Blando v. Capra et al

Filing 74

OPINION AND ORDER: For the foregoing reasons, Defendants' Motion To Dismiss is granted in part and denied in part. Defendants' Motion is denied with respect to Plaintiff's Eighth Amendment claims against Defendant Lerouge. Plaintiffs claims against Capra, Aitchison, Johnson, Cousins, and Quick are dismissed. Plaintiff's claims against Lerouge under the First and Fourteenth Amendments, as well as under the ADA, are also dismissed. Because this is the second adjudication of Pl aintiff's claims on the merits and he has failed to state a claim, the dismissal is with prejudice. Even pro se plaintiffs are not entitled to file an amended complaint if the complaint "contains substantive problems such that an amended pl eading would be futile." Lastra v. Barnes & Noble Bookstore, No. 11-CV-2173, 2012 WL 12876, at *9 (S.D.N.Y. Jan. 3, 2012), aff'd, 523 F. App'x 32 (2d Cir. 2013). Because the Court finds that further amendment would be futile, Plaintiff 's claims are dismissed with prejudice. The Clerk of the Court is respectfully requested to terminate the pending motion, (Dkt. No. 67), to terminate Defendants Capra, Aitchison, Johnson, Cousins, and Quick from the docket, and to mail a copy of this Opinion to Plaintiff. SO ORDERED. (Signed by Judge Kenneth M. Karas on 3/14/2019) (jca) Transmission to Docket Assistant Clerk for processing. Transmission to Orders and Judgments Clerk for processing.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

MOISE BLANDON,
Plaintiff,
v.
No. 17-CV-65 (KMK)
MICHAEL AITCHISON, ICP Supervisor;
MICHAEL CAPRA, Superintendent; S.
COUSINS, Lieutenant; SYLVESTER
JOHNSON, Sergeant; RONALD LEROUGE,
Correction Officer; QUADRENA T. QUICK,
IGP Supervisor,

OPINION AND ORDER

Defendants.

Appearances:
Moise Blandon
Ossining, NY
Pro Se Plaintiff
Bruce J. Turkle, Esq.
New York State Office of the Attorney General
New York, NY
Counsel for Defendants
KENNETH M. KARAS, District Judge:
Pro se Plaintiff Moise Blandon (“Plaintiff”), currently incarcerated at Sing Sing
Correctional Facility, filed the instant Amended Complaint (“Amended Complaint”), pursuant to
42 U.S.C. § 1983, against Superintendent Michael Capra (“Capra”), Intermediate Care Program
(“ICP”) Supervisor Michael Aitchison (“Aitchison”), Lieutenant S. Cousins (“Cousins”),
Correction Officer Lerouge R. (“Lerouge”), Sergeant Sylvester Johnson (“Johnson”), and Inmate
Grievance Program (“IGP”) Supervisor Quadrena T. Quick (“Quick”) (collectively,
“Defendants”) (Am. Compl. (Dkt. No. 52).) Plaintiff alleges that Defendants violated his rights

under the First, Eighth, and Fourteenth Amendments, as well as under the Americans with
Disabilities Act (“ADA”), 42 U.S.C. § 12112 et seq., when they allegedly failed to protect him
from an HIV and Hepatitis C-infected inmate, “Ebanks,” who entered Plaintiff’s cell and bit his
face, and when they subsequently prevented him from timely filing an inmate grievance relating
to the incident in order to exhaust his administrative remedies. (See generally Am. Compl.)
Before the Court is Defendants’ Motion To Dismiss the Amended Complaint Pursuant to
Federal Rule of Civil Procedure 12(b)(6). (See Not. of Mot. (Dkt. No. 67); Mem. of Law in
Supp. of Defs.’ Mot. to Dismiss (“Defs.’ Mem.”) (Dkt. No. 68).) Defendants argue that
Plaintiff’s Amended Complaint fails to allege the personal involvement of Capra, Aitchison, and
Cousins in any constitutional violation, and fails to state a claim as to all Defendants. (See
generally Defs.’ Mem.) For the following reasons, Defendants’ Motion is granted in part and
denied in part.
I. Background
A. Factual Background
The following facts are drawn from Plaintiff’s Amended Complaint and are taken as true
for the purpose of resolving the instant Motion. The Court assumes familiarity with the facts
underlying its November 20, 2017 Opinion and Order dismissing Plaintiff’s original Complaint.
(See Nov. 20, 2017 Op. & Order (“Opinion”) 3–5 (Dkt. No. 30).)
Plaintiff is a prisoner incarcerated at Sing Sing Correctional Facility, and, due to his
intellectual disability, was, at the time of the alleged events, in the custody of the Intermediate
Care Program (“ICP”), which worked with the Office of Mental Health (“OMH”). (Am. Compl.
¶¶ 7, 19; see also Opinion 3.) On June 14, 2016, while Plaintiff was confined to his cell,
“Ebanks ran into [Plaintiff’s] cell” and bit his face, “causing 2 by 2 inches deep teeth-punctures,

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bleeding, and permanent disfigurement.” (Am. Compl. ¶¶ 15–16.) The attack occurred shortly
after the 5:00 p.m. “Medication Run”; although inmates typically “have no free movement”
during the Medication Run, Ebanks was allowed to return to his cell “unescorted.” (Id. ¶ 23.)
Lerouge, who was on duty at the time, allegedly “did not secure” the inmates that day, and a
witness later informed Cousins that he overheard Lerouge tell Ebanks, “I know you have issues
on the Unit. I’m leaving the cells open. Go handle your business.” (Id. ¶¶ 22, 23.) Defendants
“had prior knowledge of Ebanks being a highly volatile inmate infected with HIV” based on his
prior conduct, including attacks on staff and other inmates, and because he allegedly “screams
out of his cell repeatedly every day that he has HIV to threaten staff and inmates.” (Id. ¶ 21.)
Following the incident, Lerouge wrote an Inmate Misbehavior Report (“IMR”) against
Plaintiff “for fighting and violent conduct” in order “to conceal his liability for the assault and
his lack of supervision and training.” (Id. ¶ 25.) Johnson was the area supervisor at the time,
and allegedly failed to give orders to Lerouge to secure the ICP inmates in their cells or to
prevent the attack, and later signed the IMR written by Lerouge. (Id. ¶¶ 24, 25.) Cousins
ultimately reviewed the IMR and cleared Plaintiff of misconduct, but then allegedly “concealed,
modified, spoiled, or destroyed the record of [a] confidential witness[] interview” in relation to
the investigation. (Id. ¶ 26.)
On June 20, 2016, Plaintiff filed a grievance with Quick concerning the attack “for her to
process and file.” (Id. ¶ 27.) However, Quick “held” the grievance “until mid[-]July 2016” and
then returned it to Plaintiff, “telling him it was untimely.” (Id. ¶ 28.) Plaintiff remained unaware
of the status of his grievance “until Karen Bellamy, the CORC Supervisor, sent him a letter
responding to his inquiry about it.” (Id.)

