Holmes v. Capra et al

Filing 30

OPINION & ORDER re: 28 MOTION to Dismiss pursuant to Fed. R. Civ. P. 12(b)(6). filed by Michael Capra, Dana Gage, M. Royce. For the foregoing reasons, Defendants' motion to dismiss the claims against Gage, Capra, and Royce is GRANTED. Plaintiff shall have until July 24, 2018 to amend his Complaint in accordance with this Court's decision. If Plaintiff elects to file an amended complaint, Defendant shall have until 21 days from the date of Plaintiff's filing t o move or file responsive pleadings. The Court cautions Plaintiff, however, that any amended complaint will replace, not supplement, the current Complaint. That is, Plaintiff must include all claims he wishes to assert in his amended complaint. The Court further cautions Plaintiff that given his previous failure to correspond with the Court or oppose Defendants' motion, a failure to amend his Complaint by the aforementioned date will result in the dismissal of this action pursuant to F ederal Rule of Civil Procedure 41(b), for failure to prosecute and failure to comply with a court order. The Clerk of the Court is respectfully directed to terminate the motion at ECF No. 28. Further, although Plaintiff has not updated his address with the Court, a review of the New York State Department of Corrections and Community Supervision online database revealed that Plaintiff is currently incarcerated at Green Haven Correctional Facility. Accordingly, the Clerk of the Court is dire cted to mail a copy of this Opinion to Plaintiff at Devaughn Holmes, DIN 05B2079, Green Haven Correctional Facility, 594 Rt. 216, Stormville, New York 12582-0010 and file proof of such mailing on the docket. SO ORDERED. (Signed by Judge Nelson Stephen Roman on 6/25/2018) (rj)

-,,---

•

• r-,•=•·~= •-·

__ J•,_

1\ DSDC SDNY

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
DEVAUGHN HOLMES,

\LOCUMENT
,,· ELECTRONICAl}.',' L
I1 1! HOC//: _ _ _ _ .~----

:' i'ATE FIL!<:D:_

0 [2~/j__o.~-

Plaintiff,
-againstMICHAEL CAPRA, Superintendent of Sing Sing
Correctional Facility; M. ROYCE, Deputy
Superintendent of Security; DANA GAGE, M.D.,
Director of Medical Aervices; NURSES JOHN and
JANE DOES 1-30,
Defendants.

No. 17-CV-01313 (NSR)
OPINION & ORDER

NELSONS. ROMAN, United States District Judge
Plaintiff Devaughn Holmes commenced this action pursuant to 42 U.S.C. § 1983,
alleging violations of his Eighth Amendment rights in connection with his incarceration at Sing
Sing Correctional Facility ("Sing Sing"). (See Comp!., ECF No. 1.) Specifically, Plaintiff alleges
that various Sing Sing staff members violated his Eighth Amendment rights when they failed to
protect him from attack by other inmates and failed to provide him with proper medical care
following those attacks. (Id.)
Presently before the Court is Defendants' motion to dismiss the Complaint pursuant to
Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. (See Defs.' Mot. to Dismiss,
ECF No. 28.) For the reasons that follow, Defendants' motion to dismiss the Complaint is
GRANTED.

BACKGROUND
I.

Factual Background 1

Plaintiff was placed in protective “keeplock” custody during a portion of his incarceration at
Sing Sing Correctional Facility. (Compl. ¶ 17.) Keeplocked inmates are generally confined to
their cells, but are allowed one shower and one hour of recreation a day. (Id.) Even during these
periods, however, keeplocked inmates are to be kept separate from the correctional facility’s
general population. (Id.)
On February 19, 2014, an unidentified Sing Sing Sergeant allowed Plaintiff out of his cell
for his daily shower. (Id. ¶ 18.) As Plaintiff was coming out of the shower, another inmate
suddenly approached him and began punching him in the face repeatedly. (Id.) Although
Plaintiff suffered injuries from the punches, he was not provided with medical attention. (Id.)
Three days later, on February 22, 2014, Plaintiff, who was still housed in protective
custody, was allowed out of his cell to retrieve his lunch tray. (Id. ¶ 19.) As Plaintiff was walking
down the gallery, another inmate suddenly punched him and cut Plaintiff in the face and mouth
with a razor-like object. (Id.) As a result, Plaintiff required several stitches on the outside and
inside of his lip and chin and has suffered permanent facial scarring. (Id.)

