Rivera v. Connolly et al
Filing
24
OPINION AND ORDER re: 17 MOTION to Dismiss filed by Judge, DeFreese, Connolly, Padgett, Curtin, O'Connor. Defendants' motion to dismiss is GRANTED IN PART and DENIED IN PART. Plaintiff's excessive force clai m against C.O. Judge shall proceed. All other claims are dismissed. By August 20, 2019, C.O. Judge shall answer the amended complaint's surviving claim. The Clerk is directed to (i) terminate the motion (Doc. #17), and (ii) terminate defendant s Connolly, Curtin, Padgett, O'Connor, Hurst, DeFreese, and John Does 14. SO ORDERED. Curtin, DeFreese, Hurst, O'Connor, Padgett, "John Does" 1-4 and Connolly terminated. (Signed by Judge Vincent L. Briccetti on 8/6/2019) (mml)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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HARRY RIVERA,
:
Plaintiff,
:
v.
:
:
SUPERINTENDENT CONNOLLY,
:
SERGEANT (“SGT.”) CURTIN, SGT.
:
PADGETT, CORRECTION OFFICER (“C.O.”) :
O’CONNOR, C.O. HURST, C.O. DEFREESE,
:
C.O. JUDGE, and C.O. JOHN DOE ##1–4,
:
Defendants.
:
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OPINION AND ORDER
18 CV 3958 (VB)
Briccetti, J.:
Plaintiff Harry Rivera, represented by counsel, brings this Section 1983 action against
defendants Superintendent (“Supt.”) Connolly, Sergeant (“Sgt.”) Curtin, Sgt. Padgett, Correction
Officer (“C.O.”) O’Connor, C.O. Hurst, C.O. DeFreese, C.O. Judge, and C.O.s John Doe ##1–4,
alleging violations of his First, Eighth, and Fourteenth Amendment rights at Fishkill Correctional
Facility (“Fishkill”).
Before the Court is defendants’ motion to dismiss the amended complaint pursuant to
Rule 12(b)(6). (Doc. #17).
For the reasons set forth below, the motion is GRANTED IN PART and DENIED IN
PART. Plaintiff’s excessive force claim against C.O. Judge shall proceed. All other claims are
dismissed. 1
The Court has subject matter jurisdiction under 28 U.S.C. § 1331.
1
C.O. Hurst has not appeared in this case. However, the issues concerning Hurst are
substantially similar to the issues concerning C.O. O’Connor, C.O. DeFreese, and Sgt. Curtin,
and plaintiff has had a full opportunity to state his claims against Hurst. Accordingly, the Court
dismisses plaintiff’s claims against Hurst sua sponte. See Hecht v. Commerce Clearing House,
Inc., 897 F.2d 21, 26 n.6 (2d Cir. 1990).
1
BACKGROUND
For the purpose of ruling on the motion to dismiss, the Court accepts as true all wellpleaded factual allegations in the amended complaint 2 and draws all reasonable inferences in
plaintiff’s favor, as summarized below.
Plaintiff was a convicted inmate housed at Fishkill at all relevant times. On April 21,
2015, an inmate allegedly died at Fishkill due to unspecified correction officers’ use of excessive
force. Plaintiff allegedly “claimed,” at an unspecified time and in an unspecified manner, “to
have information regarding the circumstances surrounding” the inmate’s death. (Doc. #16 (“Am.
Compl.”) ¶ 19). Between April 21 and May 6, 2015, plaintiff alleges C.O. O’Connor, C.O.
Hurst, C.O. DeFreese, and Sgt. Curtin subjected plaintiff to unspecified “threats and physical
abuse” in retaliation for plaintiff’s “willingness to speak to investigators.” (Id. ¶ 21).
Around April 22, 2015, plaintiff alleges he reported to Supt. Connolly that O’Connor,
Hurst, DeFreese, and Curtin were threatening and physically abusing plaintiff because he was
willing to cooperate with the death investigation. According to plaintiff, his lawyer then called
Supt. Connolly to request that plaintiff be moved “out of the building in which he was being
held” and into a “safer” location at Fishkill. (Am. Compl. ¶ 24). Plaintiff claims Supt. Connolly
failed to protect plaintiff by ignoring this transfer request, after which O’Connor, Hurst,
DeFreese, and Curtin’s unspecified threats and abuse allegedly continued.
