Gagne v Fix
DECISION AND ORDER re: the DOCCS defendants' 76 Motion for Summary Judgment is granted in part and denied in part, and Rademacher, Jr.'s 87 Motion for Summary Judgment is denied in its entirety. This action against defendants Chappiu s, Conway, Pritchard, and Rademacher, Jr., is referred back to Judge Scott for further proceedings. All claims against the other defendants are dismissed consistent with this Decision and Order. SO ORDERED. Signed by Hon. Lawrence J. Vilardo on 10/11/2017. (Chambers mailed a copy of this Decision and Order to Stephen Gagne, 84-A-4007, 6687 Rt 86, Jay, NY 12941.) (CMD)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
STEPHEN GAGNE, 84-A-4007,
DECISION AND ORDER
FIX, et al.,
Plaintiff Stephen Gagne, a pro se litigant, commenced this action pursuant to 42
U.S.C. Section 1983 against several defendants, all of whom are former or current
employees of the New York State Department of Corrections and Community
Supervision (“DOCCS”). Gagne bases his complaint on several incidents that allegedly
occurred at Attica Correctional Facility (“Attica”) in April and May, 2009. 1 Docket Item 1
Initially, the complaint asserted seven grounds for relief. Upon preliminary
screening, the Court (Hon. Michael A. Telesca) dismissed sua sponte the seventh claim
and portions of the first and third claims. Docket Item 4. Subsequently, Judge Telesca
adopted Magistrate Judge Hugh B. Scott’s recommendation to grant the DOCCS
defendants’ motion for summary judgment or judgment on the pleadings with respect to
According to DOCCS’s online inmate information database, Gagne was
released on parole on August 4, 2016. See DOCCS Inmate Locator/Lookup Service
http://nysdoccslookup.doccs.ny.gov/GCA00P00/WIQ2/WINQ120 (last visited July 19,
the first, second, third, and fifth claims. 2 Docket Item 13; Docket Item 26, adopted at
Docket Item 29. Gagne’s remaining claims allege excessive force (fourth claim) and
supervisory liability (sixth claim). Docket Item 1 ¶¶ 57-67, 88-96.
All defendants 3 now move for summary judgment on the following grounds: (1)
the plaintiff failed to serve defendant George Heltz; 4 (2) the facts supporting the
plaintiff’s fourth claim—excessive force—do not constitute a constitutional violation; (3)
certain defendants were not personally involved in the alleged use of excessive force
and therefore cannot be liable; and (4) the defendants are entitled to qualified
immunity. 5 Docket Item 76-1 at 2-16; Docket Item 87-1 at 1-10.
Gagne opposes the motion and has submitted a memorandum of law, an
opposing statement of disputed facts, and a declaration with accompanying exhibits.
Docket Items 84, 88.
For the reasons that follow, the DOCCS defendants’ motion is granted in part
and denied in part, and Rademacher, Jr.’s motion is denied in its entirety.
These claims were dismissed on res judicata grounds because they involved
facts virtually identical to those asserted in a previous New York State Court of Claims
matter brought by the plaintiff.
Defendant Matthew Rademacher, Jr., is represented by separate counsel.
Docket Item 64. His motion for summary judgment, Docket Item 87, closely mirrors that
of the DOCCS defendants, Docket Item 76. All named defendants sometimes will be
referred to collectively as “defendants” with citations to their respective papers insofar
as they assert the same arguments.
Defendant Heltz was never served in this action, and the plaintiff does not
contest the dismissal of the claims against him. Docket Item 84 at 3.
The defendants also argue that the plaintiff cannot establish a claim of
retaliation under the First Amendment. Docket Item 76-1 at 8-9. But all counts
asserting retaliation already have been dismissed. Docket Item 4 at 16; Docket Item 26
The following facts, drawn from the DOCCS defendants’ Rule 56 statement of
facts and accompanying affidavits and exhibits (Docket Items 76-2 through 76-4), are
undisputed unless otherwise indicated.
Parties and Allegations
At the time of the events alleged in the complaint, Gagne was an inmate in the
care and custody of DOCCS, housed at Attica.
Gagne alleges that his Eighth Amendment rights were violated when he was
assaulted by Heltz, Gary Pritchard, and Rademacher, Jr. He also claims that John
Whiteford threatened and intimidated him. Docket Item 1 at 20, ¶¶ 63-64. With regard
to the supervisory defendants—Karen Bellamy, Paul Chappius, James Conway,
Thomas Egan, Brian Fischer, William Gonzales, Lucien LeClaire, Richard Roy, George
Streubel, Galyn Schenk, and Timothy Taborski—Gagne claims that they were aware of
the assault and failed to intervene or prevent it from taking place. Finally, in the claims
that still remain, Gagne makes no allegations against Scott Bosworth, 6 Peter Corcoran,
DOCCS, David Fix, Deborah Graf, Peter Rademacher, Sr., or Cathie Turton.