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B. Procedural Background
Plaintiff filed his original Complaint on January 3, 2017, asserting claims against Capra,
Lerouge, and Johnson, as well as three John Doe Defendants. (Compl. (Dkt. No. 2.)) The Court
granted Plaintiff’s request to proceed in forma pauperis on January 26, 2017. (Dkt. No. 6.) On
November 20, 2017, the Court granted Defendants’ Motion To Dismiss the original Complaint
without prejudice. (See generally Opinion.) The Court dismissed Plaintiff’s claims against
Capra for lack of personal involvement. (Id. at 13–16.) The Court dismissed Plaintiff’s Eighth
Amendment claim against Lerouge, finding that although the Complaint “plausibly allege[d] that
Defendants . . . were aware that attacks on other ICP inmates were foreseeable,” absent
enforcement of ICP policies requiring supervision and separation of ICP inmates, Plaintiff
alleged only negligence in failing to secure Ebanks in his cell, which “cannot constitute
deliberate indifference.” (Id. at 21–22.) The Court also dismissed Plaintiff’s Eighth Amendment
claim against Johnson, explaining that Plaintiff “provide[d] only general allegations, without any
factual detail, of Johnson’s purported lack of supervision, and merely labels these actions illegal
or unconstitutional.” (Id. at 23.) Finally, the Court dismissed Plaintiff’s substantive due process
claim as duplicative of “Plaintiff’s Eighth Amendment claim for failure to protect and deliberate
indifference,” and dismissed any possible procedural due process claim on the basis that
“Plaintiff does not possess a protected liberty interest in having Defendants follow prison
policy.” (Id. at 24–26.)
On May 18, 2018, Plaintiff filed the operative Amended Complaint, adding Defendants
Cousins, Aitchison, and Quick, and asserting claims under the First, Eighth, and Fourteenth
Amendments, as well as under the ADA. (See Am. Compl.) On August 31, 2018, Defendants
filed the instant Motion to Dismiss the Amended Complaint. (Not. of Mot.; Defs.’ Mem.) On

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November 1, 2018, after Plaintiff failed to file an opposition, Defendants filed a letter asking the
Court to deem the Defendants’ Motion To Dismiss fully submitted without opposition, (Dkt. No.
70), which the Court granted the same day, (Dkt. No. 71). On November 16, 2018, Plaintiff filed
a letter asking the Court to decide the Motion To Dismiss without opposition, stating that “the
facts in the [A]mended [C]omplaint are sufficient,” (Dkt. No. 72), and the Court confirmed it
would treat the Motion as fully submitted, (Dkt. No. 73).
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
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 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) (quotation marks omitted). “Nor does a complaint suffice if it
tenders naked assertions devoid of further factual enhancement.” Id. (alteration and quotation
marks omitted). Instead, 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 or her] 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

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. . . 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.’” (citation omitted) (second alteration in original) (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 doors of discovery
for a plaintiff armed with nothing more than conclusions.”).
In considering Defendants’ Motion To Dismiss, the Court is required to “accept as true
all of the factual allegations contained in the [C]omplaint.” Erickson v. Pardus, 551 U.S. 89, 94
(2007) (per curiam); see also Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014) (same). And, the
Court must “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)). 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) (per curiam) (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) (quotation marks omitted).
Generally, “[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) (quotation
marks omitted). However, when the complaint is pro se, the Court may consider “materials

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outside the complaint to the extent that they are consistent with the allegations in the complaint,”
Alsaifullah v. Furco, No. 12-CV-2907, 2013 WL 3972514, at *4 n.3 (S.D.N.Y. Aug. 2, 2013)
(quotation marks omitted), including “documents that the plaintiff[] either possessed or knew
about and upon which [he or she] relied in bringing the suit,” Rothman v. Gregor, 220 F.3d 81,
88 (2d Cir. 2000). Finally, the “failure to oppose Defendants’ [M]otion [T]o [D]ismiss does not,
by itself, require the dismissal of [Plaintiff’s] claims.” Leach v. City of New York, No. 12-CV2141, 2013 WL 1683668, at *2 (S.D.N.Y. Apr. 17, 2013). Rather, “the sufficiency of a
complaint is a matter of law that the court is capable of determining based on its own reading of
the pleading and knowledge of the law.” McCall v. Pataki, 232 F.3d 321, 322–23 (2d Cir. 2000).
B. Analysis
1. Personal Involvement of Defendants Capra, Aitchison, and Cousins
Defendants Capra, Aitchison, and Cousins argue that the Amended Complaint should be
dismissed against them because Plaintiff does not sufficiently allege their personal involvement
in any of the alleged constitutional violations. (Defs.’ Mem. 5–8.) “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.

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Id. at 139 (alterations, italics, and quotation marks omitted). In other words, “a plaintiff must
plead that each Government-official defendant, through the official’s own individual actions, has
violated the Constitution.” Iqbal, 556 U.S. at 676. “The personal involvement and liability of
supervisory personnel is established when the supervisory official has ‘actual or constructive
notice of unconstitutional practices and demonstrates gross negligence or deliberate indifference
by failing to act.’” Rahman v. Fisher, 607 F. Supp. 2d 580, 585 (S.D.N.Y. 2009) (quoting
Meriwether v. Coughlin, 879 F.2d 1037, 1048 (2d Cir. 1989)).
With respect to Capra, the Court found that Plaintiff’s original Complaint “contain[ed] no
allegations that Capra was personally involved in the alleged violations of Plaintiff’s
constitutional rights,” (Opinion 15), as it merely alleged that Capra was “the policymaker
therefrom and failed to take any proactive action to remedy the wrong,” (id. (quoting Compl.
¶ 9)). Aitchison and Cousins were not Defendants in the original Complaint.
Plaintiff now alleges that “Capra and Aitchison jointly govern and operate ICP at Sing
Sing,” and that they “conducted a background information study of Ebanks[’s] medical and
mental health records to determine his ICP eligibility, and the remedial planning and treatment
for him.” (Am. Compl. ¶¶ 19–20.) Plaintiff also alleges that Capra and Aitchison “made tours
of ICP once a week” and “[w]eekly . . . stopped at Ebanks[’s] cell to discuss his highly volatile
behavior toward himself, staff, and other inmates” throughout Plaintiff’s 16 months in ICP, but
failed to give orders to “remove him from ICP or to move him to a more restrictive residential
mental health treatment unit.” (Id. ¶¶ 31–33.) Plaintiff also alleges that Capra and Johnson
“were acquiescent to and did not supervise and train Defendant Lerouge regarding ICP and its
residents.” (Id. ¶ 34.)

