Harrison v. Trailor et al

Filing 30

OPINION & ORDER: re: 24 MOTION to Dismiss filed by Johnson, Radway, Plummer, Turman, Lesley Malin, Trailor, Claudio, Michael Capra, Rathengaber, Jeff McKoy, Marchese. Accordingly, Defendants' Motion to Dismiss is GRANTED without prejudice. T he Clerk of the Court is respectfully requested to terminate ECF No. 24. The Court will allow Plaintiff thirty days (30) to Amend his Complaint if he so desires. If no amendment is made by February 7, 2019, the Complaint will be dismissed with prejudice and the action terminated without further notice. SO ORDERED., ( Amended Pleadings due by 2/7/2019.) (Signed by Judge Nelson Stephen Roman on 1/07/2019) (ama)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

I

TONY HARRISON,
Plaintiff,

No. 17-CV-6678 (NSR)
-againstOPINION & ORDER

C.O. TRAILOR, et al.,
Defendants.
NELSON S. ROMAN, United States District Judge
Plaintiff Tony Harrison ("Plaintiff'), an inmate in the New York State Department of
Corrections and Community Supervision, ("DOCCS"), brings this action pursuant to 42 U.S.C.
§ 1983 against Defendants: C.O. Traylor, C.O. Rathengaber, C.O. Radway, C.O. Turman, Sgt.
Johnson, Sgt. Plummer, Sgt. Claudio, Olga Marchese -Education Supervisor General, Lesley Malin
- Deputy Superintendent of Programs, Jeff McKay - Deputy Commissioner for Programs, and
Superintendent Michael Capra, all of whom are employees of DOCCS, (collectively,
"Defendants"). (See Complaint, ("Compl."), ECF No. 2.) Defendants move to dismiss the
Complaint pursuant to Federal Rule of Civil Procedure Rule 12(b)(6).
For the following reasons, Defendants motion is GRANTED.
BACKGROUND

The conduct central to this case occurred while Plaintiff was an inmate at Sing Sing
Correctional Facility ("Sing Sing"). 1 (See Compl.

,r 16.)

Plaintiff alleges that in January, 2014,

C.O. Trailor "deliberately labeled plaintiff. .. on the Sing Sing's ALPHA CELL BOOK movement
and control sheet" causing Plaintiff to become a target to correctional officers and inmates that had

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Plaintiff now resides at Attica Correctional Facility.

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access to this ALPHA CELL BOOK Movement and control sheets. (Id.) Plaintiff alleges that this
labeling precipitated much unlawful conduct, namely: 1) it prevented him from getting a position
as a law library porter and 2) it made him a target for a physical attack by other inmates.

A.

Restricting Plaintiff's Movement and Job Prospects

First, Plaintiff claims that six months after he was labelled in the cell book, his "cell
movement had been constantly curtailed so much that on June 3, 2014 C.O. Rathengaber went into
plaintiff inmate's file and ... conspired with Sgt. Johnson and the Educational Supervisor Ms.
Marchese, [to] have plaintiff unjustly restricted from his assigned school porter job." (Id. ,i 17.)
Plaintiff claims that he immediately filed grievances, all of which were to no avail, and that
subsequently, C.O. Rathengaber retaliated against Plaintiff by gossiping with other correctional
officers and inmates and turning Plaintiff into "a target." (Id. ,i 17.) Plaintiff then asserts that C.O.
Radway and C.O. Turman went to Sgt. Claudio to ensure that Plaintiff was restricted from working
as the law library porter, which he was otherwise poised and qualified to do. (Id. ,i 19.) Plaintiff
claims that Sgt. Claudio yelled at him, calling him "a sexual predator" and made it clear that the
library was "getting rid of all sex offenders ... starting with [Plaintiff.]" (Id. ,i 20.)
On February 22, 2015, Plaintiff claims that he again filed grievances and a complaint to
Ms. Lesley Malin, the Deputy Superintendent of Programs, as well as with Superintendent Michael
Capra and to the Deputy Commissioner ofDOCCS, all of which again were to no avail. (Id. ,i 21.)
After these complaints, Plaintiff claims that Sgt. Claudo retaliated against Plaintiff by removing
him from another assigned job. (Id.) Plaintiff further alleges that in one form or another, he
continued to be told by various officers that he could no longer work as a law library porter in the
school building due to his status as a sex offender, as the organization was "getting rid of all sex
offenders" in Sing Sing's school building. (Id. ,i,i 22-24.)

