Laporte v. Keyser et al

Filing 88

OPINION & ORDER: re: 77 MOTION to Dismiss, filed by M. Goffe, William Keyser, W. Ramos, E. Mydosh. For the foregoing reasons, Defendants' Partial Motion To Dismiss is granted as to the medical indifference claims against all Defendants and all the claims against Keyser. Because Plaintiff has already been given an opportunity to amend his Complaint, (see Dkt. No. 60), the medical indifference claims and all the claims against Keyser are dismissed with prejudice. See D enny v. Barber, 576 F.2d 465,471 (2d Cir. 1978) (holding that the plaintiff was not entitled to "a third go-around"); Melvin v. Cty. of Westchester, No. 14-CV-2995, 2016 WL 1254394, at *24 n.19 (S.D.N.Y. Mar. 29, 2016) (granting motion to dismiss with prejudice where "[the] [p]laintiff has already had two bites at the apple, and they have proven fruitless" (alterations and internal quotation marks omitted)). The Clerk of the Court is directed to mail a copy of this Order to Plaintiff and terminate the pending motion. (Dkt. No. 77.) The Court will hold a status conference on February 14, 2018 at 10:00 a.m. The Parties should be prepared to discuss a case management plan at the conference, and as further set forth i n this order. (Status Conference set for 2/14/2018 at 10:00 AM before Judge Kenneth M. Karas.) Motions terminated: 77 MOTION to Dismiss, filed by M. Goffe, William Keyser, W. Ramos, E. Mydosh. (Signed by Judge Kenneth M. Karas on 2/8/2018) (ap)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
HECTOR LAPORTE,
Plaintiff,
-v-

No. 14-CV-8293 (KMK)

WILLIAM KEYSER;
CORRECTIONAL OFFICER M.
GOFFE; SGT. W. RAMOS; and LT. E.
MYDOSH,

OPINION & ORDER

Defendants.
Appearances:
Hector Laporte
Dannemora, NY
Pro Se Plaintiff
Jennifer Gashi, Esq.
Julinda A. Dawkins, Esq.
New York State Office of the Attorney General
White Plains, NY
Counsel for Defendants
KENNETH M. KARAS, United States District Judge:
Plaintiff Hector Laporte (“Plaintiff”), currently incarcerated at Clinton Correctional
Facility, brings this pro se Action, pursuant to 42 U.S.C. § 1983, against Superintendent William
Keyser (“Keyser”), Correctional Officer M. Goffe (“Goffe”), Sgt. W. Ramos (“Ramos”), Lt. E.
Mydosh (“Mydosh,”), John Doe #5, and John Doe #6 (collectively, “Defendants”), alleging that,
during Plaintiff’s incarceration at Sing Sing Correctional Facility (“Sing Sing”), Defendants used
excessive force against him on two occasions and denied him medical care. (See Am. Compl.
(Dkt. No. 64).) Before the Court is Defendants’ Partial Motion To Dismiss the Amended
Complaint Pursuant to Federal Rule of Civil Procedure 12(b)(6) (the “Motion”). (Dkt. No. 77.)
Defendants claim that Plaintiff fails to state an Eighth Amendment claim of medical indifference,

or, in the alternative, that Defendants are entitled to qualified immunity as to this claim.
Defendants also argue that Plaintiff fails to allege personal involvement as to Keyser, or, in the
alternative, that Keyser is entitled to qualified immunity. (See Defs.’ Mem. of Law in Supp. of
Mot. To. Dismiss (“Defs.’ Mem.”) 4–8 (Dkt. No. 78.).) For the reasons that follow, the Motion
is granted.
I. Background
A. Factual Background
The following facts are taken from the Amended Complaint and are accepted as true for
the purposes of this Motion. At the time of the events described herein, Plaintiff was an inmate
at Sing Sing Correctional Facility. (See Am. Compl. 5).1 Plaintiff alleges two instances of
excessive force being used against him and a claim of medical indifference.
1. Use of Force Incidents
On February 2, 2013, Plaintiff was in his cell having a conversation with one of the social
workers when “suddenly” Keyser and two John Doe officers arrived at Plaintiff’s cell “with
pack=up [sic] bags” in hand. (See id. at 8.)2 “Keyser explained to [P]laintiff that he was being
removed from the I.C.P. [intermediate care] program and put back into general population.” (See
id.) “Mr. Douglas Gar, [the] social worker[,] inquired as to who ordered for [P]laintiff’s removal
from the program, when suddenly he was rebuffed by Mr. Keyser . . . who started yelling at Mr.