Facts Relevant to the May 8, 2009 Incident
Gagne testified that at some point between April 24 and May 24, 2009, Fix told
him that he (Gagne) had “a beating coming from Pritchard’s crew.” Docket Item 76-4 at
The allegations against Bosworth stemmed from the claims of retaliation, but
those claims have been dismissed. See supra note 5.
11-12, 13. Gagne does not claim that Fix was involved in any physical abuse. Id. But
he testified that on May 8, 2009, while attending an evening meal, he indeed got the
More specifically, Gagne claims that on the evening of May 8, he encountered
Heltz, Pritchard, Rademacher, Jr., and three other corrections officers in the mess hall.
He testified that Pritchard took him out of line and instructed him to get against the wall
with his hands above his head. While other inmates continued walking toward the mess
hall, the officers told Gagne to “stop complaining.” Docket Item 76-4 at 18. According
to Gagne, Pritchard hit him once in the ribs with a stick; Rademacher, Jr., punched him
on his left side; some unnamed officers kicked him in the stomach; and Heltz stepped
on his leg. Gagne said that he was bruised from being struck with the baton,
experienced pain in his ribs on the right side of his body, and experienced pain in his left
leg from being stepped on. Id. at 18, 28-29. But according to the medical records,
when Gagne was seen by medical personnel on May 8, and again on May 12, 2009, he
did not complain of physical injury, nor did he request any medical care. 7 See Docket
Item 76-3 ¶¶ 7, 19.
The record is unclear as to when Gagne first received medical attention after
the incident. It appears that certain pages of Gagne’s deposition relevant to his medical
visit are omitted from the defendants’ submissions. The transcript of Gagne’s
deposition suggests that Gagne was not permitted sick call on the evening of the
incident (May 8) but that he did visit medical on May 9 or 10. Docket Item 76-4 at 2829. Gagne testified that he reported the assault to staff, id., yet no notation was made
in his medical file, Docket Item 76-3, ¶ 7. The DOCCS defendants maintain that Gagne
was seen after the incident and that he never informed staff of the alleged assault or
complained about any injuries sustained as a result. Docket Item 76-3, ¶ 19. The
medical records themselves indicate visits on May 8, see infra at n.8 and accompanying
text, and May 12, 2009, see Docket Item 76-3.
Gagne testified that he understood the beating to be “just a warning, because
there was [sic] . . . family members calling from the street and they knew that this was
not going to be left unaddressed.” Docket Item 76-4 at 21. He therefore spoke with
Taborski regarding protective custody on May 13, 2009. Id. at 23. But on May 19,
2009, Gagne signed a refusal of an offer of protective custody. Docket Item 84 at 2829. Gagne testified that he never got a chance to “go back and see [Taborski]. He told
me to go speak with my wife on the visit. I was headed to the visit that day . . . But he
did absolutely nothing and he never came back to see me again.” Docket Item 76-4 at
Gagne also testified that on May 14, 2009, Whiteford, a senior counselor at
Attica, advised him not to complain about staff but rather to “blame” another inmate in
order to secure a transfer. Id. at 25-26. According to Gagne, Whiteford told him, “you
want to leave here, pick an inmate, you know, because your problems are about to get
worse than they were.” Id. at 27. A memorandum from Whiteford, dated July 2, 2009,
stated that he “did speak with inmate Gagne at his request. I clarified the procedure for
requesting Protective Custody and advised him he would have to identify inmates by
name or cell location since he stated he was having problems.” Docket Item 84-1 at 3839. Gagne concedes that Whiteford was not involved in any physical abuse. Docket
Item 84 ¶ 23.
Gagne testified that he informed defendants Bellamy, Chappius, Conway, Egan,
Fischer, Gonzalez, LeClaire, Roy, Schenk, Streubel, and Taborski about the threats and
assault. Docket Item 76-4 at at 14, 22, 30, 32-33. For example, Gagne wrote to
Chappius on April 28, 2009, reporting that he was told by Fix that he “had a beating
coming.” Docket Item 84-1 at 8-9. Gagne’s wife, Delia Gagne, likewise wrote to prison
officials. In her letter dated May 5, 2009, she explained her concerns about her
husband’s safety in C-Block due to the “3-11 shift officers” whose names she “withheld
for the moment.” Id. at 15-16. For that reason, she requested a facility transfer and
protective custody. Id.
A fax transmittal from the Assistant DOCCS Commissioner to Conway dated May
11, 2009, advised that an investigation of Gagne’s claims was required and noted that a
“family member alleges safety concern.” Id. at 18-19. On the same date, Chappius
wrote a memo to Lieutenant Polak that stated, “[n]ow the wife is involved. Add it to the
others.” Id. at 13-14. Gagne reiterated his complaints about the assault in a letter
dated May 16, 2009, addressed to Fischer, LeClaire, and Chappius. Id. at 20-21.
