that not verifying in the record the assertions
in a motion for summary judgment “would derogate the truth-finding functions of the judicial
process by substituting convenience for facts”).  
5

Case 9:19-cv-00689-AMN-TWD Document 117 Filed 05/22/23 Page 6 of 17

which [the plaintiff] objected and why, and unsupported by legal authority, was not sufficient to
preserve” a claim).
“[I]n a pro se case, the court must view the submissions by a more lenient standard than
that accorded to ‘formal pleadings drafted by lawyers.’” Govan v. Campbell, 289 F. Supp. 2d 289,
295 (N.D.N.Y. 2007) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)) (additional citations
omitted). The Second Circuit has held that courts are obligated to “‘make reasonable allowances
to protect pro se litigants’” from inadvertently forfeiting legal rights merely because they lack a
legal education. Govan, 289 F. Supp. 2d at 295 (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir.
1983)). That said, “even a pro se party’s objections to a Report and Recommendation must be
specific and clearly aimed at particular findings in the magistrate’s proposal . . ..” Machicote v.
Ercole, No. 06 Civ. 13320 (DAB)(JCF), 2011 WL 3809920, at *2, (S.D.N.Y. Aug. 25, 2011)
(citation omitted); accord Caldwell v. Petros, No. 1:22-cv-567 (BKS/CFH), 2022 WL 16918287,
at *1 (N.D.N.Y. Nov. 14, 2022). After appropriate review, “the court may accept, reject or modify,
in whole or in part, the findings or recommendations made by the magistrate [judge].” 28 U.S.C.
§ 636(b)(1)(C).
IV.

DISCUSSION
Defendants did not file objections to the Report-Recommendation. In response to the

Report-Recommendation, Plaintiff submitted a document docketed as an objection. Dkt. No. 116.
However, Plaintiff’s submission restates certain of the allegations in the FAC, compare Dkt. No.
116, with Dkt. No. 83, and does not reference the Report-Recommendation or identify any
objection to the analysis in the Report-Recommendation.5 Plaintiff has thus failed to preserve an

5

Although it is titled “Written Objection,” Plaintiff’s document presents as more akin to a
settlement demand than as an objection to the Report-Recommendation. See Dkt. No. 116. Instead
of the $100,000 in monetary damages initially sought, Plaintiff states that he now seeks $5,000 in
6

Case 9:19-cv-00689-AMN-TWD Document 117 Filed 05/22/23 Page 7 of 17

objection. Therefore, the Court reviews the Report-Recommendation for clear error.
A. Plaintiff’s Equal Protection Claim
Magistrate Judge Dancks recommended that Plaintiff’s Fourteenth Amendment equal
protection claim against Defendants be dismissed. Dkt. No. 115 at 19. For the reasons stated
below, the Court adopts Magistrate Judge Dancks’ recommendation.
i. Legal Standard
“The Equal Protection Clause of the Fourteenth Amendment requires that all persons
similarly situated be treated in the same manner.” Allen v. Cuomo, 100 F.3d 253, 260 (2d Cir.
1996) (citing City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985)). “To prove an
equal protection violation, claimants must prove purposeful discrimination, directed at an
identifiable or suspect class.” Giano v. Senkowski, 54 F.3d 1050, 1057 (2d Cir. 1995) (citations
omitted). Where there are no allegations of membership in a suspect or protected class, the plaintiff
may still prevail on an equal protection claim under either a selective enforcement or a class of
one theory.6 See Cobb v. Pozzi, 363 F.3d 89, 109-11 (2d Cir. 2004); Vaher v. Town of Orangetown,
N.Y., 916 F. Supp. 2d 404, 433 (S.D.N.Y. 2013); see also Emblen v. Port Authority of New
York/New Jersey, No. 00 Civ. 8877 (AGS), 2002 WL 498634, at *7 (S.D.N.Y. Mar. 29, 2002)
(allowing plaintiff’s equal protection claim under the class of one theory to proceed where the
plaintiff was not homosexual but alleged that he was perceived and discriminated against as
such) (citing Harlen Assocs. v. Incorporated Village of Mineola, 273 F.3d 494, 499 (2d Cir.

monetary damages to resolve his Eighth Amendment failure to protect claim against CO Zehr. See
id.
6

