Laporte v. Keyser

Filing 54

OPINION AND ORDER re: 47 MOTION Opposition to Defendant's Motion for Summary Judgment re: 30 MOTION for Summary Judgment filed by Hector Laporte, 30 MOTION for Summary Judgment filed by William Keyser. For the foregoing reas ons, IT IS HEREBY ORDERED THAT Defendant's motion for summary judgment is GRANTED and Plaintiffs cross-motion for summary judgment is DENIED. The Clerk of Court is respectfully directed to terminate the motions pending at docket entries 30 and 47. To the extent that Plaintiff wishes to amend his Complaint, he must file a motion to amend no later than October 24, 2014. The motion should include a proposed amended complaint, which shall state with specificity Plaintiff's contemplated cl aims and shall also clearly list all defendants whom Plaintiff seeks to add. Plaintiff's motions shall also indicate whether he has properly exhausted his contemplated claims. If Plaintiff does not file a motion requesting leave to amend his Complaint by October 24, 2014, this case will be closed with prejudice. (Signed by Judge Richard J. Sullivan on 9/18/2014) Copies Mailed By Chambers. (mro)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
_____________________
No. 12-cv-9463 (RJS)
_____________________

HECTOR LAPORTE,
Plaintiff,
VERSUS

WILLIAM KEYSER,
Defendant.
_____________________
OPINION AND ORDER
September 18, 2014
_____________________
RICHARD J. SULLIVAN, District Judge:
Plaintiff Hector Laporte (“Plaintiff”), who
is currently incarcerated and proceeding pro
se, brings this action pursuant to 42 U.S.C.
§ 1983 against Defendant William Keyser,
Deputy Superintendent of Security at Sing
Sing Correctional Facility (“Defendant”),
alleging that Defendant’s failure to protect
him from another inmate constituted a
violation of the Eighth and Fourteenth
Amendments
of
the
United
States
Constitution. Now before the Court are the
parties’ cross-motions for summary judgment.
For the reasons set forth below, Defendant’s
motion is granted and Plaintiff’s motion is
denied.

I. BACKGROUND
A. Facts
As set forth in Plaintiff’s Complaint – and
referenced in Defendant’s 56.1 statement –
Plaintiff was incarcerated at the Green Haven
Correctional Facility (“Green Haven”) when, in
February 2010, he was threatened with a sharp
weapon by a fellow inmate named Armstrong.1
1

The facts are taken from Defendant’s Local Rule 56.1
Statement as well as the declarations and exhibits
attached thereto. (Doc. No. 32 (“Def. 56.1”).) Plaintiff
failed to submit his own 56.1 statement, despite
repeated reminders from the Court (see Doc. Nos. 27,
29, and 45) and his receipt of the Notice Pursuant to
Local Rule 56.2 from Defendant.
Accordingly,
because the Court finds that the facts set forth in
Defendant’s 56.1 statement are supported by evidence

(Doc. No. 2 (“Compl.”); Def. 56.1 ¶¶ 6, 8.)
Although Plaintiff maintains that, following the
incident, he requested protection from
Armstrong by yelling to Defendant as he
passed Plaintiff’s cell and by writing multiple
letters to the superintendent and other members
of the Green Haven administration (Def. 56.1.
¶¶ 9, 12–14), the undisputed evidence
submitted in connection with this motion
reflects that Defendant did not work at Green
Haven during the time in which Plaintiff
alleges to have yelled to him. (Id. ¶ 5.) In fact,
Defendant left Green Haven in January of 2008
to take a position as Deputy Superintendent of
Security for Arthur Kill Correctional Facility
(“Arthur Kill”). (Id. ¶ 3.) In September of
2009, Defendant moved from Arthur Kill to
Sing Sing Correctional Facility (“Sing Sing”),
where he currently holds his position as Deputy
Superintendent of Security. (Id. ¶ 4.)