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B.

Deliberate Indifference in Making Plaintiff a Target for Attack

Plaintiff next claims that after filing several grievances and complaints against various
officers for their supposedly retaliatory conduct against him, he became the "target of a severe
assault" in his cell. (Id.

,r 25.) Specifically, Plaintiff claims that on July 19, 2015, he was severely

hit on the left side of his skull with an unknown object by an unknown inmate, which left him
unconscious and resulted in his having a skull fracture that required surgery. (Id.

,r,r 26-27.) He

claims that various officers are liable for this attack as they were deliberately indifferent to the
heightened risk of his being attacked once they labelled Plaintiff in the cell book.

LEGAL STANDARD
A.

Motion to Dismiss

On a motion to dismiss under Fed. R. Civ. P. 12(b)(6), dismissal is proper unless the
complaint "contain[s] sufficient factual matter, accepted as true, to 'state a claim to relief that is
plausible on its face."' Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell At!. Corp. v.

Twombly, 550 U.S. 544, 570 (2007)). When there are well-pleaded factual allegations in the
complaint, "a court should assume their veracity and then determine whether they plausibly give
rise to an entitlement to relief." Id. at 679. "Although for the purposes of a motion to dismiss [a
court] must take all of the factual allegations in the complaint as true, [it is] 'not bound to accept
as true a legal conclusion couched as a factual allegation."' Id. (quoting Twombly, 550 U.S. at
555). It is not necessary for the complaint to assert "detailed factual allegations," but must allege
"more than labels and conclusions." Twombly, 550 U.S at 555. The facts in the complaint "must
be enough to raise a right to relief above the speculative level on the assumption that all the
allegations in the complaint are true." Id.

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"Pro se complaints are held to less stringent standards than those drafted by lawyers, even
following Twombly and Iqbal." Thomas v. Westchester, No. 12-CV-6718 (CS), 2013 WL
3357171 (S.D.N.Y. July 3, 2013). The court should read prose complaints "'to raise the strongest
arguments that they suggest,"' Kevilly v. New York, 410 F. App'x 371, 374 (2d Cir. 2010)
(summary order) (quoting Brownell v. Krom, 446 F.3d 305, 310 (2d Cir. 2006)); see also Harris

v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) ("even after Twombly, though, we remain obligated to
construe a pro se complaint liberally."). "However, even pro se plaintiffs asserting civil rights
claims cannot withstand a motion to dismiss unless their pleadings contain factual allegations
sufficient to raise a right to relief above the speculative level." Jackson v. N YS. Dep 't of Labor,
709 F. Supp. 2d 218,224 (S.D.N.Y. 2010) (quoting Twombly, 550 U.S. at 555) (internal quotation
marks omitted).

Dismissal is justified, therefore, where "the complaint lacks an allegation

regarding an element necessary to obtain relief," and therefore, the "duty to liberally construe a
plaintiffs complaint [is not] the equivalent of a duty to re-write it." Geldzahler v. New York

Medical College, 663 F. Supp. 2d 379,387 (S.D.N.Y. 2009) (internal citations omitted).
B.

Section 1983

"To recover under s 1983 petitioner must prove two separate and independent elements:
first, that respondent subjected her to the deprivation of a right 'secured by the Constitution and
laws'; and, second, that while doing so respondent acted under color of a statute, ordinance,
regulation, custom, or usage of the [state]." Adickes v. S.H Kress & Co, 298 U.S. 144, 188-89
(1970).

C.