Approximately two weeks later, on May 6, 2015, plaintiff claims an unknown inmate
slashed plaintiff in the face, causing a laceration that required fourteen sutures. After being
slashed, plaintiff immediately went to a nearby bathroom. C.O. Judge allegedly entered the
2
After defendants moved to dismiss the initial complaint, the Court granted plaintiff leave
to file the amended complaint (Doc. #13), which is now the operative complaint in this case.
2
bathroom and “violently knock[ed] [plaintiff] down.” (Am. Compl. ¶ 28). Plaintiff does not
allege C.O. Judge caused plaintiff any injury.
Plaintiff asserts that the unknown inmate assailant acted “at the direction of” O’Connor,
Hurst, DeFreese, or Curtin. (Am. Compl. ¶ 30). Plaintiff claims one or more of those defendants
orchestrated the assault as retaliation for plaintiff’s complaint about them to Supt. Connolly.
After the alleged assault, plaintiff allegedly was transferred to involuntary solitary
confinement. There, plaintiff says he gave to four unknown correction officers, sued here as
John Does, several grievances concerning plaintiff’s alleged interaction with Supt. Connolly, the
alleged inmate assault, and C.O. Judge’s alleged use of excessive force. Plaintiff says the John
Doe defendants were supposed to submit plaintiff’s grievances to Sgt. Padgett; but according to
plaintiff, Sgt. Padgett later said he had “received no grievances from plaintiff and instructed
plaintiff to re-submit” them. (Am. Compl. ¶ 36). Plaintiff alleges he then attempted to re-submit
his grievances without success. He claims the John Doe defendants “intentionally and
maliciously failed to deliver [his] grievances” to Sgt. Padgett, or alternatively, that Sgt. Padgett
received one or more of plaintiff’s grievances but “intentionally and maliciously failed and
refused to process them.” (Am. Compl. ¶ 37–38).
DISCUSSION
I.
Standard of Review
In deciding a Rule 12(b)(6) motion, the Court evaluates the sufficiency of the operative
complaint under the “two-pronged approach” articulated by the Supreme Court in Ashcroft v.
Iqbal, 556 U.S. 662, 679 (2009). 3 First, plaintiff’s legal conclusions and “[t]hreadbare recitals of
3
Unless otherwise indicated, case quotations omit all citations, internal quotation marks,
footnotes, and alterations.
3
the elements of a cause of action, supported by mere conclusory statements,” are not entitled to
the assumption of truth and thus are not sufficient to withstand a motion to dismiss. Id. at 678;
Hayden v. Paterson, 594 F.3d 150, 161 (2d Cir. 2010). Second, “[w]hen there are well-pleaded
factual allegations, a court should assume their veracity and then determine whether they
plausibly give rise to an entitlement to relief.” Ashcroft v. Iqbal, 556 U.S. at 679.
To survive a Rule 12(b)(6) motion, the allegations in the complaint must meet a standard
of “plausibility.” Ashcroft v. Iqbal, 556 U.S. at 678; Bell Atl. Corp. v. Twombly, 550 U.S. 544
(2007). A claim is facially plausible “when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. at 678. “The plausibility standard is not akin to a ‘probability
requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.”
Id.
II.
Retaliation Claims
O’Connor, Hurst, DeFreese, and Curtin argue plaintiff fails to state a First Amendment
retaliation claim against them.
The Court agrees.
To adequately plead a First Amendment retaliation claim, a plaintiff must plausibly
allege (i) he engaged in constitutionally protected speech or conduct; (ii) a defendant took
adverse action against him; and (iii) the protected speech and adverse action are causally
connected. Dolan v. Connolly, 794 F.3d 290, 294 (2d Cir. 2015). “Only 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.” Dawes v. Walker,
239 F.3d 489, 493 (2d Cir. 2001), overruled on other grounds by Swierkiewicz v. Sorema N.A.,
534 U.S. 506, 508 (2002).
4
Courts “approach prisoner retaliation claims with skepticism and particular care, because
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.” Dolan v. Connolly, 794 F.3d at 295. Accordingly, a prisoner
pursuing a retaliation claim must not rest on “wholly conclusory” allegations, but rather must
allege “specific and detailed” supporting facts. Id.