The Second Circuit treats claims under the selective enforcement theory and the class of one
theory as separate claims. See Casciani v. Nesbitt, 392 F. App’x. 887, 888 (2d Cir. 2010)
(summary order); Gentile v. Nulty, 769 F. Supp. 2d 573, 579 (S.D.N.Y. 2011) (noting that courts
in the Second Circuit “have generally treated selective enforcement and class of one theories as
distinct theories with distinct elements of proof.” (citations and internal quotation marks omitted)).
7

Case 9:19-cv-00689-AMN-TWD Document 117 Filed 05/22/23 Page 8 of 17

2001)).
To state a claim under the selective enforcement theory, “a plaintiff must allege facts
supporting a conclusion that 1) he was ‘treated differently from other similarly situated’
comparators, and 2) ‘that such differential treatment was based on impermissible considerations
such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious
or bad faith intent to injure a person.’” Missere v. Gross, 826 F. Supp. 2d 542, 560 (S.D.N.Y.
2011) (quoting Cine SK8, Inc. v. Town of Henrietta, 507 F.3d 778, 790 (2d Cir. 2007) (internal
quotation marks omitted)). Finally, a plaintiff can state an equal protection claim under the “class
of one” theory by alleging that he has been intentionally and “irrationally singled out.” Engquist
v. Or. Dep’t of Agric., 553 U.S. 591, 601 (2008). A plausible class of one claim requires the
plaintiff to demonstrate an “extremely high degree of similarity” with the person to whom he is
comparing himself to. Ruston v. Town Bd. for Town of Skaneateles, 610 F.3d 55, 59 (2d Cir. 2010)
(citation and internal quotation marks omitted).
ii. Application
Plaintiff contends that his Fourteenth Amendment rights were violated on two separate
occasions by two different DOCCS corrections officers.7 See Dkt. No. 83. Plaintiff alleges that
CO Stock violated his Fourteenth Amendment rights when he failed to protect him from being
sexually assaulted by Williams on July 22, 2017. Id. at 1. Plaintiff also alleges that CO Zehr failed
to protect him from being physically assaulted by Williams on July 25, 2017. Id. at 3-4. Plaintiff
contends that Defendants failed to protect him from being assaulted for two reasons: (1) because

7

Plaintiff uses the words “neglected” and “ignored” to describe the basis for his equal protection
claim against Defendants. Dkt. No. 83 at 3. Construing Plaintiff’s submissions and arguments
liberally, the Court understands Plaintiff to be alleging that Defendants failed to protect him from
being sexually and physically assaulted by Williams.
8

Case 9:19-cv-00689-AMN-TWD Document 117 Filed 05/22/23 Page 9 of 17

he was convicted of murdering someone related to a CO; and (2) because he previously identified
as transgender. Id. at 3.
1. CO Stock
As an initial matter, Plaintiff has no legally cognizable claim under the Fourteenth
Amendment against CO Stock. It is undisputed that CO Stock was not physically present for,
involved in, or a witness to Plaintiff’s alleged sexual assault by Williams on July 22, 2017. See
Dkt. No. 108-2 at 2-3; Dkt. No. 108-4 at 27-28. The summary judgment record, including
Plaintiff’s testimony, demonstrates that CO Stock was not present at the time the sexual assault
occurred.8 Id. Therefore, the evidence before the Court fails to establish that CO Stock treated
Plaintiff differently than those similarly situated—he simply was not present in Plaintiff’s cell
block at the time of the alleged assault and thus could not have engaged in any treatment of Plaintiff
whatsoever with respect to the alleged assault. Id. Therefore, the Court adopts Magistrate Judge
Dancks’ recommendation that Plaintiff’s equal protection claim against CO Stock be dismissed.
2. CO Zehr
The Court also adopts Magistrate Judge Dancks’ recommendation that Plaintiff’s equal
protection claim against CO Zehr be dismissed. Magistrate Judge Dancks correctly found that
Plaintiff’s equal protection claim against CO Zehr fails as a matter of law. See Dkt. No. 115 at 710.
The Court will first address whether Plaintiff is a member of an identifiable or suspect