A memorandum dated May 20, 2009, from the Assistant Commissioner to
Conway, indicated that Taborski investigated Gagne’s fear of retribution and “found no
evidence to substantiate the inmate’s concerns for his safety. There is no merit in the
inmate’s or his wife’s allegations.” Id. at 30-31.
Gagne was transferred to Wende Correctional Facility on June 16, 2009. Four
days later, he underwent a 48-minute physical examination by a nurse practitioner, who
did not note any bruising or injuries consistent with the alleged assault. Docket Item 763 ¶14. Although the exact timing is in dispute, it appears that the transfer and physical
examination occurred more than a month after the alleged incident. Cf. Docket Item 84
On July 31, 2009, Gagne complained to medical personnel about increased back
and leg pain, but he did not relate that pain to having been punched or kicked.
Likewise, the medical records do not indicate that Gagne complained of physical injury
resulting from being punched, kicked, or hit in the ribs or legs, nor did the medical
records note any signs or symptoms consistent with any alleged assault. Docket Item
76-3 ¶ 17.
Summary Judgment in Section 1983 Claims
Summary judgment is warranted if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law. See Fed.R.Civ.P. 56(c). A material fact is one that might
affect the outcome of a lawsuit. Kinsella v. Rumsfeld, 320 F.3d 309, 311 (2d Cir. 2003).
A “genuine” issue exists when “the evidence is such that a reasonable jury could return
a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
Where, as here, a plaintiff is proceeding pro se, the court will “liberally construe
pleadings and briefs . . . reading such submissions ‘to raise the strongest arguments
they suggest.’” Bertin v. United States, 478 F.3d 489, 491 (2d Cir. 2007) (quoting
Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)). But even a pro se litigant cannot
defeat a motion for summary judgment by relying simply upon conclusory statements or
allegations unsupported by facts. Davis v. New York, 316 F.3d 93, 100 (2d Cir. 2002).
Section 1983 authorizes anyone who has been deprived of a federal right under
color of state law to seek relief through “an action at law, suit in equity, or other proper
proceeding for redress.” City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526
U.S. 687, 707 (1999) (quoting 28 U.S.C. Section 1983). Two essential elements
comprise a Section 1983 claim: (1) the defendant acted under color of state law; and (2)
as a result of the defendant’s actions, the plaintiff suffered a denial of his federal
statutory rights or his constitutional rights or privileges. Annis v. Cnty. of Westchester,
136 F.3d 239, 245 (2d Cir. 1998) (citation omitted).
The personal involvement of a defendant is a prerequisite for liability in a Section
1983 action, McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir. 1977), and the doctrine
of respondeat superior does not apply to such claims. Polk County v. Dodson, 454 U.S.
312, 325 (1981). Thus, a plaintiff must demonstrate “a tangible connection between the
acts of the defendant and the injuries suffered.” Bass v. Jackson, 790 F.2d 260, 263 (2d
Cir. 1986) (citation omitted).
Excessive Force (Fourth Claim)
The Eighth Amendment prohibits cruel and unusual punishment, which includes
punishments that “involve the unnecessary and wanton infliction of pain.” Gregg v.
Georgia, 428 U.S. 153, 173 (1976). “A claim of cruel and unusual punishment in
violation of the Eighth Amendment has two components—one subjective, focusing on
the defendant’s motive for his conduct, and the other objective, focusing on the
conduct’s effect.” Wright v. Goord, 554 F.3d 255, 268 (2d. Cir. 2009).
“The subjective component of the claim requires a showing that 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, 554
F.3d at 268 (internal quotations omitted). When prison officials are accused of using
excessive force, the “wantonness” issue turns on whether force was applied in a goodfaith effort to maintain or restore discipline, or maliciously and sadistically to cause
harm. Hudson v. McMillian, 503 U.S. 1, 7 (1992); see also Blyden v. Mancusi, 186 F.3d
252, 262-63 (2d Cir. 1999).