Retaliation Under the First Amendment

A plaintiff asserting a retaliation claim has the burden of demonstrating: "(1) that the
speech or conduct at issue was protected, (2) that the defendant took adverse action against the

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plaintiff, and (3) that there was a causal connection between the protected speech and the adverse
action. 11 Scott v. Coughlin, 344 F.3d 282, 287 (2d Cir. 2003). Conclusory allegations or denials are
ordinarily not sufficient to defeat a motion for summary judgment when the moving party has set
out a documentary case. Id. Rather, "[o]nly retaliatory conduct that would deter a similarly situated
individual of ordinary firmness from exercising his or her constitutional rights constitutes an
adverse action for a claim of retaliation ... Otherwise the retaliatory act is simply de minimis and
therefore outside the ambit of constitutional protection." Dawes v. Walker, 239 F.3d 489,493 (2d
Cir. 2001 ), overruled on other grounds, Swierkewicz v. Sorema., 534 U.S. 506 (2002) (citations
omitted).
"Prisoners may be required to tolerate more than public employees, who may be required
to tolerate more than average citizens, before a[ retaliatory] action taken against them is considered
adverse." Id. In addition, the "casual connection" element requires plaintiffs to prove that an
adverse action relates to protected First Amendment activity-that is, the plaintiff must present
evidence from which a jury could conclude that the plaintiffs protected First Amendment activity
was "a substantial or motivating factor" in the prison official's adverse action against the plaintiff.
Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996). "To survive a motion to dismiss, such claims

must be "supported by specific and detailed factual allegations," not stated "in wholly conclusory
terms."" Friedl v. City of New York, 210 F.3d 79, 85-86 (2d Cir. 2000) (quoting Flaherty v.
Coughlin, 713 F.2d 10, 13 (2d Cir. 1983)).

The Second Circuit has repeatedly held that a court must assess a claim of retaliation
with "skepticism and particular care" because such claims are "easily fabricated" by inmates.
Dawes, 23 9 F .3d at491. Such claims create a" substantial risk of unwaiTanted judicial intrusion

into matters of general prison administration" because:

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virtually any adverse action taken against a prisoner by a prison official - even
those otherwise not rising to the level of a constitutional violation - can be
characterized as a constitutionally proscribed retaliatory act .... Given that such
adversity is an ever-present concomitant of prison life, the opportunities to
characterize its manifestations as actionable retaliation are far greater than that
for society at large.

Id. (internal citations and quotations omitted).
D.

Deliberate Indifference Under Eight Amendment

Deliberate indifference under the Eighth Amendment is evaluated under a two-pronged test
comprised of both objective and subjective components. See Darnell v. Pineiro, 849 F.3d 17, 3235 (2d Cir. 2017); Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011). "[T]o establish an objective
deprivation, 'the inmate must show that the conditions, either alone or in combination, pose an
unreasonable risk of serious damage to his health,' which includes the risk of serious damage to
'physical and mental soundness."' Darnell, 849 F.3d at 30 (citations omitted). To meet the
objective prong, a plaintiff must assert that the alleged medical need is a "sufficiently serious"
condition that "could result in further significant injury or the unnecessary and wanton infliction
of pain." Harrison v. Barkley, 219 F.3d 132, 136 (2d Cir. 2000) (quoting Chance v. Armstrong, 143
F.3d698, 702 (2d Cir. 1998)); see also Hathaway v. Coughlin, 37 F.3d63, 66 (2d Cir. 1994) (noting
that standard contemplates "a condition of urgency, one that may produce death, degeneration, or
extreme pain").
The subjective component requires a prisoner to show that the defendant officials acted
with a "sufficiently culpable state of mind" in depriving him of adequate medical treatment.
Nielsen v. Rabin, 746 F.3d 58, 63 (2d Cir. 2014) (citing Salahuddin v. Goard, 467 F.3d 263, 280

(2d Cir. 2006)). "That is, the official must 'know of and disregard an excessive risk to inmate
health or safety; the official must both be aware of facts from which the inference could be drawn

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that a substantial risk of serious harm exists, and he must also draw the inference." Hill, 657 F.3d
at 122 (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994) (internal alterations omitted)).