8

Plaintiff alleges that he was sexually assaulted by Williams because CO Stock failed to pull a pin
and/or failed to timely complete his rounds. Dkt. No. 83 at 1. Plaintiff’s allegations are refuted
by the summary judgment record. First, CO Stock could not have pulled a pin because he was not
present—and was not supposed to be present—on Plaintiff’s cell block at the time the alleged
assault occurred, and second, CO Stock performed his duties consistent with his established
schedule. See Dkt. No. 108-2 at 2-3; Dkt. No. 108-4 at 27-28.
9

Case 9:19-cv-00689-AMN-TWD Document 117 Filed 05/22/23 Page 10 of 17

class. Plaintiff alleges two different bases for his equal protection claim, which the Court will
analyze separately. Beginning with Plaintiff’s contention that CO Zehr failed to protect him
because he was convicted of murdering someone related to a corrections officer—Plaintiff is not
a member of a suspect class because he was convicted of murdering someone related to a
corrections officer. See Lee v. Governor of State of N.Y., 87 F.3d 55, 60 (2d Cir. 1996) (“prisoners
either in the aggregate or specified by offense are not a suspect class”); Mathie v. Dennison, No.
06 CIV. 3184 (GEL), 2007 WL 2351072, at *8 (S.D.N.Y. Aug. 16, 2007), aff’d, 381 F. App’x 26
(2d Cir. 2010) (“Prisoners are not a suspect class . . .. Nor are violent prisoners a suspect class. A
history of violent crime is the very opposite of a morally irrelevant, immutable trait: it reflects a
voluntary choice by the offender to commit a dangerous and harmful criminal act when he could
have complied with the law.”); Scott v. Dennison, 739 F. Supp. 2d 342, 362 (W.D.N.Y. 2010)
(“neither violent felons nor non-violent felons are a ‘suspect class’ under the United States
Constitution”).
The Court next addresses Plaintiff’s contention that CO Zehr failed to protect him because
he previously identified as transgender. Defendants argue that Plaintiff is not a member of a
suspect class because Plaintiff did not identify as transgender at the time the alleged assaults
occurred. See Dkt. No. 108-5 at 12-13. Defendants also argue that even if Plaintiff was
transgender at the time the alleged assaults occurred, Plaintiff would not be entitled to heightened
scrutiny because there is no Supreme Court or Second Circuit case addressing whether transgender
individuals are members of a protected or suspect class. See id. at 12.
First, Defendants are correct that Plaintiff is not a member of a protected or suspect class
because he previously identified as transgender. Plaintiff testified that he was born a male and
currently identifies as male. Dkt. No. 108-4 at 18. Plaintiff also testified that he identified as

10

Case 9:19-cv-00689-AMN-TWD Document 117 Filed 05/22/23 Page 11 of 17

transgender from 2009 to 2011 but ceased to do so when he was incarcerated in 2011. Id. at 19.
Thus, for purposes of resolving CO Zehr’s motion for summary judgment as to Plaintiff’s equal
protection claim, the Court need not determine whether transgender persons are members of a
protected or suspect class because Plaintiff in this action does not currently identify as
transgender.9
However, the Court notes that Defendants are correct in that neither the Supreme Court nor
the Second Circuit has provided guidance on this point. Moreover, there is a lack of uniformity
among the district courts in this Circuit that have addressed the question of whether transgender
plaintiffs are members of a protected class whose equal protection claims are entitled to heightened
scrutiny. Compare Adkins v. City of New York, 143 F. Supp. 3d 134, 139 (S.D.N.Y. 2016)
(concluding that transgender persons are a quasi-suspect class and are thus entitled to intermediate
scrutiny) with White v. City of New York, 206 F. Supp. 3d 920, 933 (S.D.N.Y. 2016) (concluding
that neither the Supreme Court nor the Second Circuit has held that transgender persons are
members of a protected or suspect class whose claims are entitled to heightened scrutiny). The
Adkins court relied on the four-factor test set forth in Windsor v. United States, 699 F.3d 169 (2d
Cir. 2012), in which the Second Circuit held that homosexual persons are a quasi-suspect class and
are entitled to intermediate scrutiny. 143 F. Supp. 3d at 139-140. The Adkins court acknowledged
that although transgender individuals and homosexual individuals are not identical, they are
“similarly situated with respect to each of Windsor’s four factors[,]” because transgender
individuals have “suffered a history of persecution and discrimination,” “transgender status bears
no relation to the ability to contribute to society,” “transgender status is a sufficiently discernable