Plaintiff alleges retaliation for (i) his willingness to speak with investigators about the
inmate death at Fishkill, and (ii) his complaint to Supt. Connolly about O’Connor, Hurst,
DeFreese, and Curtin. The Court takes up these claims in turn.
A.
Willingness to Speak with Investigators
Plaintiff fails adequately to plead a claim of retaliation for his willingness to speak with
investigators.
First, plaintiff does not offer any “specific and detailed” allegation that he engaged in
constitutionally protected speech or conduct. Dolan v. Connolly, 794 F.3d at 295. His only
allegations in this regard are that he “claimed to have information” about the inmate death and
“was known by” unspecified “DOCCS personnel . . . to be willing to speak to investigators with
regard to whatever knowledge he had of the circumstances surrounding” it. (Am. Compl. ¶ 20).
But plaintiff does not allege he ever tried to speak with an investigator, or that he communicated
to any prison official that he was willing to do so; nor does plaintiff explain how, when, or to
whom he “claimed to have information.” (Id. ¶ 19). Standing alone, plaintiff’s subjective
willingness to speak with investigators is not constitutionally protected speech. Cf. Edwards v.
Horn, 2012 WL 760172, at *14 (S.D.N.Y. Mar. 8, 2012) (“Hoping to engage in constitutionally
protected activity is not itself constitutionally protected activity.”).
5
Plaintiff also fails adequately to plead a cognizable adverse action. Plaintiff claims
O’Connor, Hurst, DeFreese, and Curtin subjected him to unspecified “threats and physical
abuse.” (Am. Compl. ¶ 21). But the First Amendment does not prohibit every instance of
retaliatory conduct: to support a retaliation claim, a defendant’s alleged conduct must be severe
enough to “deter a similarly situated individual of ordinary firmness from exercising his or her
constitutional rights.” Dawes v. Walker, 239 F.3d at 493. Absent any description of any
defendant’s allegedly retaliatory conduct, the amended complaint fails plausibly to allege this
requirement.
Accordingly, the Court dismisses plaintiff’s claim of retaliation by O’Connor, Hurst,
DeFreese, or Curtin for plaintiff’s willingness to speak with investigators.
B.
Complaint to Supt. Connolly
Plaintiff likewise fails adequately to plead O’Connor, Hurst, DeFreese, or Curtin played
any role in the May 6, 2015, inmate assault. Indeed, the amended complaint offers no factual
allegations whatsoever concerning any defendant’s involvement in that incident; nor does
plaintiff offer any indication that O’Connor, Hurst, DeFreese, or Curtin knew of plaintiff’s
complaint to Supt. Connolly, for which the assault allegedly served as retaliation. Instead,
plaintiff seemingly speculates O’Connor, Hurst, DeFreese, or Curtin orchestrated the assault
because it occurred around two weeks after plaintiff spoke with Supt. Connolly. Under the
circumstances of this case, absent anything more, that temporal proximity falls well short of the
“specific and detailed” facts required adequately to allege that O’Connor, Hurst, DeFreese, or
Curtin retaliated against plaintiff by arranging the stabbing. Dolan v. Connolly, 794 F.3d at 295;
see, e.g., Edwards v. Horn, 2012 WL 760172, at *17–18 (“Apart from any apparent temporal
6
proximity, . . . [prisoner plaintiff’s retaliation] allegations are wholly conclusory and should be
dismissed.”).
The Court therefore dismisses plaintiff’s claim of retaliation by O’Connor, Hurst,
DeFreese, or Curtin for plaintiff’s alleged complaint to Supt. Connolly.
III.
Excessive Force Claim
C.O. Judge argues plaintiff fails to state an Eighth Amendment excessive force claim.
The Court disagrees.