1

The Amended Complaint consists of some information on a form as well as handwritten
pages inserted into the form, with different numbering schemes on each sheet of paper.
Consistent with Defendants’ Memorandum of Law, (see Defs.’ Mem. 3 n.2), the Court refers to
pages in sequential order in accordance with the ECF-generated page numbers that appear on the
top of each page.
2

Numerous words and phrases in Plaintiff’s Amended Complaint are underlined or
placed in parenthesis or quotation marks. Here and elsewhere, when quoting such phrases, this
Opinion removes the emphasis for ease of readability.
2

Gar by stating ‘shut the fuck up’ and stop interfering with security matters.” (See id. at 8–9.)
“As a result, Mr. Gar was dejected from a very serious matter, because Plaintiff was a patient in
need of assistance.” (See id. at 9.) Plaintiff filed a grievance on March 1, 2013 concerning his
removal from the I.C.P. program. (See id.)
“On March 6, 2013, while [P]laintiff was returning from afternoon lunch[,] [P]laintiff
observed Mr. Keyser and C.O. Mr. Goffe having a conversation.” (See id. at 9–10.) “[W]hen
Mr. Keyser saw [P]laintiff he started to stare and motion toward [Plaintiff’s] direction, ‘showing’
C.O. Mr. Goffe.” (See id. at 10.) At approximately 1 p.m., “[P]laintiff was given a pass for the
law library[,] and while on his way, C.O. Mr. Goffe ordered [P]laintiff to place his hands on the
wall for a pat[-]frisk.” (See id.) “[W]hile on the wall, C.O. Mr. Goffe was going through the
paperwork when he came across a copy of the [§ ]1983 civil claim against Mr. Keyser.” (See
id.) As a result, “Goffe became very hostile [and] abusive and threw [P]lantiff[’s] legal paper’s
[sic] on the floor and stated go back to your cell.” (See id. at 10–11.) Then, “[P]laintiff bent
down to retrieve his paper’s [sic], when suddenly C.O. Mr. Goffe started to physically assault
[P]laintiff by punching him in the face and body repeatedly, as [P]laintiff ‘cringed’ in agony
from each ‘blow.’” (See id. at 11.) “Plaintiff was beaten until he collapsed and curled-up in a
fetal position.” (See id.) “However, the beating continued i.e. [P]laintiff was kicked multiple
times and also hit with the [b]aton until he was unconscious.” (See id.) Plaintiff regained
consciousness when Ramos slapped him in the face and demanded that Plaintiff stand up. (See
id. at 12.)
Plaintiff was taken to the facility hospital by Goffe and Ramos for “emergency purposes
because [P]laintiff was in very bad condition.” (See id.) Upon arrival, they were met by Mydosh
and another John Doe, who was there to take pictures of Plaintiff’s injuries. (See id.) While

