Lamar v. Kisrel et al

Filing 21

ORDER granting 16 Motion for Judgment on the Pleadings as to defendant Unger. A status conference shall take place on November 29, 2011 at 2:30 p.m. before the undersigned. Signed by Hon. Hugh B. Scott on 9/23/2011. (JRA)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_________________________________________
Gary Lamar,
Plaintiff,

Hon. Hugh B. Scott

10CV761
v.
Decision &
Order
Officer C. Kisrel, et al.
Defendants
_________________________________________

Before the Court is the defendant David Unger’s motion to dismiss (Docket No. 16).1

Background
The plaintiff, Gary Lamar (“Lamar”), commenced this action alleging a violation of his
civil rights pursuant to 42 U.S.C. § 1983. More specifically, Lamar states that he was assaulted
by defendant Correctional Officer C. Kisrel (“Kisrel”) while incarcerated at the Wyoming
Correctional Facility (“Wyoming”) on June 11, 2010. (Docket No. at page 7). Lamar also asserts
a claim against defendant Superintendent David Unger (“Unger”) based upon the general
assertion that Unger “permitted an environment of tolerance for excessive force” by correction

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The parties have consented to the jurisdiction of the Magistrate Judge pursuant to 28
U.S.C. §636. (Docket No. 13).
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officers at Wyoming. (Docket No. 1 at page 9).
Defendant Unger moves to dismiss the claim against him on the ground that the plaintiff
has failed to state a claim against Unger. (Docket No. 17 at page 2). The instant motion does not
relate to defendant Kisrel.

Standard of Review
The Supreme Court has clarified the pleading standard required to withstand a motion to
dismiss. “[O]nly a complaint that states a plausible claim for relief survives a motion to dismiss.
Determining whether a complaint states a plausible claim for relief will ... be a context-specific
task that requires the reviewing court to draw on its judicial experience and common sense.”
Ashcroft v. Iqbal, --- U.S. ----, ----, 129 S.Ct. 1937, 1950 (2009) (internal citation omitted).
“While legal conclusions can provide the framework of a complaint, they must be supported by
factual allegations. When 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.” Id.; see
also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 565-66 (2007). Under Iqbal, factual allegations
must be sufficient to support necessary legal conclusions. Iqbal, 129 S.Ct. at 1950-51. “A court
‘can choose to begin by identifying pleadings that, because they are no more than conclusions,
are not entitled to the assumption of truth.’” Hayden v. Paterson, 594 F.3d 150, 161 (2d
Cir.2010) ( quoting Iqbal, 129 S.Ct. at 1950). The Court must then consider the factual
allegations in the complaint to determine if they plausibly suggest an entitlement to relief. Iqbal,
129 S.Ct. at 1951; see also Harris v. Mills, 572 F.3d 66, 72 (2d Cir.2009).

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Personal Involvement
The defendants contend that the plaintiff has not, and cannot, establish that Unger was
personally involved in the alleged June 11, 2010 incident. Further, defendants argue that the
plaintiff cannot maintain a claim against Unger based solely upon Unger’s supervisory role.
(Docket No. 17 at page 3).
It is well-settled that "personal involvement of defendants in alleged constitutional
deprivations is a prerequisite to an award of damages under § 1983." Wright v. Smith, 21 F.3d
496, 501 (2d Cir.1994). Plaintiff must allege a "tangible connection between the acts of a
defendant and the injuries suffered." Bass v. Jackson, 790 F.2d 260, 263 (2d Cir.1986). The
doctrine of respondeat superior is not applicable to § 1983 actions brought against prison
officials. Monell v. Dep't of Social Serv. of New York, 436 U.S. 658, 692 (1978); Bass, 790
F.2d at 263. Thus, the mere fact that a defendant may have been in a "high position of authority is
an insufficient basis for the imposition of personal liability" under § 1983. McKinnon v.
Patterson, 568 F.2d 930, 934 (2d Cir.1977); see also Wright, 21 F.3d at 501. There are a number
of ways in which a defendant in a supervisory position may be found personally involved in, and
therefore liable for, constitutional violations, including: (1) direct participation, (2) failure to
remedy a wrong after learning of it, (3) creation or tolerance of a policy under which
unconstitutional practices occurred or were allowed to continue, or (4) gross negligence in
managing subordinates who committed the violations. Wright, 21 F.3d at 501 (citations omitted);
Doyle v. Coombe, 976 F.Supp. 183, 191-192 (W.D.N.Y.1997), aff'd 159 F.3d 1346, 1998 WL
537066 (2d Cir.1998); Shell v. Brzezniak, 365 F.Supp.2d 362 (2005), 373 -374
(W.D.N.Y.,2005). The Supreme Court has held that a municipality will be liable for inadequate
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training or supervision of its employees "only where the failure to train amounts to deliberate
indifference to the rights" of those with whom municipal employees will come into contact. City
of Canton v. Harris, 489 U.S. 378, 388 (1989). The Second Circuit set forth the following
three-part test for determining whether a municipality's failure to train or supervise rises to the
level of deliberate indifference: First, the plaintiff must show that a policymaker knows "to a
moral certainty" that her employees will confront a given situation.... Thus, a policymaker does
not exhibit deliberate indifference by failing to train employees for rare or unforeseen events.
Second, the plaintiff must show that the situation either presents the employee with a difficult
choice of the sort that training or supervision will make less difficult or that there is a history of
employees mishandling the situation.... [Third,] the plaintiff must show that the wrong choice by
the city employee will frequently cause the deprivation of a citizen's constitutional rights. Walker
v. City of New York, 974 F.2d 293, 297 (2d Cir.1992) (citations omitted). However, to defeat a
motion for summary judgment on a § 1983 claim, a plaintiff must do more than "simpl[y] recit[e]
... a failure to train municipal employees." Dwares v. City of New York, 985 F.2d 94, 100 (2d
Cir.1993). A plaintiff must produce "some evidence that policymakers were aware of a pattern of
[unconstitutional conduct] but failed to [respond]." Walker, 974 F.2d at 300.
In the instant case, the plaintiff’s complaint does not reflect any knowledge on the part of
Unger relating to any specific danger to Lamar prior to the alleged incident on June 11, 2010.
Although Lamar expresses displeasure with the adequacy of the post-incident investigation, he
does not present any evidence or articulate any basis to conclude that Unger was aware of a
pattern of unconstitutional conduct by correctional officers at Wyoming. The plaintiff’s response
to the instant motion (Docket No. 19) was merely a copy of the allegations asserted in the
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complaint. In light of the above, the plaintiff has failed to state a claim against Unger.

Conclusion
Based on the above, the motion to dismiss the complaint as against defendant Unger is
granted. A status conference shall take place on November 29, 2011 at 2:30 p.m. before the
undersigned to discuss the scheduling of further proceedings in this case relating to the remaining
defendant. Inasmuch as the plaintiff is incarcerated, counsel for the defendant is directed to
notify the facility at which the plaintiff is located to ensure that arrangements are made by the
facility to allow the plaintiff with access to a telephone, as well as access to his legal papers
relative to this action. Counsel for the defendant is directed to advise the court of a telephone
number to be used for the conference.
So Ordered.

/ s / Hugh B. Scott
United States Magistrate Judge
Western District of New York
Buffalo, New York
September 23, 2011

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