9

The Court notes that Plaintiff need not be a member of a protected or suspect class to proceed
with an equal protection claim under a selective enforcement or class of one theory. The Court
assesses the sufficiency of such claims infra.
11

Case 9:19-cv-00689-AMN-TWD Document 117 Filed 05/22/23 Page 12 of 17

characteristic to define a discrete minority class,” and “transgender people are a politically
powerless minority.”10 Id. at 139. Thus, the Adkins court held that Windsor clearly established
equal protection rights for not only homosexual individuals, but also transgender individuals. Id.
at 139-140; see also Johnson v. Padin, No. 3:20-CV-637 (CSH), 2020 WL 4818363, at *3 (D.
Conn. Aug. 16, 2020). By contrast, in White, which was decided approximately a month later than
Adkins, the court declined to extend the holding in Windsor to transgender plaintiffs. White, 206
F. Supp. 3d at 933 (“While there is certainly an argument to be made that the Windsor holding
should be expanded to transgender persons . . . it [is] not the clearly established law of this Circuit
. . .”); see Shtilman v. Makram, No. 14-CV-6589 (NSR), 2018 WL 3745670, at *7 (S.D.N.Y. Aug.
6, 2018) (stating that neither the Supreme Court nor the Second Circuit has held that transgender
individuals are members of a protected class).
Even assuming arguendo that Plaintiff still identified as transgender at the time of the
alleged assaults and adequately alleged intentional or purposeful discrimination on the part of CO
Zehr, Plaintiff’s equal protection claim against CO Zehr would be dismissed because CO Zehr is
entitled to qualified immunity. Qualified immunity shields government officials from liability for
money damages for violation of a right under federal law if “their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would have known.”
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). It allows government officials to make reasonable
judgments and is said to protect “all but the plainly incompetent or those who knowingly violate
the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986). “Qualified immunity bars a plaintiff’s claim

10

Although Adkins found that the plaintiff established a violation of the Fourteenth Amendment,
the court granted the individual defendants’ motion to dismiss because qualified immunity applied.
Adkins, 143 F. Supp. 3d at 140. The court held that qualified immunity applied because plaintiff’s
rights were not clearly established at the time of his arrest, which occurred a year prior to the
decision in Windsor v. United States. Id.
12

Case 9:19-cv-00689-AMN-TWD Document 117 Filed 05/22/23 Page 13 of 17

unless (1) the official violated a statutory or constitutional right, and (2) that right was clearly
established at the time of the challenged conduct.” Matzell v. Annucci, 64 F.4th 425, 434 (2d Cir.
2023) (citing Francis v. Fiacco, 942 F.3d 126, 139 (2d Cir. 2019)). A right is clearly established
when “[t]he contours of the right [are] sufficiently clear that a reasonable official would understand
that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987); see
Jackler v. Byrne, 658 F.3d 225, 242 (2d Cir. 2011). “To determine whether a law is clearly
established, this Court considers ‘the specificity with which a right is defined, the existence of
Supreme Court or Court of Appeals case law on the subject, and the understanding of a reasonable
officer in light of preexisting law.’” Matzell, 64 F.4th at 434 (quoting Terebesi v. Torreso, 764
F.3d 217, 231 (2d Cir. 2014)). Because it was not (and still is not) the clearly established law of
this Circuit that transgender plaintiffs are members of a protected or suspect class whose equal
protection claims are entitled to heightened scrutiny, CO Zehr “could not be expected to anticipate
that [his] actions would be subject to any standard more stringent than rational basis review,” see
White, 206 F. Supp. 3d at 933, and is therefore entitled to qualified immunity on Plaintiff’s equal
protection claim. See id. (holding that qualified immunity applied to the individual defendants
because plaintiff’s rights were not clearly established at the time of the alleged discrimination
occurred); Adkins, 143 F. Supp. 3d at 140 (same).
The Court next considers whether Plaintiff has alleged a cognizable equal protection claim
under either a selective enforcement or a class of one theory. The Court finds that Plaintiff has
failed to do so. Plaintiff’s claim under these theories fails because he does not allege any facts
from which the Court can discern that he was treated differently from similarly situated inmates.
See Mosdos Chofetz Chaim, Inc. v. Village of Wesley Hills, 815 F. Supp. 2d 679, 693 (S.D.N.Y.
2011) (“There are two types of equal protection claims that require similarly situated comparators