3

Plaintiff was waiting to be examined, “Mydosh ordered the medical staff out of the room” and
told Ramos and Goffe “fix him up[,] meaning [P]laintiff[,] and then they started beating
[P]laintiff up again with fist[s], batons, [and] feet, until [P]laintiff begged, pleaded for them to
stop hit[t]ing him.” (See id.) The x-ray technician told Defendants to stop, and “Defendants
then backed off, and allow[ed] for the x-ray technician to proform [sic] his duty.” (See id. at 14.)
Plaintiff alleges he suffered “bruises, facial swelling, lower back injuries, sciatica, etc[.]
unconsciousness for a long period of time.” (See id. at 21.) Plaintiff was in the Sing Sing
infirmary for 17 days, under medical observation, because of his injuries. (See id. at 20– 21.)
2. Medical Indifference
Following the use of force incidents, Plaintiff was taken to Westchester County Medical
Center (“W.C.M.C.”) by John Doe #5 and John Doe #6 for further diagnosis. (See id. at 14–15.)
Plaintiff alleges the John Doe Defendants “violated [P]laintiff[’s] constitutional Eight[h]
Amendment Rights, under Deliberate Indifference” and brings a claim for medical indifference.
(See id. at 15, 17, 20.) Plaintiff brings claims against John Doe #5 in his official capacity,
specifically that he “violated [the] officer’s manual, case law, [and] medical protocol” when he
interfered with Plaintiff’s medical treatment and care “while he was still being evaluated and
under intravenous lines.” (See id. at 15.) Plaintiff alleges that “John Doe #5 put [P]laintiff[’s]
life in serious danger, when he ignored medical staff at W.C.M.C.” and “started to remove the
intravenous line from [P]laintiff[’s] arm” and “ignor[ed] staff protestation [sic] that their
evaluation had not been completed.” (See id. at 15–16.) Plaintiff brings similar claims against
John Doe #6 in his official capacity, alleging he also violated the officer’s manual, case law, and
medical protocol “when he participate[d] and allow[ed] him-self [sic] to be cohesive [sic] by an
employee to commit an illegal[ ]act upon [P]laintiff[’s] medical treatment [and] care while still

4

being evaluated by medical staff.” (See id. at 17.) John Doe #6, acting together with John Doe
#5, “removed the intravenous lines[] from [P]laintiff[’s] arm,” putting “[P]laintiff[’s] life in
serious danger” by “not listening to medical staff at W.C.M.C.” (See id. at 17–18.) This
“overr[o]de the wishes of medical staff at W.C.M.C. who were still attempting to evaluate
[P]laintiff[’s] condition” and “disrupt[ed] their ability to provide the medical assistance . . . for
which he had been transported there to receive[].” (See id. at 19.) Plaintiff was transported back
to Sing Sing . . . without completion of the medical evaluation. (See id.) Plaintiff alleges their
behavior “was not just reckless . . . but clearly a constitutional violation towards [P]laintiff[’s]
rights.” (See id. at 18.) Plaintiff concludes that actions of the John Doe Defendants, “in
intervening with Plaintiff treatment [and] care, is sufficient to support [a] medical indifference
claim.” (See id. at 20.)
Plaintiff seeks compensatory damages of $1,000,000 from each Defendant for his
injuries. (See id. at 6.)
B. Procedural Background
Plaintiff filed his initial Complaint in this Action on October 14, 2014. (See Compl.
(Dkt. No. 1).) Plaintiff later filed with the Court a document entitled “Amended Complaint &
Petition for Assignment of Counsel,” dated April 16, 2015, and filed with the Court on April 28,
2015. (Dkt. Nos. 15, 16.)3 On October 23, 2015, Defendants filed a Motion To Dismiss along
with an accompanying Memorandum of Law. (Dkt. Nos. 30, 31.) Plaintiff failed to file an
opposition to Defendants’ motion and per the Defendants’ request, (Dkt. No. 35), the Court

3

On May 8, 2015, the Court denied Plaintiff’s request for appointment of counsel
without prejudice. (See Dkt. No. 17.)