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Construing Plaintiff’s submission liberally, the Amended Complaint sufficiently pleads
the personal involvement of Capra and Aitchison in the alleged constitutional violation.
Defendants, citing Grullon, argue that “Plaintiff fails to allege that Capra and Aitchison . . . knew
that Ebanks had a propensity to assault, let alone bite, other inmates . . . or . . . failed to act on
information indicating that the alleged assault was occurring, or might occur.” (Defs.’ Mem. 6.)
However, Plaintiff clearly alleges that Capra and Aitchison personally “performed the screening
process of Ebanks” before placing him in ICP, that they spoke to Ebanks weekly about his
volatile conduct, and that Ebanks was involved in several specific incidents, including a fight
with another inmate that required Ebanks to be moved to another section of ICP, that plausibly
put Capra and Aitchison on notice that Ebanks posed a threat to other inmates. (Am. Compl.
¶¶ 20, 21, 31, and 32.) Plaintiff also identifies more restrictive residential mental health
treatment units to which Ebanks could have been assigned by Capra and Aitchison. (See Am.
Compl. ¶ 33.) See also 7 N.Y.C.R.R. 320.5 (describing the “intensive intermediate care
program”). If, as Plaintiff alleges, Ebanks was indeed a known risk to other inmates and Capra
and Aitchison failed to sufficiently remedy the issue, they may be liable for constitutional
violations resulting from their inaction. See Parris v. New York State Dep’t Corr. Servs., 947 F.
Supp. 2d 354, 364 (S.D.N.Y. 2013) (noting supervisors may be liable where “there had been a
history of previous episodes putting the defendants on notice of the problem” (citation and
quotation marks omitted)); Mock v. Axelrod, No. 86-CV-2768, 1988 WL 18891, at *3 (S.D.N.Y.
Feb. 23, 1988) (noting that “prison supervisors may be liable if they knew or should have known
of assaults being perpetrated upon prisoners” (quotation marks omitted)). Construing Plaintiff’s
Amended Complaint liberally to assert the strongest arguments it suggests, see Sykes, 723 F.3d at

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403, the Court finds that Plaintiff has plausibly alleged Capra’s and Aitchison’s personal
involvement in the purported constitutional violation.
However, with respect to Cousins, Plaintiff has failed to sufficiently allege personal
involvement in a constitutional violation. Plaintiff’s only allegations against Cousins relate to
his oversight of the investigation into Plaintiff’s alleged assault. Plaintiff alleges that Cousins
“found [Plaintiff] not guilty of the charges” in the IMR, but that “he concealed, modified,
spoiled, or destroyed the record of the confidential witness[] interview” conducted pursuant to an
investigation into the incident, in which a witness reported hearing Lerouge tell Ebanks that he
would leave the cell doors open to allow Ebanks to “handle [his] business.” (Am. Compl. ¶¶ 22,
26.) Plaintiff’s allegation that Cousins destroyed the witness interview materials, without
additional facts, does not demonstrate his involvement in any constitutional violation and is thus
insufficient to withstand a motion to dismiss. Even assuming Plaintiff’s allegation is true,
Plaintiff does not explain how Cousins’s concealment or destruction of witness interview
materials after he cleared Plaintiff of misbehavior violated Plaintiff’s constitutional rights.
Plaintiff asserts that “[t]he law requires preservation of the record of the confidential witness’
interview to meet the demands of due process,” and that Cousins’s conduct “prevents Blandon
from proving Defendant Lerouge’s liability partly.” (Id. ¶ 26 (emphasis omitted).) The Court is
not aware of any caselaw holding that concealment or destruction of a witness interview after
completion of an inmate disciplinary hearing at which the inmate was found not guilty, standing
alone, violates the Constitution. Plaintiff has identified no liberty or property interest that he was
denied as a result of the alleged concealment of the confidential witness interview materials.
Zimmerman v. Burge, No. 06-CV-176, 2008 WL 850677, at *2 (N.D.N.Y. Mar. 28, 2008)
(noting that a prisoner “cannot state a claim for procedural due process without first establishing

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that he has been denied a liberty or property interest”). On the contrary, Plaintiff’s disciplinary
hearing terminated in his favor.
To the extent Plaintiff alleges that the concealment of the witness interview prevents this
Court from considering it in connection with Plaintiff’s claims against Lerouge, thereby violating
his right of access to the Courts, Plaintiff still fails to sufficiently allege a constitutional
violation. “When asserting a claim for deprivation of the right to access the courts, a plaintiff
must allege facts sufficient to show that he suffered an actual injury.” McIntosh v. United States,
No. 14-CV-7889, 2016 WL 1274585, at *23 (S.D.N.Y. Mar. 31, 2016); see also Anderson v.
Leghorn, No. 07-CV-1184, 2011 WL 691658, at *3 (N.D.N.Y. Jan. 24, 2011) (“To establish
standing for a claim for denial of right of access to courts, an inmate must show that he has
suffered an actual injury traceable to the challenged conduct of prison officials—that is, that a
‘nonfrivolous legal claim had been frustrated or was being impeded’ due to the actions of prison
officials.” (quoting Lewis v. Casey, 518 U.S. 343, 353 (1996))), adopted by 2011 WL 691653
(N.D.N.Y. Feb. 18, 2011). Here, Plaintiff has not sufficiently alleged an actual injury. The
Second Circuit has not formally recognized “backward-looking right of access” claims based on
official action that “caused the loss or inadequate settlement of a meritorious case,” but has noted
that even if recognized, “such claims are available only if a judicial remedy was completely
foreclosed by the false statement or nondisclosure.” Sousa v. Marquez, 702 F.3d 124, 128 (2d
Cir. 2012) (citation and quotation marks omitted). At best, Plaintiff’s claim is “premature”
because the destruction of the witness interview materials has not yet deprived Plaintiff of the
opportunity to litigate a meritorious cause of action; indeed, the Court presumes at this stage that
Plaintiff’s allegation regarding what the confidential witness said about Lerouge’s conduct is true
and, as discussed below, denies Defendants’ Motion as to Lerouge on that basis. See Sousa, 702

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F.3d at 128–29 (holding the plaintiff failed to state a backward-looking right-of-access claim
based on allegations that “the government concealed or manipulated relevant facts” where the
plaintiff was sufficiently “aware of the facts giving rise to his claim” at the time he brought his
lawsuit); Braun v. Sterno, No. 18-CV-919, 2018 WL 5778248, at *7 (D. Conn. Nov. 2, 2018)
(finding a due process claim based on denial of access to the courts “premature . . . [b]ecause the
court is permitting his First Amendment claim to proceed against [the defendant], [and therefore]
the destruction of [evidence] has not yet deprived [the plaintiff] of any opportunity to litigate a
nonfrivolous cause of action”); Brown v. Volpe, No. 15-CV-9004, 2017 WL 985895, at *4
(S.D.N.Y. Mar. 13, 2017) (dismissing right-of-access claim where the plaintiff “has filed a civil
action—this very action—against both [defendants]” who allegedly tampered with evidence that
would support his claims against them); McNaughton v. de Blasio, No. 14-CV-221, 2015 WL
468890, at *12 (S.D.N.Y. Feb. 4, 2015) (“[The] [p]laintiff has not alleged in his [a]mended
[c]omplaint . . . that the loss or destruction by the NYPD of any evidence has completely
foreclosed his ability to bring his other constitutional claims, and the filing of the instant suit
would belie any such argument.”), aff’d, 644 F. App’x 32 (2d Cir. 2016); Vallade v. Fischer, No.
12-CV-231, 2014 WL 5481881, at *16 (W.D.N.Y. Oct. 29, 2014) (holding that “even if
[evidence] was willfully destroyed in an effort to cover-up [the] defendants’ conduct, [the]
plaintiff has not established that this caused him to lose or inadequately settle a meritorious
action, since his underlying Eighth Amendment claim . . . remains pending”). Therefore,
Plaintiff’s claims against Cousins are dismissed.
2. Eighth Amendment
Defendants argue that the Amended Complaint fails to state a claim under the Eighth
Amendment because Plaintiff fails to indicate that “the assault on him was anything other than a