no mention of Armstrong. (Id. ¶ 18.) On
March 29, 2010, the New York Department of
Corrections and Community Supervision
(“DOCCS”) granted Plaintiff’s request for a
facility transfer. (Id. ¶ 19.) The transfer
request likewise made no mention of
Armstrong. (Id. ¶ 20.) Rather, the cited reason
for the transfer was the animosity between
Plaintiff and inmate Hector Torres, a codefendant against whom Plaintiff had
cooperated. (Id. ¶¶ 21–22.) Plaintiff was
transferred to Sing Sing on April 6, 2010. (Id.
¶ 24.)
When an inmate is transferred to Sing Sing,
DOCCS policies require that he be interviewed
by a sergeant, who is directed to inquire as to
whether the inmate has any enemies. (Id. ¶¶
26–27.) If the inmate identifies any individuals
in response to that inquiry, the sergeant uses the
DOCCS database to investigate the matter. (Id.
¶ 28.) For every inmate, DOCCS maintains a
so-called “separation list” that indicates
whether one inmate must be separated from
another for security reasons. (Id. ¶¶ 32, 36.)
“[T]o prevent inmates from manipulating their
[s]eparation [l]ists in order to receive favorable
cell location[s] or facility transfers,” DOCCS
protocol requires a “factual substantiation of a
genuine threat” before an inmate is added to a
separation list.
(Id. ¶ 39.)
Once a
determination is made that two inmates must be
separated, each inmate is placed on the other
inmate’s separation list. (Id. ¶¶ 36–37.)

On February 10, 2010, Plaintiff was moved
to administrative segregation in the Special
Housing Unit due to concerns for his safety and
security. (Id. ¶ 16.) The recommendation for
segregation stated that Plaintiff had openly
informed uniformed staff members of several
incidents of misbehavior by other inmates,
potentially creating a hostile environment. (Id.
¶ 17.) The recommendation, however, made
in the record, see Local Civil Rule 56.1(d) (“Each
statement [included as part of the 56.1 statement] must
be followed by citation to evidence which would be
admissible[,]”), they are deemed admitted, see id.
56.1(c) (“Each numbered paragraph in the statement of
material facts . . . will be deemed to be admitted . . .
unless specifically controverted by a correspondingly
numbered paragraph in the statement required to be
served by the opposing party.”); see also Gitlow v.
United States, 319 F. Supp. 2d 478, 480 (S.D.N.Y.
2004) (“[Pro se plaintiff] submitted no Rule 56.1
Statement. In consequence, the facts set forth in
[defendant’s] statement are taken as true for purposes
of the motion.”). Nevertheless, the Court has also
considered Plaintiff’s Affirmation (Doc. No. 49
(“Aff.”)) and Plaintiff’s Declaration (Doc. No. 50
(“Decl.”)), both filed as part of Plaintiff’s opposition
papers.

Plaintiff maintains that, upon his arrival at
Sing Sing in April 2010, he told the sergeant
who interviewed him that Armstrong was an
“enemy.”
(Id. ¶¶ 24–25.)
Armstrong,
however, was never placed on Plaintiff’s
separation list. (Id. ¶ 40.) Likewise, Plaintiff
did not appear on Armstrong’s separation list.
(Id. ¶ 50–51.)
On March 21, 2011,
unbeknownst to Plaintiff, Armstrong was
transferred to Sing Sing. (Id. ¶¶ 45–46.) On
May 31, 2012, Plaintiff encountered Armstrong

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in the waiting room of the Sing Sing hospital
clinic, and a physical altercation ensued. (Id. ¶
48.) Nevertheless, the record reflects that, prior
to the May 31, 2012 incident, Defendant was
unaware of any previous interactions between
Plaintiff and Armstrong. (Id. ¶¶ 41, 50–51.)
As a result of the May 31, 2012 altercation,
Plaintiff alleges that he suffers from “chest and
back pain,” “emotional trauma,” and
“paranoi[a] that [his] life is in . . . danger from
[Armstrong]” (Compl. at 4), for which Plaintiff
seeks a “punitive and compensatory damage
award” (id. at 13).