5

deemed the motion fully submitted, (Dkt. No. 36).4 In an Order dated June 22, 2016, the Court
found that although labeled in part as an “Amended Complaint,” Plaintiff’s amended submission
appeared to only address Plaintiff’s “Petition for Assignment of Counsel” and did not relate to
the allegations in his initial Complaint. (Dkt. No. 41.) The Court found that Plaintiff’s initial
Complaint, filed on October 14, 2014, (Dkt. No. 1), was the operative Complaint, and thus
denied without prejudice Defendants’ pending motion to dismiss challenging the mislabeled
“Amended Complaint.” (Dkt. No. 41.)
Per the Court’s Order, on July 6, 2016, Defendants filed a proposed briefing schedule for
the First Motion To Dismiss (“First Motion”), (Dkt. No. 42), which the Court adopted on July
12, 2016, (Dkt. No. 44). On August 16, 2016, Defendants filed the First Motion and
accompanying Memorandum of Law. (Dkt. Nos. 46, 47.) Plaintiff failed to file an opposition in
accordance with the adopted briefing schedule and at the request of Defendants, (Dkt. No. 50),
the Court deemed the First Motion to be fully submitted, (Dkt. No. 51). However, following
multiple requests, (Dkt. Nos. 52, 53, 55), the Court granted Plaintiff an extension of time to file
an opposition to the First Motion, (Dkt. No. 56).5 On November 30, 2016, Plaintiff filed his

4

On November 10, 2015, Plaintiff filed a document titled “Motion in Support of Motion
To Amend and in Opposition of Motion To Dismiss, Motion To Appoint Counsel.” (Dkt. No.
39.) However, the document was erroneously filed in the Second Circuit and therefore, was not
docketed in this case until March 17, 2016. (Dkt. (entry for Nov. 10, 2015).)
5

Plaintiff’s first two requests for extensions, dated October 30 and November 1, 2016,
asserted that Plaintiff was unable to access the law library due to the fact that Clinton
Correctional Facility was on lockdown status. (Dkt. Nos. 52, 53.) Plaintiff’s third request for an
extension, dated November 7, 2016, was written by a law library clerk at Clinton and stated that
the clerk’s “assistance was sought in drafting this letter on behalf of [P]laintiff.” (Dkt. No. 55.)
The letter stated that Plaintiff “had another clerk assisting him in drafting his . . . opposition,” but
“d[ue] to the tumultuous environment at Clinton Correctional Facility between warring gang
factions[,] a series of lockdowns were ordered and [access to] the law library was suspended.”
(Id.) The letter further asserted that “during th[e] lockdown[,] the clerk assigned to assist
[P]laintiff was transferred, so . . . he could not complete drafting [P]laintiff’s . . . opposition.”
6

Opposition, (Dkt. No. 57), and on December 12, 2016, Defendants filed their reply, (Dkt. No.
58). On February 16, 2017, the Court denied the First Motion to Dismiss without prejudice, and
ordered Plaintiff to file an Amended Complaint within 30 days supplying sufficient information
to identify the John Doe Defendants. (Dkt. No. 60). On March 9, 2017, the Court granted
Plaintiff an extension of time to file the Amended Complaint. (Dkt. No. 62.)
On March 17, 2017, Plaintiff filed an Amended Complaint. (Am. Compl.) The Court
granted Defendants’ request for an extension of time to move or answer the Amended
Complaint. (Dkt. No. 66.) On April 26, 2017, Defendants inquired whether the Court will be
issuing an order instructing the New York State Office of the Attorney General to ascertain the
name of the John Doe Defendants named in the Amended Complaint pursuant to Valentin v.
Dinkins, 121 F.3d 72 (2d Cir. 1997). (Dkt. No. 67) The Court informed Defendants that
Plaintiff did not provide sufficient information to permit the Attorney General’s Office to
identify the John Doe Defendants. (Dkt. No. 68.) Thus, the Attorney General was not under an
obligation to identify the John Doe Defendants pursuant to Valentin, 121 F.3d 72. (Id.)
On May 17, 2017, Defendants requested a premotion conference to submit a second,
partial Motion To Dismiss. (Dkt. No. 75.) On May 31, 2017, the Court set a briefing schedule
for the Motion. (Dkt. No. 76.) Accordingly, Defendants filed the instant Motion on June 28,
2017 and an accompanying memorandum of law. (Dkt. Nos. 77, 78.) Plaintiff failed to oppose
Defendants’ Motion, and per the Defendants’ request, (Dkt. No. 80), the Court deems the Motion
fully submitted.6