1

The following facts are primarily derived from the Complaint, and are assumed as true for the
purposes of Defendants’ motion to dismiss. See DiFolco v. MSNBC Cable LLC, 622 F.3d 104,
111 (2d Cir. 2010) (“In considering a motion to dismiss for failure to state a claim pursuant to
Rule 12(b)(6), a district court may consider the facts alleged in the complaint, documents
attached to the complaint as exhibits, and documents incorporated by reference in the
complaint.”).
2

II.

Procedural Background
Plaintiff commenced the present action, while represented by counsel, on February 21,

2017. (See Compl.) Plaintiff’s Complaint raises two Eighth Amendment 2 claims against various
Sing Sing staff members, alleging that they displayed a deliberate indifference to his safety and
serious medical needs during his incarceration. (Id.)
On June 26, 2017, Defendants submitted a letter to the Court requesting a pre-motion
conference to address their anticipated motion to dismiss the Complaint pursuant to Federal Rule
of Civil Procedure 12(b)(6). (ECF No. 14.) Plaintiff, via counsel, opposed Defendants’ request
for a pre-motion conference in a response dated June 29, 2017. (ECF No. 15.) Following a
conference with all parties on June 30, 2017, the Court granted Defendants leave to file a motion
to dismiss and set a briefing schedule for the anticipated motion. (Minute Entry for June 30, 2017
Proceedings.)
Plaintiff’s counsel subsequently requested an opportunity to amend the Complaint, which
this Court grated on August 24, 2017. (ECF No. 19.) The Court granted Plaintiff until September
29, 2017 to amend the Complaint and extended the briefing schedule for Defendants’ anticipated
motion to dismiss. (Id.) Pursuant to the updated briefing schedule set by this Court, Defendants
were to serve their moving papers on October 27, 2017, Plaintiff’s opposition was due November
27, 2017, and Defendants’ reply was to be served on December 12, 2017, with all papers to be
filed on the date of the reply. (Id.)

2

The Complaint also cites the Fourteenth Amendment but does not raise a discrete Fourteenth
Amendment claim. Rather, Plaintiff’s Eighth Amendment claims are asserted against
Defendants—who are not federal actors—via the Fourteenth Amendment. See Estelle v. Gamble,
429 U.S. 97, 101 (1976) (noting that the Eighth Amendment’s protections against cruel and
unusual punishment are made applicable to the States by the Fourteenth Amendment).

3

However, Plaintiff failed to amend his Complaint by the aforementioned date. Instead,
Plaintiff’s counsel filed an application to be relieved from further representing Plaintiff on
October 20, 2017. (ECF No. 23.) Following the submission of a supporting affidavit under seal,
the Court issued an order granting counsel’s application on November 29, 2017. (Opinion and
Order, ECF No. 26.) Additionally, the order directed Plaintiff to notify the Court by December
29, 2017 whether he retained substitute counsel or whether he intended to proceed pro se. (Id.) A
few days later, outgoing counsel filed an affidavit attesting to having served Plaintiff with the
Court’s November 29, 2017 Order. (ECF No. 27.)
Defendants served their motion on the date set by the briefing schedule and, pursuant to
the Court’s instructions, electronically filed their motion to dismiss the Complaint on the Court’s
electronic filing system on December 6, 2018. (ECF No. 28.)
To date, Plaintiff has failed to oppose Defendants’ motion or otherwise correspond with
the Court in any way. Accordingly, the Court deems Defendants’ motion to dismiss fully
submitted. However, the Court will consider the arguments raised by Plaintiff’s former counsel
in the letter opposing Defendants’ request for a pre-motion conference, to the extent relevant, in
deciding the present motion.
LEGAL STANDARD
To survive a Rule 12(b)(6) motion, a complaint must plead “enough facts to state a claim
to relief that is plausible on its face” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A
claim is facially plausible when the factual content pleaded allows a court “to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). “While legal conclusions can provide the framework of a complaint,
they must be supported by factual allegations.” Id. at 679. In considering a 12(b)(6) motion, the