received by the Court on December 3, 2013,
Plaintiff sought (1) an extension of time to file
his opposition to Defendant’s motion for
summary judgment, (2) leave “to obtain
affidavits and/or declarations or to take
discovery,” and (3) leave to file “several
motions” relating to discovery. (Doc. No. 37 at
3.) In an Order dated December 6, 2013, the
Court granted Plaintiff’s extension of time to
file his opposition, but denied Plaintiff’s
requests for leave to obtain additional
discovery and to make unspecified discovery
motions. (Id. at 1.) On December 16, 2013,
Plaintiff moved to amend his Complaint to
include additional defendants and add new
claims (Doc. No. 43), and on December 20,
2013, Defendant filed his opposition to
Plaintiff’s motion (Doc. No. 41).
On
December 27, 2013, the Court denied the
Plaintiff’s motion to amend without prejudice
to renewal following resolution of Defendant’s
pending motion for summary judgment. (Doc.
No. 42.) On January 28, 2014, Plaintiff filed
his opposition to Defendant’s motion for
summary judgment (Doc. No. 48 (“Opp.”)),
along with a cross-motion for summary
judgment in Plaintiff’s favor (Doc. No. 47), but
did not file a 56.1 statement with his
memorandum, despite repeated admonitions by
the Court to do so (Doc. Nos. 27, 29, and 45).3
On February 4, 2014, Defendant filed a reply
memorandum and reply 56.1 statement in

B. Procedural History
On December 28, 2012, Plaintiff
commenced this action by filing a complaint
against Defendant pursuant to § 1983, asserting
violations of his constitutional rights under the
Eighth and Fourteenth Amendments of the
United States Constitution. 2 (See Compl.) On
June 17, 2013, the Court issued a case
management plan and discovery order that
called for the completion of all discovery by
September 30, 2013. (Doc. No. 18.) On
November 21, 2013, Defendant filed the instant
motion for summary judgment pursuant to Rule
56 of the Federal Rules of Civil Procedure.
(Doc. No. 30.) Subsequently, in a letter
2

Plaintiff purports to bring this claim against
Defendant Keyser in his “individual and official
capacity.” (See Compl. at 13.) However, Plaintiff
seeks only monetary, not injunctive, relief. (See id.)
Accordingly, the Court construes this claim to be
against Defendant in his individual capacity only. See
Ying Jing Gan v. City of New York, 996 F.2d 522, 529
(2d Cir. 1993) (“To the extent that a state official is
sued for damages in his official capacity, such a suit is
deemed to be a suit against the state, and the official is
entitled to invoke the Eleventh Amendment immunity
belonging to the state.”); see also See State Employees
Bargaining Agent Coal. v. Rowland, 494 F.3d 71, 95
(2d Cir. 2007) (“[A] plaintiff may sue a state official
acting in his official capacity – notwithstanding the
Eleventh Amendment – for prospective, injunctive
relief from violations of federal law.” (citation and
internal quotation marks omitted)).

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Although Plaintiff submitted both an affirmation
(Doc. No. 49) and a declaration (Doc. No. 50), and
included a “Statement of the Facts” in his opposition
(Opp.), he did not comply with Local Civil Rule 56.1.
In any event, the “facts” listed by Plaintiff are either
not supported by evidence in the record or are
irrelevant to the instant motion. In addition, Plaintiff,
in his opposition papers, states that “[s]ince the filing
of his civil complaint against [Defendant,] [P]laintiff
has been subjected to acts of harassment, threats[,] and
acts of retaliation.” (Opp. at 9.) To the extent Plaintiff
is alleging First Amendment retaliation, this claim was
not properly raised in this action. To the extent
Plaintiff is responding to Defendant’s motion, this
topic is irrelevant to the issues before the Court.

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further support of his motion. (Doc. Nos. 51,
52.)

A. Eighth Amendment
Under the Eighth Amendment, “prison
officials have a duty . . . to protect prisoners
from violence at the hands of other prisoners.”
Farmer v. Brennan, 511 U.S. 825, 833 (1994).
Indeed, “being violently assaulted in prison is
simply not part of the penalty that criminal
offenders pay for their offenses against
society.” Farmer, 511 U.S. at 834 (citation and
internal
quotation
marks
omitted).
Accordingly, a prisoner may state an Eighth
Amendment claim under the theory that
prison officials failed to protect him. Id. at
845.

II. LEGAL STANDARD
Pursuant to Rule 56(a) of the Federal Rules
of Civil Procedure, a court may not grant a
motion for summary judgment unless “the
movant shows that there is no genuine dispute
as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). The moving party bears the
burden of showing that it is entitled to
summary judgment. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 256 (1986). The
court “is not to weigh evidence but is instead
required to view the evidence in the light most
favorable to the party opposing summary
judgment, to draw all reasonable inferences in
favor of that party, and to eschew credibility
assessments.” Amnesty Am. v. Town of W.
Hartford, 361 F.3d 113, 122 (2d Cir. 2004)
(internal quotation marks omitted); accord
Anderson, 477 U.S. at 248. Consequently, “if
there is any evidence in the record from any
source from which a reasonable inference in the
[nonmoving party’s] favor may be drawn, the
moving party simply cannot obtain a summary
judgment.” Binder & Binder PC v. Barnhart,
481 F.3d 141, 148 (2d Cir. 2007) (citation and
internal quotation marks omitted).