(Id.)
6

On February 5, 2018, Plaintiff sought an extension of time to respond to the Motion,
(see Dkt. Nos. 85, 86), which the Court denied as untimely, (see Dkt. No. 87).
7

II. Discussion
A. Standard of Review
The Supreme Court has held that although a complaint “does not need detailed factual
allegations” to survive a motion to dismiss, “a plaintiff’s obligation to provide the grounds of his
[or her] entitlement to relief requires more than labels and conclusions, and a formulaic recitation
of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007) (alteration and internal quotation marks omitted). Indeed, Rule 8 of the Federal Rules of
Civil Procedure “demands more than an unadorned, the-defendant-unlawfully-harmed-me
accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Nor does a complaint suffice if it
tenders naked assertions devoid of further factual enhancement.” Id. (alteration and internal
quotation marks omitted). Rather, a complaint’s “[f]actual allegations must be enough to raise a
right to relief above the speculative level.” Twombly, 550 U.S. at 555. Although “once a claim
has been stated adequately, it may be supported by showing any set of facts consistent with the
allegations in the complaint,” id. at 563, and a plaintiff must allege “only enough facts to state a
claim to relief that is plausible on its face,” id. at 570, if a plaintiff has not “nudged [his] claims
across the line from conceivable to plausible, the[] complaint must be dismissed,” id.; see also
Iqbal, 556 U.S. at 679 (“Determining whether a complaint states a plausible claim for relief
will . . . be a context-specific task that requires the reviewing court to draw on its judicial
experience and common sense. But where 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.’” (second alteration in original) (citation
omitted) (quoting Fed. R. Civ. P. 8(a)(2))); id. at 678–79 (“Rule 8 marks a notable and generous
departure from the hypertechnical, code-pleading regime of a prior era, but it does not unlock the

8

doors of discovery for a plaintiff armed with nothing more than conclusions.”).
“[W]hen ruling on a defendant’s motion to dismiss, a judge must accept as true all of the
factual allegations contained in the complaint,” Erickson v. Pardus, 551 U.S. 89, 94 (2007), and
“draw[] all reasonable inferences in favor of the plaintiff,” Daniel v. T & M Prot. Res., Inc., 992
F. Supp. 2d 302, 304 n.1 (S.D.N.Y. 2014) (citing Koch v. Christie’s Int’l PLC, 699 F.3d 141, 145
(2d Cir. 2012)). Additionally, “[i]n adjudicating a Rule 12(b)(6) motion, a district court must
confine its consideration to facts stated on the face of the complaint, in documents appended to
the complaint or incorporated in the complaint by reference, and to matters of which judicial
notice may be taken.” Leonard F. v. Isr. Disc. Bank of N.Y., 199 F.3d 99, 107 (2d Cir. 1999)
(internal quotation marks omitted); see also Wang v. Palmisano, 157 F. Supp. 3d 306, 317
(S.D.N.Y. 2016) (same).
Where, as here, a plaintiff proceeds pro se, the Court must “construe[] [his] [complaint]
liberally and interpret[] [it] to raise the strongest arguments that [it] suggest[s].” Sykes v. Bank of
Am., 723 F.3d 399, 403 (2d Cir. 2013) (internal quotation marks omitted). However, “the liberal
treatment afforded to pro se litigants does not exempt a pro se party from compliance with
relevant rules of procedure and substantive law.” Bell v. Jendell, 980 F. Supp. 2d 555, 559
(S.D.N.Y. 2013) (internal quotation marks omitted); see also Caidor v. Onondaga County, 517
F.3d 601, 605 (2d Cir. 2008) (“[P]ro se litigants generally are required to inform themselves
regarding procedural rules and to comply with them.” (italics and internal quotation marks
omitted)).
B. Analysis
Defendants move to dismiss the medical indifference claims against all the Defendants
and all the claims against Keyser. The Court will address each claim in turn.