4

Court must take all material factual allegations as true and draw reasonable inferences in the
non-moving party’s favor, but the Court is “not bound to accept as true a legal conclusion
couched as a factual allegation.” Id. at 678 (internal quotation marks omitted). Nor must the
Court credit “mere conclusory statements” or “[t]hreadbare recitals of the elements of a cause of
action.” Id.
Further, a court is generally confined to the facts alleged in the complaint for the
purposes of considering a motion to dismiss pursuant to 12(b)(6). Cortec Indus. v. Sum Holding
L.P., 949 F.2d 42, 47 (2d Cir. 1991). A court may, however, consider documents attached to the
complaint, statements or documents incorporated into the complaint by reference, matters of
which judicial notice may be taken, public records, and documents that the plaintiff either
possessed or knew about, and relied upon, in bringing the suit. See Kleinman v. Elan Corp., plc.
706 F.3d 145, 152 (2d Cir. 2013).
Where, as here, a plaintiff proceeds pro se, the court must construe the Complaint liberally
and interpret it to raise the strongest arguments that it suggests. Askew v. Lindsey, No. 15-CV7496 (KMK), 2016 WL 4992641, at *2 (S.D.N.Y. Sept. 16, 2016) (citing Sykes v. Bank of Am.,
723 F.3d 399, 403 (2d Cir. 2013)). Yet, “‘the liberal treatment afforded to pro se litigants does
not exempt a pro se party from compliance with relevant rules of procedural and substantive
law.’” Id. (quoting Bell v. Jendell, 980 F. Supp. 2d 555, 559 (S.D.N.Y. 2013)). 3

3

Although Plaintiff was initially represented by counsel in this action, given his failure to notify
the Court whether he obtained substitute counsel, the Court will apply the more liberal standards
for pro se litigants out of an abundance of caution.
5

DISCUSSION
I.

Personal Involvement of Defendants Capra, Royce, and Gage
Defendants argue that Plaintiff’s sparse allegations fail to adequately establish the

personal involvement of Defendants Capra, Royce, and Gage in any of the alleged constitutional
violations. (Defs.’ Mem. of Law in Supp of Mot. to Dismiss (“Defs.’ Mot.”) at 5, ECF No. 29.)
This Court agrees.
Although Plaintiff alleges that Defendants Capra, Royce, and Gage each enjoy a
supervisory role at Sing Sing Correctional Facility, (Compl. ¶ 12), “a defendant in a §1983
action may not be held liable for damages for constitutional violations merely because [they]
held a high position of authority.” Black v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996); see also
Grullon v. City of New Haven, 720 F.3d 133, 138 (2d Cir. 2013) (affirming the district court’s
dismissal of claims against a prison warden where plaintiff did not allege the warden’s personal
involvement in, or awareness of, the health, safety, and communications issues raised by
plaintiff); Walker v. Schriro, No. 11-CV-9299 (JPO), 2013 WL 1234930, at *15 (S.D.N.Y. Mar.
26, 2013) (“A defendant’s status as warden or commissioner of a prison, standing alone, is [ ]
insufficient to support a finding of supervisory liability.”). Rather, “a plaintiff must establish a
given defendant’s personal involvement in the claimed violation in order to hold that defendant
liable in his individual capacity.” Warren v. Pataki, 823 F.3d 125, 136 (2d Cir.) (emphasis
added) (internal quotation marks omitted), cert. denied sub nom. Brooks v. Pataki, 137 S. Ct. 380
(2016). As the Second Circuit has explained, the personal involvement of a supervisory
defendant may be shown by evidence 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
6

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.
Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995).
Courts in this Circuit are “divided as to whether the five categories announced in Colon
may still be used as the bases for liability under § 1983” following the Supreme Court’s decision
in Ashcroft v. Iqbal, 556 U.S. 662 (2009). Allah v. Annucci, No. 16-CV-1841 (KMK), 2017 WL
3972517, at *6 (S.D.N.Y. Sept. 07, 2017). 4 However, even assuming the continuing vitality of
all of the Colon factors, Plaintiff has failed to allege the personal involvement of Defendants
Capra, Royce, and Gage in any constitutional violaitons.
As to Defendants Capra and Royce—the Superintendent and the Deputy Superintendent
of Security at Sing Sing Correctional Facility, respectively—Plaintiff does not include any
factual allegations regarding their role in the alleged Eighth Amendment violations. Indeed, there
are only two references to either Defendant in the entirety of Plaintiff’s Complaint: in the case’s
caption and in Plaintiff’s statement regarding their respective titles. (See generally Compl.) The