However, 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.” Id. at 834.
Rather, the failure to protect an inmate violates
the Constitution only where a two-part test –
encompassing both a subjective prong and an
objective prong – is met. To satisfy the
objective prong of a failure to protect claim,
“the inmate must show that he is incarcerated
under conditions posing a substantial risk of
serious harm.” Farmer, 511 U.S. at 834;
accord Randle v. Alexander, 960 F. Supp. 2d
457, 473 (S.D.N.Y. 2013). The subjective
component of the claim “follows from the
principle that only the unnecessary and
wanton infliction of pain implicates the
Eighth Amendment.” Farmer, 511 U.S. at
834 (citation and internal quotation marks
omitted). To satisfy the subjective prong, the
inmate must show that “the defendant [prison]
official[] possessed a sufficiently culpable state
of mind[.]” Trammell v. Keane, 338 F.3d 155,
162 (2d Cir. 2003). This means that “[a]
prisoner injured while in custody may recover
for violation of his Eighth Amendment rights
[only] if the injury resulted from the
defendant prison official’s purposeful
subjection of the prisoner to a ‘substantial risk
of serious harm’ or from the official’s

Because Plaintiff appears pro se in this
matter, the Court construes his submissions
liberally and interprets them “to raise the
strongest arguments [that they] suggest.”
Pabon v. Wright, 459 F.3d 241, 248 (2d Cir.
2006).
III. DISCUSSION
Plaintiff alleges that Defendant’s failure to
protect him from Armstrong violates both the
Eighth and Fourteenth Amendments. (Compl.
at 4.) For the reasons that follow, Plaintiff’s
claims fail as a matter of law.

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deliberate indifference to that risk.” Fischl v.
Armitage, 128 F.3d 50, 55 (2d Cir. 1997)
(quoting Farmer, 511 U.S. at 834). “[A]
prison official has sufficient culpable intent if
he has knowledge that an inmate faces a
substantial risk of serious harm and he
disregards that risk by failing to take reasonable
measures to abate the harm.” Hayes v. New
York City Dep’t of Corr., 84 F.3d 614, 620 (2d
Cir. 1996).

Plaintiff and Armstrong had a prior relationship
of any kind.
There is simply no evidence in the record to
suggest that Defendant was privy to the
animosity between Plaintiff and Armstrong.
The two inmates were not placed on each
other’s separation lists in the DOCCS database
(Def. 56.1 ¶ 40), and neither the transfer
request nor the request for segregation ever
mentioned the hostility between Plaintiff and
Armstrong (id. ¶¶ 18, 20). To be sure,
Plaintiff’s Affirmation states, in a wholly
conclusory fashion, that “Defendant Keyser
should have been informed by the sergeant at
intake [that Plaintiff named Armstrong as an
enemy] . . . .” (Aff. ¶ 16.) However, there is
no evidence in the record that the sergeant was
supposed to share this type of information with
Defendant, much less that Defendant was so
informed by the sergeant. See Grullon v. City
of New Haven, 720 F.3d 133, 138 (2d Cir.
2013) (“It is well settled that, in order to
establish a defendant’s individual liability in a
suit brought under § 1983, a plaintiff must
show, inter alia, the defendant’s personal
involvement in the alleged constitutional
deprivation.”). In other words, Plaintiff has put
forward no evidence of Defendant’s knowledge
about the prior relationship between Plaintiff
and Armstrong, much less evidence of a
“sufficiently culpable state of mind” on the part
of Defendant. See Trammell, 338 F.3d at 161.