DISCUSSION
Reading the Complaint liberally, as the Court is required to do, the only possible causes of
action that are alleged are: (1) retaliation under the First Amendment for Plaintiffs filing of
grievances and (2) deliberate indifference under the Eight Amendment for failure to protect
Plaintiff from being attacked/assaulted.
For the following reasons, Plaintiffs Complaint fails to state a claim under both.

a. Retaliation under the First Amendment
Defendants are correct that inmates do not have any constitutional, statutory, or regulatory
right to any prisonjob. Gill v. Mooney, 824 F.2d 192, 194 (2d Cir.1987) ("New York law does not
give a prisoner 'any statutory, regulatory or precedential right to his prison job."'). Yet what is
fatal to Plaintiffs retaliation claim is Plaintiffs failure to allege any connection-let alone a causal
one-between his filing of grievances and complaints and his being denied the porter position.
Prisoners certainly engage in protected activity when they file grievances and complaints
about their prison conditions. Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995) ("Prisoners, like
non-prisoners, have a constitutional right of access to the courts and to petition the government for
the redress of grievances, and prison officials may not retaliate against prisoners for the exercise
of that right.") Therefore, even if they are not entitled to any job in the prison system, they are
entitled to make complaints about their beliefs of unlawful conduct, and that too, without fear of
repercussions. Thus, there can be a cognizable claim of retaliation when a prisoner is denied an
opportunity to which he was not necessary entitled, but which would deter similarly situated
prisoners from exercising their protected federal rights. Dawes, 239 F.3d at 493 ("retaliatory

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conduct that would deter a similarly situated individual of ordinary firmness from exercising his
or her constitutional rights constitutes an adverse action for a claim of retaliation").
The issue here is not whether Plaintiff was entitled to the library porter job. Rather, it is
whether Plaintiff sufficiently alleged that he was only denied that job because of making his
protected complaints, such that similarly situated individuals would be deterred from making
similar complaints in the first place. In that vein, the fatal problem here is that Plaintiff repeatedly
alleges that he was denied the law library porter job that he was otherwise assigned to because he

was a known sex offender, not because he engaged in protected activity (i.e. filed
grievances/complaints). (See Compl. ,i 19 ("This is when on Sgt. Claudio yelled out in the school
building, at plaintiff, 'that you are not allowed in my school building[] while I am the school
building Sargeant; and you know why,' ... calling Plaintiff a sexual predator ... and this same Sgt
Claudio actually told Plaintiff, 'we are getting rid of all sex offenders in Sing Sing's school
building and we are starting with you."); Compl. ,i 22 ("Then both of the said to the Plaintiff. .. that
we made a mistake and that's to[ o] bad, because we are now getting rid of all sex offenders[] who
has a job in Sing Sing's school building, and the law library porter job is in the school building.");
Compl. ,i 24 ("you and the rest of the sex offenders slip through the cracks, so now me and the
School building sergeant Claudio are getting rid of all the sex offenders out of Sing Sing's school
building; and we are both going to make sure no sex offender slip through the cracks no more.").)
While Plaintiff's complaint alleges facts that could arguably provide circumstantial
evidence that -

based on timing -

there was a connection between his filing of

grievances/complaints and not receiving the porter position, such circumstantial facts are
insufficient to allege that the protected activities were "substantial or motivating factor" in the
prison officials' actions against the plaintiff. See Graham v. Henderson, 89 F.3d at 79; Friedl, 210

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F.3d at 85-86 ("To survive a motion to dismiss, such claims must be "supported by specific and
detailed factual allegations," not stated "in wholly conclusory terms.") (quoting Flaherty, 713 F.2d
at 13). Because it is not even clear from the Complaint that the decision not to give Plaintiff the
porter position was close in time and immediately after his filing grievances, at this stage, the
Complaint is deficient in making out a First Amendment retaliation claim.
Finally, although Plaintiff adduces additional facts that make the causal connection
between his engaging in protected activities and experiencing retaliation more explicit in his
Opposition to the Defendants' Motion to Dismiss, (ECF No. 29), the Court is confined to the facts
alleged in his Complaint for the purposes of considering a motion to dismiss under 12(b)(6). See
Cartee Indus. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991).