9

1. Medical Indifference Claims
Defendants argue that Plaintiff fails to state a medical indifference claim under the Eighth
Amendment. (Defs.’ Mem. 4–5.) “The Eighth Amendment forbids deliberate indifference to
serious medical needs of prisoners.” Spavone v. N.Y. State Dep’t of Corr. Servs., 719 F.3d 127,
138 (2d Cir. 2013) (internal quotation marks omitted). “The standard of deliberate indifference
includes both subjective and objective components.” Chance v. Armstrong, 143 F.3d 698, 702
(2d Cir. 1998). To establish such a claim, Plaintiff must plausibly allege both (1) “that he
suffered a sufficiently serious constitutional deprivation” and (2) that the Defendants “acted with
deliberate indifference.” Feliciano v. Anderson, No. 15-CV-4106, 2017 WL 1189747, at *8
(S.D.N.Y. Mar. 30, 2017). The Amended Complaint does not satisfy these requirements.
The Amended Complaint does not allege that Plaintiff received inadequate medical care
as a result of any of the named Defendants’ purported actions, and therefore does not satisfy the
objective prong of the Eighth Amendment analysis. See Salahuddin v. Goord, 467 F.3d 263, 279
(2d Cir. 2006) (“The first inquiry is whether the prisoner was actually deprived of adequate
medical care.”). The allegations in the Complaint regarding interference with the intravenous
line describe actions by the John Doe Defendants, not any of the named Defendants. Nor does
Plaintiff allege that the named Defendants engaged in any conduct regarding his medical care
that caused him physical harm, or was likely to do so. See id. at 280 (asking “what harm, if any,
the inadequacy [in treatment] has caused or will likely cause the prisoner”).
Further, Plaintiff’s Amended Complaint contains no factual allegations that any of the
named Defendants “knew of and disregarded . . . [P]laintiff’s serious medical needs.”7 Chance,

7

Plaintiff alleges that Keyser’s interruption of Plaintiff’s February 2, 2013 conversation
with the social worker caused the social worker to be “dejected from a very serious matter,
because Plaintiff was a patient in need of assistance.” (See Am. Compl. at 8–9.) This claim fails
10

143 F.3d at 703. To satisfy this standard “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.” Phelps v. Kapnolas, 308 F.3d 180, 185–86 (2d Cir. 2002) (internal quotation
marks omitted). Thus, Plaintiff has failed to allege that any Defendant “act[ed] with a
sufficiently culpable state of mind.” Salahuddin, 467 F.3d at 280. Thus, the Amended
Complaint fails to state a claim for deliberate indifference to medical needs against any of the
named Defendants.
Plaintiff does make some specific factual allegations regarding the conduct of John Doe
Defendants #5 and #6. (See Am. Compl. 15–19.) However, Plaintiff does not provide any
identifying information about the John Doe Defendants that he seeks to sue. While Plaintiff is
entitled to the Court’s assistance in determining the identity of any John Doe Defendants, see
Valentin, 121 F.3d at 76, it is still Plaintiff’s responsibility to provide sufficient identifying
information to permit the New York State Department of Correctional Services (“DOCCS”) to
identify the John Doe Defendants, see id. at 75 (explaining that the plaintiff provided the
defendant with the officer’s surname, the unit to which he was assigned, the date and location of
the incident in question, and the docket number of the case). Plaintiff was instructed to amend
the Complaint to supply such information, but Plaintiff has failed to do so. (Dkt. Nos. 60, 68.)

to meet the objective element of the test for medical indifference, because it is unclear if Plaintiff
was actually deprived of adequate medical care—indeed, Plaintiff does explain what medical
care the social worker was even providing the Plaintiff—and there is no allegation in the
Amended Complaint that Plaintiff was harmed as a result of Keyser’s interruption. See
Salahuddin, 467 F.3d at 279 (explaining that the first prong of the test for medical indifference is
“whether the prisoner was actually deprived of adequate medical care.”). Additionally, the
subjective element of the test is not satisfied because there is no allegation in the Amended
Complaint that Keyser “knew of and disregarded . . . [P]lainitff’s serious medical needs.”
Chance, 143 F.3d at 703.