13

Case 9:19-cv-00689-AMN-TWD Document 117 Filed 05/22/23 Page 14 of 17

. . . selective enforcement or selective treatment claims . . . [and] ‘class of one’ claims . . .”); see
also Ruggiero v. Fischer, 807 F. App’x 70, 74 (2d Cir. 2020) (“[C]lass-of-one plaintiffs must show
an extremely high degree of similarly between themselves and persons to whom they compare
themselves.”) (quoting Clubside, Inc. v. Valentin, 468 F.3d 144, 159 (2d Cir. 2006)). Plaintiff only
alleges that he was “ignored” and “neglected” by CO Zehr because he previously identified as
transgender and/or because he was convicted of murdering someone related to a CO. Dkt. No. 83
at 3. He identifies no comparators. See generally Dkt. No. 83. These factual allegations are
insufficient to demonstrate disparate treatment from those similarly situated, even with recognition
of Plaintiff’s pro se status.

Accordingly, the Court adopts Magistrate Judge Dancks’

recommendation that Defendants’ motion for summary judgment be granted as to Plaintiff’s
Fourteenth Amendment equal protection claim against CO Zehr.
B. Plaintiff’s Failure to Protect Claim
Magistrate Judge Dancks recommended that Plaintiff’s Eighth Amendment failure to
protect claim against CO Stock be dismissed, but that Plaintiff’s Eighth Amendment failure to
protect claim against CO Zehr proceed to trial. Dkt. No. 115 at 19. For the reasons stated below,
the Court adopts these recommendations.
To prevail on a failure to protect claim, a plaintiff must demonstrate two elements, one that
is subjective, and one that is objective. See Farmer v. Brennan, 511 U.S. 825, 828-34 (1994). To
satisfy the objective prong, “the inmate must show that he is incarcerated under conditions posing
a substantial risk of serious harm.” Id. at 834. To satisfy the subjective prong, the plaintiff must
prove deliberate indifference on the part of the official. See Hayes v. New York City Dep’t of Corr.,
84 F.3d 614, 620 (2d Cir. 1996) (citing Farmer, 511 U.S. at 833). That is, “the plaintiff must show
that the ‘official [knew] of and disregard[ed] an excessive risk to inmate health or safety.’”

14

Case 9:19-cv-00689-AMN-TWD Document 117 Filed 05/22/23 Page 15 of 17

Celestin v. Premo, No. 9:12-cv-301 (GLS/RFT), 2014 WL 272443, at *5 (N.D.N.Y. Jan. 24, 2014)
(quoting Farmer, 511 U.S. at 836) (alterations in original). Moreover, the “official must both be
aware of facts from which the inference could be drawn that a substantial risk of serious harm
exists, and he must also draw the inference.” Id. (emphasis in original). Mere negligence by a
prison official will be insufficient to establish deliberate indifference. See Hathaway v. Coughlin,
37 F.3d 63, 66 (2d Cir. 1994) (“Deliberate indifference requires more than negligence, but less
than conduct undertaken for the very purpose of causing harm.”).
Magistrate Judge Dancks correctly concluded that Plaintiff cannot satisfy the elements of
a failure to protect claim against CO Stock. See Dkt. No. 115 at 12-14. As a threshold matter,
Plaintiff’s failure to protect claim against CO Stock fails for the same reason his equal protection
claim against CO Stock fails. As discussed in Section IV.A.ii.1 supra, there is simply no evidence
that CO Stock was on Plaintiff’s cell block at the time Plaintiff alleges the sexual assault occurred.
See Dkt. No. 108-2 at 2-3; Dkt. No. 108-4 at 28. As such, CO Stock could not have prevented
Williams from allegedly sexually assaulting Plaintiff on July 22, 2017. Moreover, Plaintiff has
not adequately alleged that CO Stock was aware prior to (or at the time of) the sexual assault that
Plaintiff previously identified as transgender and that he had been sexually assaulted at previous
DOCCS facilities, such that there was a substantial risk of serious harm to Plaintiff to which CO
Stock was deliberately indifferent.11 In sum, Plaintiff has failed to allege facts sufficient to
establish a failure to protect claim against CO Stock. Accordingly, the Court adopts Magistrate