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surprise attack” of which Defendants had no notice. (See Defs.’ Mem. 8–13.) The Eighth
Amendment, which prohibits cruel and unusual punishment, requires prison officials to “take
reasonable measures to guarantee the safety of inmates in their custody.” Hayes v. N.Y.C. Dep’t
of Corr., 84 F.3d 614, 620 (2d Cir. 1996); see also Farmer v. Brennan, 511 U.S. 825, 832 (1994)
(same). Specifically, “[p]rison officials have a duty to protect prisoners from violence at the
hands of other inmates since being violently assaulted in prison is ‘simply not part of the penalty
that criminal offenders pay for their offenses against society.’” Lee v. Artuz, No. 96-CV-8604,
2000 WL 231083, at *4 (S.D.N.Y. Feb. 29, 2000) (quoting Farmer, 511 U.S. at 834). 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.” Farmer, 511 U.S.
at 834. Instead, “the prisoner must allege actions or omissions sufficient to demonstrate
deliberate indifference; mere negligence will not suffice.” Hayes, 84 F.3d at 620; see also Price
v. Oropallo, No. 13-CV-563, 2014 WL 4146276, at *8 (N.D.N.Y. Aug. 19, 2014) (“Prison
officials are liable under the Eighth Amendment for harm incurred by an inmate if they act with
deliberate indifference to the inmate’s safety.”).
To satisfy the deliberate indifference standard, a plaintiff must show that (1) “he is
incarcerated under conditions posing a substantial risk of serious harm” and (2) “the defendant
prison officials possessed sufficient culpable intent.” Hayes, 84 F.3d at 620 (citing Farmer, 511
U.S. at 834). The first prong is objective and requires that prison officials provide inmates with
“basic human needs, one of which is ‘reasonable safety.’” Helling v. McKinney, 509 U.S. 25, 33
(1993) (quoting DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 199–200
(1989)). “The second prong of the deliberate indifference test, culpable intent, in turn, involves a
two-tier inquiry.” Hayes, 84 F.3d at 620. “Specifically, a prison official has sufficient culpable

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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.” Id. As the
Supreme Court has made clear, “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.” Farmer, 511 U.S. at 837; see also Price, 2014 WL 4146276, at *8 (explaining that to
establish deliberate indifference, “a plaintiff must prove that the defendant official actually knew
of and disregarded an excessive risk of harm to the plaintiff’s safety”). A defendant’s knowledge
can be established through “inference from circumstantial evidence,” including “from the very
fact that the risk was obvious.” Farmer, 511 U.S. at 842; see also Walker v. Schult, 717 F.3d
119, 125 (2d Cir. 2013) (“Evidence that a risk was obvious or otherwise must have been known
to a defendant may be sufficient for a fact finder to conclude that the defendant was actually
aware of the risk.” (quotation marks omitted)).
As in their Motion To Dismiss the original Complaint, Defendants do not contest that the
Amended Complaint plausibly alleges facts satisfying the objective prong of the deliberate
indifference test, (see Opinion 18), but rather argue that Plaintiff has failed to sufficiently allege
the subjective prong, because he does not allege that Defendants had knowledge of prior
incidents between Ebanks and Plaintiff that would have put Defendants on notice that Ebanks
“posed a substantial risk of harm to Plaintiff, or that the Defendants in fact drew that inference,”
(Defs.’ Mem. 9).
Although Plaintiff does not allege any specific altercations between himself and Ebanks,
“[a] plaintiff may also state a claim for deliberate indifference based on a failure to protect him
against a general risk of harm to all inmates at the facility.” Parris, 947 F. Supp. 2d at 363. “To
do so, a plaintiff must allege that the defendants knew of a history of prior inmate-on-inmate

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attacks similar to the one suffered by the plaintiff and that the measures they should have taken
in response to such prior attacks would have prevented the attack on the plaintiff.” Id.; see also
Farmer, 511 U.S. at 843 (noting that a prison official may not “escape liability for deliberate
indifference by showing that, while he was aware of an obvious, substantial risk to inmate safety,
he did not know that the [plaintiff] was especially likely to be assaulted by the specific prisoner
who eventually committed the assault”). The Amended Complaint identifies several specific
incidents of Ebanks’s behavior that could suggest that Ebanks at least posed a general risk to
other inmates. (See Am. Compl. ¶ 21.) These include references to the fact that Ebanks
regularly screamed out his HIV-positive status in his cell “to threaten staff and inmates,” that he
was on “keeplock” status for assaulting another inmate, that he once set fire to his cell, that he
once threw feces at ICP corrections officers, and that he was moved to D-Company South, the
same area where Plaintiff is housed, because of a fight with another inmate. (Id.) Plaintiff also
alleges that Capra and Aitchison performed the screening process that led to Ebanks’s
designation to ICP, and that Capra, Aitchison, and Johnson regularly discussed Ebanks’s
“volatile behavior” with Ebanks. (Id. ¶¶ 20, 32.)
However, in order to find that a plaintiff has sufficiently pled a claim for deliberate
indifference based on a failure to protect him against a general risk of harm to all inmates, courts
typically require specific allegations of a pattern of analogous inmate-on-inmate attacks that
would make the attack suffered by the plaintiff foreseeable. See, e.g., Hosannah v. Nassau Cty.
Criminal Supreme Court Sergeant Officer(s), No. 16-CV-1045, 2017 WL 3207966, at *12
(E.D.N.Y. July 5, 2017), adopted sub nom. Hosanna v. Sposato, 2017 WL 3207750 (E.D.N.Y.
July 26, 2017) (dismissing deliberate indifference claim where the plaintiff did not “plead facts
sufficient to suggest . . . that there were other attacks against prisoners who held the same