4

In Iqbal, the Supreme Court held that “[b]ecause 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.” 556 U.S. at 676. In so holding, the Court
explicitly rejected the argument that, “a supervisor’s mere knowledge of his subordinate’s
discriminatory purpose amounts to the supervisor’s violating the Constitution.” Id. at 677.
The Second Circuit has not squarely addressed how Iqbal, which “may have heightened
the requirements for showing a supervisor’s personal involvement with respect to certain
constitutional violations,” affects the standards in Colon for establishing liability. Allah, 2017
WL 3972517, at *6 (internal quotation marks and citations omitted); see also Reynolds v.
Barrett, 685 F.3d 193, 206 n.14 (2d Cir. 2012) (“Iqbal has, of course, engendered conflict within
our Circuit about the continuing vitality of the supervisory liability test set forth in Colon v.
Coughlin.” (internal citation omitted)).
7

Complaint is otherwise utterly devoid of any mention of these Defendants or any explanation of
how they displayed a deliberate indifference to Plaintiff’s safety or medical needs.
For instance, Plaintiff does not allege that Defendants, themselves, released him from
keeplock custody without ensuring that no other inmates were present. Nor does Plaintiff allege
that he raised any safety concerns to Defendants directly, that Defendants established or
continued an unconstitutional policy or custom, or that Defendants were somehow grossly
negligent in supervising or training their subordinates. Without any such allegations, Plaintiff
fails to adequately state the personal involvement of Defendants Gage and Royce in any
constitutional violation. See Calvin v. Schmitt, No. 15-CV-6584 (NSR), 2017 WL 4280683, at *8
(S.D.N.Y. July 7, 2017) (dismissing claim against a defendant who was named in the caption but
not otherwise mentioned in the complaint); Mann v. Daniels, No. 10-CV-7540 (PKC) (THK),
2011 WL 2421285, at *2 (S.D.N.Y. June 9, 2011) (dismissing Eighth Amendment deliberate
indifference claim against defendants where “[n]either the body of the Complaint nor the
attached grievances contain[ed] allegations indicating if or how [they] were involved in the
alleged [c]onstitutional deprivation”); Dove v. Fordham Univ., 56 F. Supp. 2d 330, 335
(S.D.N.Y. 1999), aff’d sub nom. Dove v. O’Hare, 210 F.3d 354 (2d Cir. 2000) (“It is well-settled
that where the complaint names a defendant in the caption but contains no allegations indicating
how the defendant violated the law or injured the plaintiff, a motion to dismiss the complaint in
regard to that defendant should be granted.” (internal quotation marks and citations omitted)).
Accordingly, Plaintiff’s claims against Gage and Royce are dismissed. However, to the
extent that Plaintiff may, in good faith, plead additional facts establishing Gage and Royce’s
personal involvement in the alleged Eighth Amendment violations, he is granted leave to replead
his claim. See Barnes v. United States, 204 F. App’x 918, 919 (2d Cir. 2006) (summ. order)

8

(noting that a pro se complaint “should not be dismissed without granting leave to replead at
least once when [a liberal] reading gives any indication that a valid claim might be stated”
(internal quotations omitted)).
Plaintiff’s claims against Defendant Gage are dismissed for similar reasons. Like
Defendants Royce and Capra, Defendant Gage is only mentioned in passing in the Complaint.
Indeed, the only allegation against Defendant Gage is that following the alleged attacks,
“medical staff at Sing Sing, under the direction of DANA GAGE, M.D., Director of Medical
Services, failed to provide Plaintiff with adequate medical treatment.” (Compl. ¶ 24.) Besides
being entirely conclusory, this single allegation is also insufficient to establish Gage’s personal
involvement in any deliberate indifference claim. See Harrison v. City of New York, No. 15-CV4141, 2017 WL 4162340, at *7 (S.D.N.Y. Sept. 19, 2017) (finding insufficient personal
involvement where there were no allegations that the supervisory medical provider participated
directly in any deprivation of medical care or failed to adequately train and supervise the
individual medical providers); Casiano v. Cty. of Nassau, No. 16-CV-1194 (SJF) (ARL), 2017
WL 4484338, at *4 (E.D.N.Y. Sept. 30, 2017) (dismissing Eighth Amendment medical
indifference claim where the plaintiff failed to allege that the defendant “had actual knowledge”
of the inmate’s specific medical condition or that the defendant “received and reviewed
grievances” from the inmate”); Reid v. Artus, 984 F. Supp. 191, 195 (S.D.N.Y. 1997) (dismissing
a prisoner’s § 1983 claim against a supervisory official where the pleadings failed to establish
“any factual basis upon which a fact finder could reasonably conclude personal involvement by
the supervisory official defendant”). Accordingly, Plaintiff’s claims against Defendant Gage—
like those against Defendants Capra and Royce—are also dismissed, without prejudice to replead
with additional factual support.