11

Plaintiff alleges the John Doe Defendants pulled the intravenous line out of his arm. (See
Am. Compl. 19.) However, Plaintiff has failed to demonstrate how that action “pose[d] an
unreasonable risk of serious damage to [Plaintiff’s] health.” Walker v. Schult, 717 F.3d 119, 125
(2d Cir. 2013). Therefore, the John Doe Defendants are dismissed as parties from this Action.8
2. Claims Against Defendant Keyser
Keyser argues that the Amended Complaint should be dismissed against him because he
was not personally involved in the alleged constitutional violations. (Defs.’ Mem. 5–6.) “It is
well settled that, in order to establish a defendant’s individual liability in a suit brought under
§ 1983, a plaintiff must show . . . the defendant’s personal involvement in the alleged
constitutional deprivation.” Grullon v. City of New Haven, 720 F.3d 133, 138 (2d Cir. 2013). To
establish personal involvement, a plaintiff must show that:
(1) the defendant participated directly in the alleged constitutional violation, (2) the
defendant, after being informed of the violation through a report or appeal, failed
to remedy the wrong, (3) the defendant created a policy or custom under which
unconstitutional practices occurred, or allowed the continuance of such a policy or
custom, (4) the defendant was grossly negligent in supervising subordinates who
committed the wrongful acts, or (5) the defendant exhibited deliberate indifference
to the rights of inmates by failing to act on information indicating that
unconstitutional acts were occurring.
Id. at 139 (italics and internal quotation marks omitted). In other words, “because vicarious
liability is inapplicable to . . . § 1983 suits, a plaintiff must plead that each Government-official
defendant, through the official’s own individual actions, has violated the Constitution.” Iqbal,

8

The Court notes that because Plaintiff allowed the statute of limitations to run on his
claims against the John Doe Defendants without identifying them by name, he will be unable to
substitute a named party for a John Doe Defendant unless he (1) “exercise[d] due diligence, prior
to the running of the statute of limitations, to identify the defendant[s] by name,” and (2)
“describe[s] the John Doe party in such form as will fairly apprise the party that [he or she] is the
intended defendant.” Hogan v. Fisher, 738 F.3d 509, 519 (2d Cir. 2013) (internal quotation
marks omitted).

12

556 U.S. at 676. Therefore, Plaintiff must plausibly allege conduct by Keyser that falls into one
of the five categories identified above. See Lebron v. Mrzyglod, No. 14-CV-10290, 2017 WL
365493, at *4 (S.D.N.Y. Jan. 24, 2017) (holding that the five categories “still control[] with
respect to claims that do not require a showing of discriminatory intent” post-Iqbal).
Plaintiff has failed to plausibly allege Keyser’s personal involvement in the alleged
constitutional deprivations. The gravamen of the Amended Complaint is that Defendants Goffe,
Ramos, and Mydosh assaulted him on two occasions on March 6, 2013. (See Am. Compl. 10–
13.) The Amended Complaint contains no allegations whatsoever that Keyser was involved in,
aware of, or somehow permitted the use of force in the incidents that allegedly took place on
March 6, 2013. The Amended Complaint does not even allege that Keyser was present during
these two incidents. Keyser’s name appears in the Amended Complaint in the context of only
two interactions with Plaintiff. The first is in an alleged verbal exchange between Keyser and
Gar, the social worker, on February 2, 2013, where no constitutional violation against Plaintiff is
alleged to have occurred. (See id. at 8–9.) The second was when Plaintiff allegedly observed
Keyser and Goffe having a conversation the morning before the alleged use of force, when
Plaintiff saw Keyser “stare and motion toward [Plaintiff’s] direction, ‘showing’ C.O. Mr. Goffe.”
(See id. at 9–10.) This second interaction does not plausibly allege that Keyser ordered
Defendants Goffe, Ramos, and Mydosh to use excessive force against Plaintiff. See Sash v.
United States, 674 F. Supp. 2d. 531, 544 (S.D.N.Y. 2009) (finding no personal involvement
when the plaintiff did not “contend that [the defendant] ordered [the other defendants] to use
excessive physical force”). And, to construe from this allegation that Keyser had any personal
involvement in the use of force would be pure speculation. See Twombly, 550 U.S. at 555
(holding that “[f]actual allegations must be enough to raise a right to relief above the speculative