11

In the FAC, Plaintiff simply refers to “he” in the sentences in which he describes his bases for
why he believes that the COs “allowed” him to be assaulted by Williams. See Dkt. No. 83 at 2
(“He overheard inmates from the other tiers harassing me about my sexuality and everything else.
He knew this were (sic) an ongoing issue of mine, where I have been raped on several occasions
at other facilities.” (emphasis added)). Even with recognition of Plaintiff’s pro se status and the
solicitude afforded therewith, the Court cannot speculate as to who “he” is—“he” could be CO
Stock, CO Zehr, or some unnamed CO. See also Dkt. 115 at 13-14.
15

Case 9:19-cv-00689-AMN-TWD Document 117 Filed 05/22/23 Page 16 of 17

Judge Dancks’ recommendation that Defendants’ motion for summary judgment as to Plaintiff’s
Eighth Amendment failure to protect claim against CO Stock be granted.
In addition, Magistrate Judge Dancks correctly concluded that Plaintiff’s Eighth
Amendment failure to protect claim against CO Zehr should proceed to trial because a reasonable
jury could find that CO Zehr was deliberately indifferent to an excessive risk to inmate health and
safety when he failed to intervene at the time that he saw Williams “making violent swinging
motions” inside Plaintiff’s cell during the alleged assault on July 25, 2017. Dkt. No. 115 at 15
(citing Dkt. No. 108-3 at 20). The Court adopts Magistrate Judge Dancks’ recommendation that
Defendants’ motion for summary judgment be denied as to Plaintiff’s Eighth Amendment failure
to protect claim against CO Zehr. See, e.g., Heisler v. Kralik, 981 F. Supp. 830, 837 (S.D.N.Y.
1997), aff’d sub nom. Heisler v. Rockland Cnty., 164 F.3d 618 (2d Cir. 1998) (denying defendant’s
motion for summary judgment where the plaintiff alleged that another inmate, whom plaintiff had
no alleged previous altercations with, attacked him while he was being held as a pretrial detainee,
and officers witnessed the assault but failed to intercede to stop it); Stewart v. Schiro, No. 13-CV3613 (NGG)(VMS), 2015 WL 1854198, at *8 (E.D.N.Y. Apr. 22, 2015) (“under certain
circumstances, the commencement of an inmate-to-inmate altercation could put a prison official
on sufficient notice to render the prison official deliberately indifferent if he or she then fails to
intervene in an appropriate manner”); Candelaria v. Coughlin, No. 91 Civ. 2978, 1996 WL 88555,
at *9 (S.D.N.Y. Mar. 1, 1996) (inaction by a correction officer to intercede and halt an attack by a
fellow prisoner is sufficient basis for deliberate indifference). Additionally, the Court agrees with
Magistrate Judge Dancks’ finding that CO Zehr is not entitled to qualified immunity, see Dkt. No.
115 at 18, because Plaintiff has raised a question of fact with respect to this claim. See, e.g.,
Decayette v. Goord, No. 9:06-CV-783, 2009 WL 1606753, at *12 (N.D.N.Y. June 8, 2009)

16

Case 9:19-cv-00689-AMN-TWD Document 117 Filed 05/22/23 Page 17 of 17

(finding defendant was not entitled to summary judgment on qualified immunity grounds because
triable issues of fact existed as to whether she was deliberately indifferent to a serious medical
need of Plaintiff’s and as to whether she was liable for failing to intervene during the alleged
beating of Plaintiff).
Having reviewed the Report-Recommendation for clear error, and found none, the Court
adopts the recommendations in the Report-Recommendation.
V.

CONCLUSION
Accordingly, the Court hereby
ORDERS that the recommendations in the Report-Recommendation, Dkt. No. 115, are

ADOPTED for the reasons stated herein; and the Court further
ORDERS that Defendants’ motion for summary judgment, Dkt. No. 108, is GRANTED
in part and DENIED in part. The motion is granted in that the following claims are DISMISSED:
the Fourteenth Amendment equal protection claim against both Defendants and the Eighth
Amendment failure to protect claim against Defendant CO Stock. The motion is DENIED as to
the Eighth Amendment failure to protect claim against Defendant CO Zehr; and the Court further
ORDERS that the Clerk serve a copy of this Memorandum-Decision and Order on all
parties in accordance with the Local Rules.
IT IS SO ORDERED.
DATED:

May 22, 2023
Albany, New York

17