Accordingly, the Court dismisses Plaintiffs Complaint, but without prejudice. Should
Plaintiff seek to file an amended complaint with sufficiently detailed facts, he retains the
opportunity to do so.
b. Failure to Protect Under the Eighth Amendment

The crux of Plaintiffs Eight Amendment claim is that Defendants were deliberately
indifferent to Plaintiffs risk of harm because they disclosed his underlying criminal conviction,
thereby making him a target for violence, and then failed to protect him from the assault. (See
Compl. ifif 16, 25-27.) This Court disagrees.
Again, to make out any Eighth Amendment claim, a Plaintiff must "satisfy a two-prong
test with both objective and subjective components." Banks v. William, No. l 1-CV8667(GBD)(JLC), 2012 WL 4761502, at *3 (S.D.N.Y. Sept. 27, 2012), report and
recommendation adopted by 2013 WL 764768 (Feb. 28, 2013). Because the Eighth Amendment

"requires prison officials to take reasonable measures to guarantee the safety of inmates in their

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custody[,]" Hayes v. New York City Dep't of Corr., 84 F.3d 614,620 (2d Cir. 1996), for a failure to
protect claim to survive, a plaintiff must allege that, objectively, the conditions of his incarceration
posed a "substantial risk of serious harm" and, subjectively, the defendants acted with deliberate
indifference in failing to protect the inmate from such harm. Farmer, 511 U.S. at 834.
Here, Plaintiff fails to allege that he was at higher risk of serious harm because he was
listed in the alpha cell log. Rather, all that Plaintiff states is that "during the process of these
grievances and complaints, [he] was a target of a[] severe assault in the targeted Sing Sing's HBA
cell (A-H-66) (that Plaintiff complained about being a target in a labeled on Sing Sing's alpha cell
movement and control sheet)" (Compl.

,r 25.) Arguably, Plaintiff is again trying to draw a causal

connection between the timing of when he filed certain grievances and when he was attacked. For
the same reasons as with his First Amendment retaliation claim, not only are such loose assertions
insufficient to draw any causal connection for retaliation purposes, but as far as the required prongs
for deliberate indifference, Plaintiffs assertions fail to allege that: 1) objectively, his being listed
in the cell log and filing of grievances substantially increased his risk of harm from what it would
have otherwise been and 2) Defendants subjectively knew about this increased risk of harm and
then deliberately and willfully disregarded it, leading to Plaintiffs injuries.
In addition, as Defendants correctly note, courts in the Southern District of New York tend
to require that prison officials had tangible notice-that is, actual knowledge about a prior
altercation between the plaintiff and his attacker or about threats that had been made against_ the
plaintiff, before they can be deemed deliberately indifferent and to subsequent inmate-on-inmate
violence. See Thomas v. DeMeo, 2017 WL 3726759, at *8 (S.D.N.Y. Aug. 28, 2017) ("In general,
to satisfy the requirements of an Eighth Amendment failure to protect claim, a 'plaintiff must
allege that the defendants knew of a prior altercation between the plaintiff and his attacker, or of

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threats that had been made against the plaintiff.' In the absence of such allegations, prison officials
are not liable for any harm caused by inmate-on-inmate violence.") (internal citation omitted);

Parris v. NY State Dep't Corr. Servs., 947 F.Supp.2d 354,363 (S.D.N.Y. 2013) ("Such culpability
exists when an official 'has knowledge that an inmate faces a substantial risk of serious harm and
he disregards that risk by failing to take reasonable measures to abate the harm." Hayes, 84 F.3d
at 620. The plaintiff 'must allege actions or omissions sufficient to demonstrate deliberate
indifference; mere negligence will not suffice."') (internal citations omitted). In Fernandez v.