There are two components to a claim of excessive force in violation of
the Eighth Amendment: one objective and one subjective. Wright v. Goord, 554 F.3d 255, 268
(2d Cir. 2009). The objective component focuses on the harm done in light of “contemporary
standards of decency.” Id. An inmate must plausibly allege the defendant’s “wrongdoing was
objectively harmful enough to establish a constitutional violation.” Id. “But when prison
officials use force to cause harm maliciously and sadistically, contemporary standards of
decency always are violated. This is true whether or not significant injury is evident.” Id. at
268–69. “Although not every push or shove, even if it may later seem unnecessary in the peace
of a judge’s chambers, violates a prisoner’s constitutional rights, a showing of extreme injury is
not required to bring an excessive force claim if the alleged conduct involved unnecessary and
wanton infliction of pain.” Toliver v. N.Y.C. Dep’t of Corr., 202 F. Supp. 3d 328, 334–35
(S.D.N.Y. July 29, 2016).
As for the subjective component, an inmate must adequately plead the defendant “had the
necessary level of culpability, shown by actions characterized by wantonness in light of the
particular circumstances surrounding the challenged conduct.” Wright v. Goord, 554 F.3d at
268. “The test of whether use of force in prison constitutes excessive force contrary to the
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Eighth Amendment is whether the force was used in a good-faith effort to maintain or restore
discipline, or maliciously and sadistically to cause harm.” Scott v. Coughlin, 344 F.3d 282, 291
(2d Cir. 2003). Factors salient to this inquiry include “the extent of the injury and the mental
state of the defendant, as well as the need for the application of force; the correlation between
that need and the amount of force used; the threat reasonably perceived by the defendants; and
any efforts made by the defendants to temper the severity of a forceful response.” Id.
Plaintiff sufficiently alleges C.O. Judge maliciously or wantonly caused plaintiff physical
harm. Viewing plaintiff’s allegations in the light most favorable to him, it is plausible that Judge
saw plaintiff in the bathroom with a visible and serious wound, and knocked plaintiff to the
ground unnecessarily and without legitimate reason. At this early stage of the case, the Court
therefore cannot conclude as a matter of law that Judge used force against plaintiff “in a goodfaith effort to maintain or restore discipline.” Scott v. Coughlin, 344 F.3d at 291.
Accordingly, plaintiff’s excessive force claim against C.O. Judge shall proceed.
IV.
Failure-to-Protect Claim
Defendant Connolly argues plaintiff fails to state a failure-to-protect claim.
The Court agrees.
The Eighth Amendment requires that prison officials take reasonable measures to ensure
inmates’ safety. Farmer v. Brennan, 511 U.S. 825, 833–34 (1994). A failure-to-protect claim
thus arises when prison officials act “with deliberate indifference to the safety of the inmate.”
Hayes v. New York City Dep’t of Corr., 84 F.3d 614, 620 (2d Cir. 1996). When brought by a
convicted prisoner, such a claim is analyzed under the Eighth Amendment, see Darnell v.
Pineiro, 849 F.3d 17, 29 (2d Cir. 2017), and must satisfy two prongs: an objective prong and a
mens rea prong.
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To adequately plead the objective prong, a plaintiff must plausibly allege a prison official
exposed the plaintiff to conditions that “pose an unreasonable risk of serious damage to his
future health.” Helling v. McKinney, 509 U.S. 25, 35 (1993). In this context, “[t]here is no
static test to determine whether a deprivation is sufficiently serious; instead, the [prison]
conditions themselves must be evaluated in light of contemporary standards of decency.”
Darnell v. Pineiro, 849 F.3d at 30.
To adequately plead the mens rea prong, a plaintiff must plausibly allege the defendant
“ha[d] knowledge that an inmate face[d] a substantial risk of serious harm,” yet “disregard[ed]
that risk by failing to take reasonable measures to abate” it. Hayes v. N.Y.C. Dep’t of Corr., 84
F.3d at 620. The defendant officer “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.”
Cuoco v. Moritsugu, 222 F.3d 99, 107 (2d Cir. 2000).