9

II.

Qualified Immunity

Defendants additionally contend that they are entitled to qualified immunity. “In general,
public officials are entitled to qualified immunity if (1) their conduct does not violate clearly
established constitutional rights, or (2) it was objectively reasonable for them to believe their acts
did not violate those rights.” Weyant v. Okst, 101 F.3d 845, 857 (2d Cir. 1996); see also Hall v.
New York, 476 F. App’x 474, 477 (2d Cir. 2012) (summ. order).
“Typically, the defense of qualified immunity will ‘rest on an evidentiary showing of what
the defendant did and why.’” Constant v. Annucci, No. 16-CV-3985 (NSR), 2018 WL 1684411,
at *4 (S.D.N.Y. Apr. 5, 2018) (quoting Lamzot v. Phillips, No. 04-CV-6719 (LAK), 2006 WL
686578, at *8 (S.D.N.Y. Mar. 16, 2006)). On a 12(b)(6) motion, however, defendants “must
accept [a] more stringent standard.” McKenna v. Wright, 386 F.3d 432, 436 (2d Cir. 2004). In
such instances, the “facts supporting the defense [must] appear on the face of the complaint,”
and, “as with all Rule 12(b)(6) motions, the motion may be granted only where it appears beyond
doubt that the plaintiff can prove no set of facts in support of his claim that would entitled to him
relief.” Id. (internal quotation marks and citations omitted). That is, a plaintiff “is entitled to all
reasonable inferences from the facts alleged . . . that defeat the immunity defense.” Id.
Because Plaintiff has not yet provided any specific factual allegations regarding the actions
of Defendants Gage, Royce, and Capra, the Court finds that the qualified immunity analysis
would be premature at this juncture. The Court will address the issue of qualified immunity if
and when Plaintiff provides factual allegations detailing each Defendant’s particular actions.

10

CONCLUSION
For the foregoing reasons, Defendants’ motion to dismiss the claims against Gage, Capra,
and Royce is GRANTED.
Plaintiff shall have until July 24, 2018 to amend his Complaint in accordance with this
Court’s decision. If Plaintiff elects to file an amended complaint, Defendant shall have until 21
days from the date of Plaintiff’s filing to move or file responsive pleadings. The Court cautions
Plaintiff, however, that any amended complaint will replace, not supplement, the current
Complaint. That is, Plaintiff must include all claims he wishes to assert in his amended
complaint.
The Court further cautions Plaintiff that given his previous failure to correspond with the
Court or oppose Defendants’ motion, a failure to amend his Complaint by the aforementioned
date will result in the dismissal of this action pursuant to Federal Rule of Civil Procedure 41(b),
for failure to prosecute and failure to comply with a court order.
The Clerk of the Court is respectfully directed to terminate the motion at ECF No. 28.
Further, although Plaintiff has not updated his address with the Court, a review of the New York
State Department of Corrections and Community Supervision online database revealed that
Plaintiff is currently incarcerated at Green Haven Correctional Facility. Accordingly, the Clerk

11

of the Court is directed to mail a copy of this Opinion to Plaintiff at Devaughn Holmes, DIN
05B2079, Green Haven Correctional Facility, 594 Rt. 216, Stormville, New York 12582-0010
and file proof of such mailing on the docket.

Dated:

June 25_, 2018
White Plains, New York

NJl;,!.i>'Q'l~

United States District Judge

12