In this case, it is not necessary to consider
whether Plaintiff has satisfied the objective
prong of the Eighth Amendment inquiry
because he has clearly failed to satisfy the
subjective prong. 4 Plaintiff has failed to
adduce any evidence that Defendant “kn[ew]
that [Plaintiff] face[d] a substantial risk of
serious harm” by being in the same facility as
Armstrong. See Hayes, 84 F.3d at 620. First,
Plaintiff’s assertion in his pleadings that he
shouted at Defendant from his cell in February
2010 is entitled to no weight and is belied by
the undisputed record, which shows that
Defendant was not working at Green Haven
when Plaintiff claims to have communicated
with him. (Def. 56.1 ¶¶ 5, 9, 12–14.) Second,
Plaintiff’s assertions – that he wrote numerous
letters to the superintendent at Green Haven
(id. ¶¶ 14, 44), and that, upon his arrival at Sing
Sing, he informed a sergeant that Armstrong
“was an enemy” (id. ¶ 25; Decl. ¶ 12) – are
insufficient to establish that Defendant himself
knew that Plaintiff perceived Armstrong as an
enemy, or that Defendant even knew that

Because Plaintiff cannot satisfy the
subjective element of an Eighth Amendment
claim, his allegation that Defendant failed to
protect him from Armstrong does not rise to the
level of a constitutional violation.5

4

It is not uncommon for courts to focus first on the
subjective element when deciding whether an Eighth
Amendment claim rises to the level of a constitutional
violation. See, e.g., Morales v. Seltzer, 300 F. App’x
92, 93 (2d Cir. 2008) (summary order) (affirming the
judgment of the district court because the plaintiff did
not demonstrate that a genuine issue of material fact
existed as to whether the defendants knew of and
disregarded an excessive risk to inmate health or
safety); Trammell, 338 F.3d at 162 (declining to reach
the objective element because the subjective element
was not satisfied).

B. Fourteenth Amendment
Plaintiff also purports to bring a Fourteenth
Amendment claim, alleging that Defendant
5

The Court’s conclusion obviates the need to address
Defendant’s alternative qualified immunity argument.

5

violated his "rights of procedural and
substantive due process by allowing a known
sworn enemy to be housed at the same prison
and continuing to house my sworn enemy at
the same prison." (Compl. at 4.) "To present a
due process claim [under the Fourteenth
Amendment], a plaintiff must establish (1) that
he possessed a liberty interest and (2) that the
defendant(s) deprived him of that interest as a
Ortiz v.
result of insufficient process."
McBride, 380 F.3d 649, 654 (2d Cir. 2004)
(citation and internal quotation marks omitted).
The substance of Plaintiff's allegations do not
concern Plaintiffs liberty interest. Rather, his
allegations are premised on Defendant's failure
to protect him and prevent the physical
altercation with Armstrong. See Ying Jing
Gan v. City of New York, 996 F.2d 522, 533
(2d Cir. 1993) (recognizing that the "special
relationship" between a prison and an inmate
"give[s] rise to a governmental duty to protect
against third-party attacks" that may be
actionable under the Eighth Amendment). At
their core, Plaintiffs allegations sound in the
Eighth Amendment, not the Fourteenth
Amendment. Accordingly, Plaintiff has failed
to allege a claim under the Fourteenth
Amendment.

Plaintiffs motions shall also indicate whether
he has properly exhausted his contemplated
claims. If Plaintiff does not file a motion
requesting leave to amend his Complaint by
October 24, 2014, this case will be closed with
prejudice.
SOORDERED.

~RD J. SULLIVAN
United States District Judge
Dated: September 18, 2014
New York, New York

***
Plaintiff is proceeding pro se.
Defendant is represented by Michael
Francis Albanese, State of New York, Attorney
General's Office, 120 Broadway, New York,
New York 10271

==============-=-·=-=. ·--·

r;
IV.

A~

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USDSSDNY
DOCUMENT
ELECTRONICALLY FILED

CONCLUSION

For the foregoing reasons, IT IS HEREBY
ORDERED THAT Defendant's motion for
summary judgment is GRANTED and
Plaintiffs cross-motion for summary judgment
is DENIED. The Clerk of Court is respectfully
directed to terminate the motions pending at
docket entries 30 and 47.

DOC#:~~~~~~~

DATE FILED: 'f- IS- 1'1

To the extent that Plaintiff wishes to amend
his Complaint, he must file a motion to amend
no later than October 24, 2014. The motion
should include a proposed amended complaint,
which shall state with specificity Plaintiff's
contemplated claims and shall also clearly list
all defendants whom Plaintiff seeks to add.

6

\
._

A copy of this Opinion and Order was mailed
to:
Hector Laporte
03-A-5560
Attica Correctional Facility
Box 149
Attica, NY 14011-0149

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