“[A]n inmate’s communications about generalized safety concerns or vague concerns of
future assault by unknown individuals are insufficient to provide knowledge that the inmate is
subject to a substantial risk of serious harm.” Anselmo v. Kirkpatrick, 2019 WL 2137469, at *4
(N.D.N.Y. May 16, 2019) (collecting cases). Rather, an Eighth Amendment failure-to-protect
claim lies when the plaintiff “alleges that he informed corrections officers about a specific fear of
assault and [was] then assaulted.” Tubbs v. Venettozzi, 2019 WL 2610942, at *5 (N.D.N.Y.
June 26, 2019).
Here, plaintiff does not adequately plead the subjective prong. He and his attorney
allegedly told Supt. Connolly about O’Connor, Hurst, DeFreese, and Curtin’s alleged threats and
physical abuse before the May 6, 2015, assault occurred. But the amended complaint does not
allege anyone warned Supt. Connolly that another inmate posed a substantial risk of serious
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harm to plaintiff’s safety, nor does it contain any factual allegation suggesting Supt. Connolly
otherwise knew or learned of such a risk.
Plaintiff having offered no plausible allegation that Supt. Connolly subjectively
perceived, but disregarded, a serious risk to plaintiff of an inmate attack, plaintiff’s failure-toprotect claim must be dismissed.
V.
Violations of Prison Grievance Procedure
The John Doe defendants and Sgt. Padgett argue they did not violate plaintiff’s
constitutional rights by allegedly ignoring plaintiff’s grievances, because the Constitution does
not guarantee access to a prison grievance system.
The Court agrees.
“[I]nmate grievance procedures are not required by the Constitution and therefore a
violation of such procedures does not give rise to a claim under § 1983.” Cancel v. Goord, 2001
WL 303713, at *3 (S.D.N.Y. Mar. 29, 2001). “Indeed, any claim that plaintiff[] [was] deprived
of [his] right to petition the government for redress is belied by the fact of [his] bringing this
lawsuit.” Alvarado v. Westchester County, 22 F. Supp. 3d 208, 214 (S.D.N.Y. 2014).
Thus, the Court dismisses plaintiff’s claim arising from any defendant’s alleged refusal to
accept plaintiff’s grievances.
VI.
Conspiracy Claim
Lastly, plaintiff fails adequately to plead a claim of conspiracy.
“To prove a § 1983 conspiracy, a plaintiff must show: (1) an agreement between two or
more state actors or between a state actor and a private entity; (2) to act in concert to inflict an
unconstitutional injury; and (3) an overt act done in furtherance of that goal causing damages.”
Pangburn v. Culbertson, 200 F.3d 65, 72 (2d Cir. 1999).
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First, plaintiff plainly does not plausibly allege C.O. Judge conspired with another to use
excessive force against plaintiff in the bathroom at Fishkill. Only one substantive sentence of the
amended complaint mentions Judge. (See Am. Compl. ¶ 28). That sentence portrays Judge as
having acted alone when he allegedly knocked plaintiff to the ground. The amended complaint
does not allege Judge entered into any agreement with any other defendant, or that Judge had any
knowledge of or involvement in plaintiff’s alleged interactions with any other defendant.
Second, because plaintiff has not adequately pleaded any other underlying violation of
his constitutional rights, his conspiracy claim against all other defendants necessarily fails as a
matter of law. See, e.g., Singer v. Fulton Cty. Sheriff, 63 F.3d 110, 119 (2d Cir. 1995) (“[A]
plaintiff alleging a § 1983 conspiracy claim must [allege] an actual violation of constitutional
rights.”).
For these reasons, plaintiff’s conspiracy claim must be dismissed.
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CONCLUSION
Defendants’ motion to dismiss is GRANTED IN PART and DENIED IN PART.
Plaintiff’s excessive force claim against C.O. Judge shall proceed. All other claims are
dismissed.
By August 20, 2019, C.O. Judge shall answer the amended complaint’s surviving claim.
The Clerk is directed to (i) terminate the motion (Doc. #17), and (ii) terminate defendants
Connolly, Curtin, Padgett, O’Connor, Hurst, DeFreese, and John Does 1–4.
Dated: August 6, 2019
White Plains, NY
SO ORDERED:
____________________________
Vincent L. Briccetti
United States District Judge
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