15

‘escape risk’ status as [the] [p]laintiff”); Parris, 947 F. Supp. 2d at 363 (dismissing deliberate
indifference claim where the plaintiff “fail[ed] to allege that there is a history of serious inmateon-inmate assaults in the six block yard [where the plaintiff was attacked], that the defendants
knew of any such history, or that such prior assaults were similar enough to the attack he
suffered that remedial actions would have prevented that attack”).
The Court need not decide this issue with respect to Capra, Aitchison, or Johnson because
Plaintiff has not sufficiently alleged that they disregarded any alleged risk of serious harm. In
fact, Plaintiff’s allegations demonstrate that Sing Sing frequently addressed Ebanks’s violent
behavior and had policies in place to protect other inmates, and that the attack on Plaintiff only
occurred because Lerouge allegedly acted in direct violation of existing policy. Plaintiff alleges
no facts supporting an inference that Capra, Aitchison, or Johnson were aware of and either
ignored or encouraged Lerouge’s alleged misconduct, save for one conclusory allegation that
“Capra, Aitchison, and Johnson were acquiescent to and did not supervise and train Defendant
Lerouge regarding ICP and its residents.” (See Am. Compl. ¶¶ 20, 21, 23, 31, 32, 34.) Plaintiff
acknowledges that Ebanks was on “keeplock” status at the time of the assault, a restricted status
which “isolates unruly prisoners to their[] cells and prevents personal encounters with ICP’s
residents.” (Opinion 4 (quoting Compl. ¶ 13).) He also had been moved to D-Company South
after an altercation with another inmate. (Am. Compl. ¶ 21.) Sing Sing also allegedly did not
allow inmates “free movement” during the Medication Run, and the attack on Plaintiff only
occurred because “Lerouge did not secure D-Company inmates or Ebanks to their cells” in spite
of ICP policy and Ebanks’s keeplock status. (Id. ¶ 23.) At most, the general failure to place
Ebanks in a more restricted environment to prevent injury to any other inmates constitutes
negligence, which is insufficient to state a claim. See Jabbar v. Fischer, 683 F.3d 54, 57 (2d Cir.

16

2012) (“Deliberate indifference requires ‘more than mere negligence.’” (quoting Farmer, 511
U.S. at 835)); Wilkins v. Poole, 706 F. Supp. 2d 314, 319 (W.D.N.Y. 2010) (finding that the
plaintiff failed to state a claim because, “even assuming arguendo that the defendants were
equally aware of the general dangers of prison life,” the plaintiff failed to allege “that the
defendants were aware of specific deficiencies in [prison] policies and failed to act” (italics
omitted)); Cardew v. Fleetwood, No. 98-CV-4704, 2001 WL 533728, at *3 (S.D.N.Y. May 17,
2001) (dismissing deliberate indifference claim where the defendant failed to secure an inmate
on keeplock status because the conduct “was at most negligent”). Absent allegations that Capra,
Aitchison, or Johnson knew of Lerouge’s plan to leave the cells open and failed to intervene,
Plaintiff has failed to allege that they “possessed sufficient culpable intent.” Hayes, 84 F.3d at
620.
Plaintiff’s conclusory allegation that Capra, Aitchison, and Johnson failed to supervise
and train Lerouge also fails to state an Eighth Amendment claim against them. (See Am. Compl.
¶ 34.) Although grossly negligent supervision can support § 1983 liability, “one phrase of
boilerplate . . . is insufficient to plead a deliberate-indifference claim under a failure-to-train or
failure-to-supervise theory.” Stephens v. Venettozzi, No. 13-CV-5779, 2016 WL 929268, at *22
(S.D.N.Y. Feb. 24, 2016) (dismissing failure to protect claim based on failure-to-supervise
theory where the plaintiff “d[id] not . . . describe the nature of the training or supervision that
[the defendant] provided to the officers who allegedly violated his rights, explain why that
training or supervision was deficient, or provide any facts directly connecting the actions of [the
defendant’s] subordinates to a failure of training or supervision”), adopted by 2016 WL 4272376
(S.D.N.Y. Aug. 5, 2016); see also Randle v. Alexander, 960 F. Supp. 2d 457, 478 (S.D.N.Y.
2013) (dismissing § 1983 claim for failure to supervise where the “allegations constitute nothing

17

more than recitations of the applicable standard without supporting factual context”). Plaintiff
does assert that “[t]he policies and laws governing ICP require strict training for at least eight (8)
hours several times a year of all staff interacting with ICP and its residents,” (Am. Compl. ¶ 35),
but does not allege that Lerouge did not receive that training or specify how his training was
deficient. Nor does Plaintiff explain how Lerouge’s deficient training caused Plaintiff’s injury;
on the contrary, Plaintiff alleges that Lerouge intentionally acted in violation of established
prison policy for the purpose of allowing Ebanks to attack other inmates. See Reynolds v.
Giuliani, 506 F.3d 183, 193 (2d Cir. 2007) (noting that in order to establish deliberate
indifference on a failure to train or supervise theory, a plaintiff must allege that the defendant’s
“inadequate supervision actually caused or was the moving force behind the alleged violations”
(citations omitted)); Stephens, 2016 WL 929268, at *22 (dismissing deliberate indifference claim
where the “[p]laintiff does not, for example, describe the nature of the training or supervision
that [the supervisor] provided to the officers who allegedly violated his rights, explain why that
training or supervision was deficient, or provide any facts directly connecting the actions of [the
supervisor]’s subordinates to a failure of training or supervision”); Randle, 960 F. Supp. 2d at
479 (dismissing deliberate indifference claim against supervisor on failure-to-train and failure-tosupervise theories where it was “implausible” that the supervisor would have been aware of a
practice of encouraging inmate-on-inmate violence among a subset of prison guards, especially
given guards’ “alleged cover-up of the incident” involving the plaintiff). Although Plaintiff
alleges that Johnson was “on the ICP Unit” that day but failed to order Lerouge to secure the ICP
inmates or sufficiently supervise Lerouge in his duties to prevent the attack, (Am. Compl. ¶ 24),
there are no allegations that Johnson knew or had reason to believe that Lerouge would
intentionally violate ICP policy for the express purpose of facilitating an inmate-on-inmate

18

attack, see Pettus v. Morgenthau, 554 F.3d 293, 300 (2d Cir. 2009) (concluding that, “[t]o the
extent that the [plaintiff] attempts to assert a failure-to-supervise claim . . . , it lacks any hint that
[the supervisor] acted with deliberate indifference to the possibility that his subordinates would
violate [the plaintiff’s] constitutional rights”); Fortunato v. Bernstein, No. 12-CV-1630, 2015
WL 5813376, at *6 (S.D.N.Y. Sept. 1, 2015) (“Supervisory status, without more, is not sufficient
to subject a defendant to [§] 1983 liability.” (quotation marks omitted)). Plaintiff therefore fails
to state an Eighth Amendment claim against Capra, Aitchison, or Johnson.
On the other hand, with respect to Lerouge, Plaintiff has sufficiently pleaded an Eighth
Amendment claim. Defendants argue that the Amended Complaint “still fails to allege that
Lerouge was present during the alleged assault, and merely repeats the allegation that
immediately preceding the incident, Lerouge ‘did not secure D-Company inmates or Ebanks to
their cells despite ICP being a high security risk area.’” (Defs.’ Mem. 12–13 (quoting Am.
Compl. ¶ 23).) Defendants fail to address the newly added allegation that a witness indicated he
overheard Lerouge tell Ebanks shortly before the attack on Plaintiff, “I know you have issues on
the Unit. I’m leaving the cells open. Go handle your business.” (Am. Compl. ¶ 22.) Taking all
allegations in the Amended Complaint as true, this statement plausibly demonstrates that
Lerouge acted with the requisite intent to constitute deliberate indifference in violation of the
Eighth Amendment. See Graham v. Coughlin, No. 86-CV-163, 2000 WL 1473723, at *5
(S.D.N.Y. Sept. 29, 2000) (“In situations where corrections officers have deliberately left cell[]
doors open in order to leave a prisoner vulnerable to vicious attack, the courts rightly have
expressed outrage.”); see also Morales v. New York State Dep’t of Corr., 842 F.2d 27, 30 (2d
Cir. 1988) (“An inmate’s claim based on negligence, however, ‘is quite different from one
involving injuries caused by another prisoner where officials simply stood by and permitted the