NYC. Dep't of Corr., 2010 WL 1222017, at *4 (S.D.N.Y. Mar. 29, 2010), the Court explained
the types of facts that the plaintiff needed to plead:
Plaintiffs complaint fails to state facts from which a court can reasonably infer that
any officer at DOC had knowledge of a risk to Plaintiff, and disregarded that risk
by failing to take reasonable measures to protect Plaintiffs safety. Plaintiff has not
pled, for example, that he and inmate Simmons were involved in a prior altercation,
that Simmons had previously threatened him, or that there was any other reason for
officers at DOC to be on notice that there was a risk of altercation between Plaintiff
and inmate Simmons. Absent clear notice of a risk of harm to the prisoner, "[ c]ourts
routinely deny deliberate indifference claims based upon surprise attacks."
And indeed, in Coronado v. Goard, No. 99 Civ. 167, 2000 WL 1372834, at *6 (S.D.N.Y. Sept.
25, 2000), the Court went so forth as to require:
(1) there were numerous other inmate-on-inmate attacks in the GHCF yard; (2)
these attacks posed a substantial risk of serious harm to inmates; (3) the Defendants
knew about these prior attacks; (3) despite their knowledge of the prior attacks,
Defendants failed to take steps to reduce the risk of harm to inmates; (4) the prior
attacks and the stabbing of [the plaintiff] were similar enough that any steps
Defendants could have taken to alleviate the danger posed by the other attacks
would also have reduced the risk to [the plaintiff]; and (5) if Defendant had taken
such steps, [the plaintiff] would not have been stabbed in the yard on June 30, 1997.
Here, Plaintiffs Complaint has no facts about a prior history of violence between
Plaintiffs attacker and himself (in fact, Plaintiff purportedly does not know who the attacker is,
suggesting that this may have been the first incident of this type). See Ayers v. Coughlin, 780

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F.2d 205,209 (2d Cir. 1985) ('"'An isolated omission to act by a state prison guard does not
support a claim under section 1983 absent special circumstances indicating evil intent,
recklessness, or at least deliberate indifference to the consequences of his conduct for those
under his control and dependent on him."). Moreover, Plaintiff does not allege that he made any
prior complaints about being subject to violence or threatened about an attack. As such, Plaintiffs
scant assertions fail to meet the pleading standards of Rule 12(b)(6) and fail to make out a prima
facie claim for failure to protect under the Eighth Amendment.
Accordingly, Plaintiffs Eight Amendment Claim is also dismissed without prejudice. 2
c. Personal Involvement & Qualified Immunity

Because the Court has not found a single cognizable constitutional claim in Plaintiffs
Complaint, it need not address whether Plaintiff has sufficiently pleaded that the Officers were
personally involved in any such violations or whether they would be subject to qualified immunity.
As such, the Court leaves these issues open to be addressed at a later point in time.
d. Leave to Amend

"' [A] pro se complaint is to be read liberally,' and should not be dismissed without granting
leave to rep lead at least once when such a reading 'gives any indication that a valid claim might
be stated."' Barnes v. US., 204 Fed. App'x 918,919 (2d Cir. 2006) (quoting Gomez v. USAA Fed.
Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999)). Taking Plaintiffs prose status into consideration,
the Court will permit Plaintiff an opportunity to amend his Complaint to state a valid claim.

2

Although Plaintiff also complains about supposed taunts and verbal harassment that he was subject to in Sing Sing
due to the widespread knowledge of him being sex offender, such allegations could not color an Eighth Amendment
violation as a matter of law. Aziz Zarif Shabazz v. Pico, 994 F.Supp. 460,474 (S.D.N.Y. 1998) ("Verbal harassment
or profanity alone, unaccompanied by any injury no matter how inappropriate, unprofessional, or reprehensible it
might seem, does not constitute the violation of any federally protected right and therefore is not actionable under 42
U.S.C. § 1983."). As such they are dismissed with prejudice.

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CONCLUSION
Accordingly, Defendants' Motion to Dismiss is GRANTED without prejudice. The Clerk
of the Court is respectfully requested to te1minate ECF No. 24. The Court will allow Plaintiff thirty
days (30) to Amend his Complaint ifhe so desires. Ifno amendment is made by February 7, 2019,
the Complaint will be dismissed with prejudice and the action terminated without further notice.

Dated: January 7, 2019
White Plains, New York

SO ORDERED:

United States District Judge

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