13

level.”).
Moreover, Keyser cannot be held personally liable for constitutional violations by other
Defendants merely “because he was in a high position of authority in the prison system.” Wright
v. Smith, 21 F.3d 496, 501 (2d Cir. 1994); Victory v. Pataki, 814 F.3d 47, 67 (2d Cir. 2016), as
amended (Feb. 24, 2016) (same). Personal involvement requires “a showing of more than the
linkage in the prison chain of command.” Ayers v. Coughlin, 780 F.2d 205, 210 (2d Cir. 1985).
Additionally, the Amended Complaint lacks any allegation that Keyser failed to intervene in
Goffe, Ramos, and Mydosh’s use of force by failing to remedy a known wrong or “exhibit[ing]
deliberate indifference” to Plaintiff’s rights “by failing to act on information indicating that
unconstitutional acts were occurring.” Grullon, 720 F.3d at 139 (external quotation marks
omitted). Nor does Plaintiff allege that Keyser was aware that Goffe, Ramos, and Mydosh had a
history of using excessive force, such that the Court could reasonably infer that Keyser knew
excessive force may be used against Plaintiff. See id. at 139 (listing as categories of personal
involvement when a defendant allows “a policy or custom” of unconstitutional practices to
continue or when he “was grossly negligent in supervising subordinates who committed the
wrongful acts”); see also Sash, 674 F. Supp. 2d. at 545 (finding no personal involvement where
defendant was not “aware [other defendants] were going to use excessive force” and had no
“realistic opportunity to intervene to prevent the harm from occurring” (internal quotation marks
omitted)). The Court therefore dismisses Plaintiff’s claims against Keyser.9

9

Because the Court dismisses the Amended Complaint for failure to allege Keyser’s
personal involvement, the Court need not reach Keyser’s alternative arguments regarding
qualified immunity. (Defs.’ Mem. 6–8.)
14

III. Conclusion
For the foregoing reasons, Defendants' Partial Motion To Dismiss is granted as to the
medical indifference claims against all Defendants and all the claims against Keyser. Because
Plaintiff has already been given an opportunity to amend his Complaint, (see Dkt. No. 60), the
medical indifference claims and all the claims against Keyser are dismissed with prejudice. See
Denny v. Barber, 576 F.2d 465,471 (2d Cir. 1978) (holding that the plaintiff was not entitled to
"a third go-around"); Melvin v. Cty. of Westchester, No. 14-CV-2995, 2016 WL 1254394, at *24
n.19 (S.D.N.Y. Mar. 29, 2016) (granting motion to dismiss with prejudice where "[the] [p]laintiff
has already had two bites at the apple, and they have proven fruitless" (alterations and internal
quotation marks omitted)).
The Clerk of the Court is directed to mail a copy of this Order to Plaintiff and terminate
the pending motion. (Dkt. No. 77.)
The Court will hold a status conference on February 14, 2018 at 10:00 a.m. The Parties
should be prepared to discuss a case management plan at the conference.

SO ORDERED.

Dated:

Februaryg , 2018
White Plains, New York

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