19

attack to proceed.’” (alteration omitted) (quoting Davidson v. Cannon, 474 U.S. 344, 348
(1986))). Construing all inferences in favor of Plaintiff, Lerouge’s statement suggests that he
knew Ebanks would attack another inmate and left the cell doors open specifically to allow him
to do so. See Fischl v. Armitage, 128 F.3d 50, 57–59 (2d Cir. 1997) (vacating dismissal of
Eighth Amendment claim where the record supported the inference that corrections officers
opened cell doors for the purpose of allowing other inmates to attack the plaintiff). Furthermore,
even if Plaintiff’s allegations of prior incidents involving Ebanks are not enough to establish that
Defendants were on notice of a substantial risk to Plaintiff, (see Am. Compl. ¶ 21), Lerouge’s
statement permits the inference that he was aware that Ebanks specifically intended to harm
other inmates, and acted in violation of ICP policy to enable Ebanks to do so. Plaintiff therefore
has sufficiently alleged that Lerouge was both “aware of facts from which the inference could be
drawn that a substantial risk of serious harm exists, and . . . [drew] the inference.” Farmer, 511
U.S. at 837. Defendants’ Motion To Dismiss the Eighth Amendment claim against Lerouge is
therefore denied. 1
3. Fourteenth Amendment
The Amended Complaint alleges a claim under the Fourteenth Amendment. (Am.
Compl. ¶ 3.) However, it is unclear whether Plaintiff is claiming a violation of procedural or
substantive due process, or both. To the extent that the Amended Complaint alleges a violation
of substantive due process, it falls under Plaintiff’s Eighth Amendment claim for failure to

1

The Court declines to consider at this time whether any Defendant is protected by
qualified immunity. Defendants’ qualified immunity “argument,” excluding the statement of the
legal standard, runs to approximately half a page and fails to meaningfully apply the qualified
immunity caselaw to this case, instead merely reiterating Defendants’ position that Plaintiff has
not sufficiently alleged personal involvement or awareness of a risk to Plaintiff on the part of
Defendants, arguments the Court has already rejected with respect to Lerouge. (See Defs.’ Mem.
18–19.)
20

protect and deliberate indifference, which is addressed above. Because Plaintiff’s claim “is
covered by . . . [the] Eighth Amendment, the claim must be analyzed under the standard
appropriate to that specific provision, not under the rubric of substantive due process.” County
of Sacramento v. Lewis, 523 U.S. 833, 843 (1998); see also Kia P. v. McIntyre, 235 F.3d 749,
757–58 (2d Cir. 2000) (“Where another provision of the Constitution provides an explicit textual
source of constitutional protection, a court must assess a plaintiff’s claims under that explicit
provision and not the more generalized notion of substantive due process.” (alterations and
quotation marks omitted)). Because Plaintiff does not allege any separate conduct that “is so
egregious, so outrageous, that it may fairly be said to shock the contemporary conscience,” the
Court concludes that Plaintiff’s substantive due process claim is “subsumed in [his] more
particularized allegations” regarding his Eighth Amendment claim. Velez v. Levy, 401 F.3d 75,
93–94 (2d Cir. 2005) (quoting Lewis, 523 U.S. at 847 n.8). 2 Accordingly, Plaintiff’s substantive
due process claim is dismissed.

2

The Second Circuit recently held that deliberate indifference claims under the Due
Process Clause of the Fourteenth Amendment are analyzed differently than the same claims
under the Eighth Amendment. See Darnell v. Pineiro, 849 F.3d 17, 35 (2d Cir. 2017). However,
the Second Circuit limited its holding to pretrial detainees, who “have not been convicted of a
crime and thus may not be punished in any manner.” Id. at 29 (citation and quotation marks
omitted); see also id. at 33–34 (relying on the Supreme Court’s decision in Kingsley v.
Hendrickson, 135 S. Ct. 2466 (2015), which analyzed excessive force claims by pretrial
detainees under the Fourteenth Amendment); McCray v. Lee, No. 16-CV-1730, 2017 WL
2275024, at *4 (S.D.N.Y. May 24, 2017) (“The status of a plaintiff as either a convicted prisoner
or pretrial detainee dictates whether his conditions of confinement are analyzed under the Eighth
or Fourteenth Amendment. . . . While the decision in Darnell set forth a new analysis for claims
brought by pretrial detainees, the analysis under the Eighth Amendment remains intact.”
(citation omitted)). Plaintiff was not a pretrial detainee at the relevant time. (Am. Compl. ¶ 7.)
In any event, Darnell maintained that “any § 1983 claim for a violation of due process requires
proof of a mens rea greater than mere negligence.” 849 F.3d at 36 (italics omitted). Thus, to the
extent Plaintiff’s substantive due process deliberate indifference claim is not subsumed by his
Eighth Amendment deliberate indifference claim, it still fails, because, as explained above,
Plaintiff has not plausibly alleged that Defendants, with the exception of Lerouge, acted with
more than mere negligence. See Farmer, 511 U.S. at 834 (explaining that the defendant must act
21

To the extent the Amended Complaint alleges a procedural due process claim, it is most
plausibly based on Quick’s delay in processing Plaintiff’s grievance. (Am. Compl. ¶¶ 28–29.)
“[T]o present a due process claim, a plaintiff must establish (1) that he possessed a liberty
interest and (2) that the defendant(s) deprived him of that interest as a result of insufficient
process.” Giano v. Selsky, 238 F.3d 223, 225 (2d Cir. 2001) (quotation marks omitted). “It is
well-established that prison grievance procedures do not create a due-process-protected liberty
interest.” Mimms v. Carr, No. 09-CV-5740, 2011 WL 2360059, at *10 (E.D.N.Y. June 9, 2011),
aff’d, 548 F. App’x 29 (2d Cir. 2013); see also Kotler v. Boley, No. 17-CV-239, 2018 WL
4682026, at *5 (S.D.N.Y. Sept. 28, 2018) (dismissing “[the] [p]laintiff’s claim that [the]
[d]efendant . . . violated his right to due process by interfering with the grievance process and
making it extremely difficult for [the] [p]laintiff to file a grievance in this matter,” because
“inmates do not have a protected liberty interest in the processing of their prison grievances”
(alterations and quotation marks omitted)); Torres v. Mazzuca, 246 F. Supp. 2d 334, 342
(S.D.N.Y. 2003) (“Prison grievance procedures do not confer any substantive right upon an
inmate requiring the procedural protections envisioned by the Fourteenth Amendment.”). Nor
does Plaintiff possess a protected liberty interest in having Defendants follow prison policy, as
discussed in the Court’s Opinion. (See Opinion 26.) See also Holland v. City of New York, 197
F. Supp. 3d 529, 549 (S.D.N.Y. 2016) (“An alleged violation of a prison policy, directive, or
regulation, in and of itself, does not give rise to a federal claim, because ‘federal constitutional
standards rather than state law define the requirements of procedural due process.’” (alterations
omitted) (quoting Russell v. Coughlin, 910 F.2d 75, 78 n.1 (2d Cir. 1990))); Rivera v. Wohlrab,

voluntarily, not accidentally, indifferent to a serious risk). With respect to Lerouge, Plaintiff’s
substantive due process claim is clearly subsumed within his Eighth Amendment claim, which
the Court has already ruled is sufficiently pleaded.
22

232 F. Supp. 2d 117, 123 (S.D.N.Y. 2002) (“[T]he law is settled that the failure to follow a
DOC[C]S Directive or prison regulation does not give rise to a federal constitutional claim.”).
Accordingly, Plaintiff’s Fourteenth Amendment claim is dismissed.
4. First Amendment
Plaintiff’s Amended Complaint asserts a First Amendment claim for denial of the right to
petition the government. (Am. Compl. ¶ 3.) The First Amendment claim appears to be based on
Quick’s failure to process Plaintiff’s grievance, thereby preventing him from exhausting his
administrative remedies as required by the Prison Litigation Reform Act (“PLRA”) and denying
him the ability to bring a § 1983 suit. See 42 U.S.C. § 1997e(a). “The Second Circuit has held
that the filing of a prison grievance is protected activity insomuch as that ‘retaliation against a
prisoner for pursuing a grievance violates the right to petition government for the redress of
grievances guaranteed by the First and Fourteenth Amendments and is actionable under
§ 1983.’” Rickett v. Orsino, No. 10-CV-5152, 2013 WL 1176059, at *20 (S.D.N.Y. Feb. 20,
2013) (quoting Graham v. Henderson, 89 F.3d 75, 80 (2d Cir. 1996)), adopted by 2013 WL
1155354 (S.D.N.Y. Mar. 21, 2013); see also McCloud v. Kane, 491 F. Supp. 2d 312, 317
(E.D.N.Y.2007) (“The Second Circuit has held that retaliation against a prisoner for pursuing a
grievance violates the right to petition government for the redress of grievances and is actionable
under [§] 1983.” (citing Graham, 89 F.3d at 80)). However, “[t]o the extent Plaintiff alleges a
stand-alone claim involving interference with his access to [prison] grievance procedures, such a
claim is not cognizable under [§] 1983.” Rickett, 2013 WL 1176059, at *20; see also Mimms,
2011 WL 2360059, at *10 (collecting cases); Johnson v. Barney, No. 04-CV-10204, 2007 WL
900977, at *1 (S.D.N.Y. Mar. 22, 2007) (“While a prisoner’s right to meaningful access to the
courts is clearly protected by the First Amendment right to petition the government, the same

23

cannot be said for a prison grievance system.” (citation omitted)). Although “[t]he First
Amendment protects a prisoner’s right to meaningful access to the courts and to petition the
government for the redress of grievances . . . inmate grievance programs created by state law are
not required by the Constitution and consequently allegations that prison officials violated those
procedures [do] not give rise to a cognizable § 1983 claim.” Harris v. Westchester Cty. Dep’t of
Corr., No. 06-CV-2011, 2008 WL 953616, at *5 (S.D.N.Y. Apr. 3, 2008) (quotation marks
omitted). “[I]n the event that prison officials ignore a grievance that raises constitutional claims,
the proper avenue to seek relief is the course taken by [P]laintiff here: directly petitioning the
government for redress of his claims.” Id.; see also Harnage v. Faneuff, No. 15-CV-1033, 2017
WL 6629297, at *10 (D. Conn. Nov. 29, 2017) (“[A]lthough the plaintiff alleges that the
defendants interfered with his ability to utilize the prison grievance procedures, such interference
does not necessarily prevent a prisoner from filing a lawsuit. Failure to exhaust administrative
remedies is an affirmative defense that can be waived.” (citing Jones v. Bock, 549 U.S. 199, 212
(2007))).
Plaintiff alleges that he filed a grievance with Quick, and that it was ignored and
ultimately returned to him as untimely. Although this may violate prison grievance procedures,
Plaintiff has not been prevented from petitioning the government for redress, as evidenced by the
existence of this lawsuit. 3 Accordingly, Plaintiff’s First Amendment claim is dismissed.

3

Although Defendants have raised failure to exhaust administrative remedies as a
defense, and may do so again at the summary judgment stage, this defense only prevails on a
motion to dismiss if failure to exhaust is “clear on the face” of the Amended Complaint. Brinson
v. Kirby Forensic Psych. Ctr., No. 16-CV-1625, 2018 WL 4680021, at *6 (S.D.N.Y. Sept. 28,
2018) (citations omitted). Here, the Court cannot say that it is apparent from the Amended
Complaint that this defense will prevail as a matter of law. There is an exception to the PLRA
exhaustion requirement where grievance procedures were effectively made unavailable by prison
officials. See Ross v. Blake, 136 S. Ct. 1850, 1860 (2016) (noting that an administrative
procedure may be unavailable “when prison administrators thwart inmates from taking
24

5. ADA Claim
Plaintiff also alleges that Defendants “interfered with [Plaintiff’s] residential mental
health care” in violation of the ADA because “their conduct causing [Plaintiff’s] injuries caused
him to downward spiral, suffer shock, and deep depression in fear of HIV infection and
permanent disfigurement of his face.” (Am. Compl. ¶ 37.) 4
First, “[i]nsofar as [Plaintiff] is suing the individual [D]efendants in their individual
capacities, . . . the ADA . . . [does not] provide[] for individual capacity suits against state
officials.” Garcia v. S.U.N.Y. Health Scis. Ctr. of Brooklyn, 280 F.3d 98, 107 (2d Cir. 2001); see

advantage of a grievance process through machination, misrepresentation, or intimidation”);
Brownell v. Krom, 446 F.3d 305, 311–12 (2d Cir. 2006) (noting that when a plaintiff seeks to
counter a failure-to-exhaust defense, courts must ask “whether administrative remedies were in
fact ‘available’ to the prisoner . . . whether the defendants’ own actions inhibiting the inmate’s
exhaustion of remedies may estop one or more of the defendants from raising the plaintiff’s
failure to exhaust as a defense . . . [and] whether special circumstances have been plausibly
alleged that justify the prisoner’s failure to comply with administrative procedural requirements”
(quotation marks omitted)); see also Albritton v. Morris, No. 13-CV-3708, 2018 WL 1609526, at
*12 (S.D.N.Y. Mar. 29, 2018) (same). Should Defendants again raise failure to exhaust as an
affirmative defense, Plaintiff is free to argue that Quick prevented him from properly exhausting
his administrative remedies. See Terry v. Hulse, No. 16-CV-252, 2018 WL 4682784, at *8
(S.D.N.Y. Sept. 28, 2018) (denying summary judgment based on failure to exhaust where the
plaintiff “alleged that he gave his grievance to an officer . . . and his grievance was never filed”);
Harnage, 2017 WL 6629297, at *10 (“[I]f the defendants’ actions rendered the grievance
procedures unavailable, the failure to exhaust institutional remedies can be excused.” (citing
Ross, 136 S. Ct. at 1860)).
4

Plaintiff alleges violations of “the Mental Health and Americans w/ Disabilities Acts
(‘MHSA’ & ‘ADA’) among other Health and Mental Health Acts of Congress.” (Am. Compl.
¶ 3, 37.) It is not clear what statutes Plaintiff seeks to invoke other than the ADA. To the extent
Plaintiff seeks to bring claims under New York Mental Hygiene Law, see Manhattan State
Citizens’ Grp., Inc. v. Bass, 524 F. Supp. 1270, 1272 (S.D.N.Y. 1981) (noting that the New York
Mental Health Act is “codified in the Mental Hygiene Law”), this statute does not confer a
private right of action, see McWilliams v. Catholic Diocese of Rochester, 536 N.Y.S.2d 285, 286
(App. Div. 1988) (“The Mental Hygiene Law is a regulatory statute . . . . No private cause of
action is authorized for violations of the Mental Hygiene Law.” (citation omitted)); see also
Lombardo v. Holanchock, No. 07-CV-8674, 2008 WL 2543573, at *10 (S.D.N.Y. June 25, 2008)
(same); Lombardo v. Stone, No. 99-CV-4603, 2001 WL 940559, at *5 (S.D.N.Y. Aug. 20, 2001)
(same).
25

also Montalvo v. Lamy, 139 F. Supp. 3d 597, 610 (W.D.N.Y. 2015) (“Under . . . the ADA . . . ,
individuals may not be sued in their individual or personal capacity.” (alteration omitted)).
Because Plaintiff is expressly suing all Defendants “in their individual capacity,” (Am. Compl.
¶ 14), his claim for violation of the ADA must be dismissed.
Second, to the extent Plaintiff’s Amended Complaint, construed liberally, can be read as
seeking prospective injunctive relief against Defendants, (see Am. Compl. 8 (seeking “such other
and further relief as this Court deem just and proper”)), such a claim can proceed against
Defendants in their official capacities only, see Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009). 5
However, even if Plaintiff seeks such relief, his claim still fails. “To state a claim under Title II
of the ADA, a prisoner must show: (1) he or she is a qualified individual with a disability; (2) he
or she is being excluded from participation in, or being denied the benefits of some service,
program, or activity by reason of his or her disability; and (3) the entity [that] provides the
service, program, or activity is a public entity.” Hallett v. New York State Dep’t of Corr. Servs.,
109 F. Supp. 2d 190, 198 (S.D.N.Y. 2000) (citation and quotation marks omitted).

5

“Whether individuals can be sued for damages under the ADA or Rehabilitation Act in
their official capacities, however, is unsettled in th[e] [Southern] District.” Jones v. Ng, No. 14CV-1350, 2015 WL 998467, at *10 n.20 (S.D.N.Y. Mar. 5, 2015) (emphases added). Assuming
that such a claim can be brought, and even if Plaintiff brought such a claim, the claim would still
fail because a plaintiff cannot recover damages against a state (or state agency or official) unless
“the plaintiff can establish that the Title II violation was motivated by either discriminatory
animus or ill will due to disability.” Garcia, 280 F.3d at 112; accord Johnson v. Goord, No. 01CV-9587, 2004 WL 2199500, at *5 (S.D.N.Y. Sept. 29, 2004) (dismissing official capacity
claims “under [§] 504 of the Rehabilitation Act and Title II of the ADA . . . because those laws
do not provide for money damages against the state or state officials in their official capacities,
absent a showing that any violation was motivated by discriminatory animus or ill will due to the
disability” (citing, inter alia, Garcia, 280 F.3d at 108, 111–12)). Here, the Amended Complaint
does not allege that Defendants acted with discriminatory animus or ill will based on any
qualifying disability. (See generally Am. Compl.)
26

Even assuming Plaintiff is a “qualified individual” with a disability, and that Defendants’
conduct denied Plaintiff the benefits of his mental health treatment program, Plaintiff has
nowhere alleged that his mistreatment was “by reason of his . . . disability.” Id. Accordingly,
Plaintiff’s ADA claim fails. See Doe v. Pfrommer, 148 F.3d 73, 82 (2d Cir. 1998) (affirming
summary judgment dismissing ADA claims that “do not draw their substance from any allegedly
discriminatory animus against the disabled”); see also Schnauder v. Gibens, 679 F. App’x 8, 11
(2d Cir. 2017) (affirming dismissal of ADA claim because the plaintiff’s purported disability
“was not the reason he was unable to access medical services”); Alster v. Goord, 745 F. Supp. 2d
317, 340 (S.D.N.Y. 2010) (finding that the plaintiff failed to demonstrate that his alleged
mistreatment by the defendants “occurred because of his disability” (quotation marks omitted)).
III. Conclusion
For the foregoing reasons, Defendants’ Motion To Dismiss is granted in part and denied
in part. Defendants’ Motion is denied with respect to Plaintiff’s Eighth Amendment claims
against Defendant Lerouge. Plaintiff’s claims against Capra, Aitchison, Johnson, Cousins, and
Quick are dismissed. Plaintiff’s claims against Lerouge under the First and Fourteenth
Amendments, as well as under the ADA, are also dismissed. Because this is the second
adjudication of Plaintiff’s claims on the merits and he has failed to state a claim, the dismissal is
with prejudice. Even pro se plaintiffs are not entitled to file an amended complaint if the
complaint “contains substantive problems such that an amended pleading would be futile.”
Lastra v. Barnes & Noble Bookstore, No. 11-CV-2173, 2012 WL 12876, at *9 (S.D.N.Y. Jan. 3,
2012), aff’d, 523 F. App’x 32 (2d Cir. 2013). Because the Court finds that further amendment
would be futile, Plaintiff’s claims are dismissed with prejudice.

27

The Clerk of the Court is respectfully requested to terminate the pending motion, (Dkt.
No. 67), to terminate Defendants Capra, Aitchison, Johnson, Cousins, and Quick from the
docket, and to mail a copy of this Opinion to Plaintiff.
SO ORDERED.

Ji_,

2019
Dated: March
White Plams, New York

28