Objectively, the plaintiff must show that the alleged use of force was grave or
harmful enough to be actionable. Only physical force that is “repugnant to the
conscience of mankind” amounts to a constitutional violation. Whitley v. Albers, 475
U.S. 312, 327 (1986) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). Conversely,
the Constitution’s “prohibition of ‘cruel and unusual’ punishments necessarily excludes
. . . de minimis uses of physical force.” Hudson, 503 U.S. at 9-10. As the Second
Circuit has noted, not “every push or shove, even if it may later seem unnecessary in
the peace of the judge’s chambers, violates a prisoner’s constitutional rights.” Johnson
v. Glick, 481 F.2d 1028, 1033 (2d Cir.), cert. denied sub nom. John v. Johnson, 414
U.S. 1033 (1973), (overruled on other grounds by Graham v. Connor, 490 U.S. 386
Yet the “core judicial inquiry” in an Eighth Amendment excessive-force case is
“not whether a certain quantum of injury was sustained, but rather whether force was
applied in a good-faith effort to maintain or restore discipline, or maliciously and
sadistically to cause harm.” Wilkins v. Gaddy, 559 U.S. 34, 37 (2010) (quotation
omitted). In Hudson, the Supreme Court emphasized that “[w]hen prison officials
maliciously and sadistically use force to cause harm, contemporary standards of
decency always are violated . . . whether or not significant injury is evident.” 503 U.S. at
9. In Wilkins, the Court noted that Hudson did not merely “lower the injury threshold for
excessive-force claims from ‘significant’ to ‘non-de minimis’—whatever those ill-defined
terms might mean.” 559 U.S. at 39. Instead, the Court explained that Hudson “aimed to
shift the ‘core judicial inquiry’ from the extent of the injury to the nature of the force—
specifically, whether it was nontrivial and ‘was applied . . . maliciously and sadistically to
cause harm.’” Id. (quoting Hudson, 503 U.S. at 7). And the Court identified several
factors to be considered in determining whether a use of force violated the Eighth
[T]he extent of injury suffered by an inmate is one factor that
may suggest whether the use of force could plausibly have
been thought necessary in a particular situation, or instead
evinced such wantonness with respect to the unjustified
infliction of harm as is tantamount to a knowing willingness
that it occur. . . . In determining whether the use of force was
wanton and unnecessary, it may also be proper to evaluate
the need for application of force, the relationship between
that need and the amount of force used, the threat
reasonably perceived by the responsible officials, and any
efforts made to temper the severity of a forceful response
. . . . The absence of serious injury is therefore relevant to
the Eighth Amendment inquiry, but does not end it.
Hudson, 503 U.S. at 7 (quotations omitted).
As noted above, Gagne testified that on May 8, 2009, Heltz, Pritchard, and
Rademacher, Jr., (as well as other correction officers who are unnamed or no longer
parties to this action) gratuitously took Gagne out of the mess hall line and had him
place his hands over his head. Gagne stated that after the officers told him to “stop
complaining,” Pritchard hit him once in the ribs with a stick; Rademacher, Jr., punched
him on his left side; other officers kicked him repeatedly in the stomach; and Heltz
stepped on his leg. Docket Item 76-4 at 18-19. Gagne testified that he was bruised and
in pain as a result of the assault. Id. at 28-29.
For the purposes of this motion, the defendants do not dispute that the incident
took place but contend that any alleged injuries stemmed from a de minimis use of
force. They base that conclusion on Gagne’s allegation that he was struck only once
with a baton (by Pritchard) and punched only once (by Rademacher, Jr.). They also
assert that Gagne suffered no serious injury as a result. Docket Items 76-1 at 6, 87-1 at
With respect to the subjective component, the record does not suggest the need
for any force here. Indeed, no affidavits were provided from any of the officers involved,
and no unusual incident report was completed. Docket Item 76-4 at 27. Although
Gagne acknowledges that he was not cuffed or shackled at the time of the assault, he
alleges that the assault was entirely unprovoked. Id. at 56. And an inmate working as a
mess-hall-cart attendant witnessed the incident and corroborated Gagne’s version of
the events. Docket Item 84-1 at 1-2.
The defendants have offered no legitimate rationale—in fact, they have offered
no rationale at all—for the use of force. That is exactly the sort of conduct contemplated
by Wilkins and Hudson as meeting the “subjective” requirement. Stated another way,
the plaintiff’s allegations suggest that the defendants used force with sadistic and
As it must, this Court views the evidence in the light most favorable to the plaintiff
and draws all reasonable inferences and resolves all ambiguities in his favor. See
Niagara Mohawk Power Corp. v. Jones Chem. Inc., 315 F.3d 171, 175 (2d Cir. 2003)
(citing Anderson, 477 U.S. at 255). For the reasons stated above, there is a triable
issue of fact with regard to the subjective component of Gagne’s excessive-force claim.
With respect to the objective component, the defendants have submitted
Gagne’s medical record dated May 8, 2009—the date of the alleged incident—that does
not indicate any complaints of pain. Docket Item 76-3 (Exhibit A) (medical records
manually filed). The time notation in that record is unintelligible, however, and there is
no affidavit submitted by the provider who saw Gagne on that date. It is unclear from
the record, then, whether Gagne went to sick call before or after the incident. 8 Id. In
fact, Gagne testified that he was refused sick call after the incident that day; that he was
not seen until a day or two later; and that even then medical staff did not note the
assault incident. Docket Item 76-4 at 28-29. Thus, there is no discernable evidence in
the record to support the defendants’ claim that Gagne did not suffer a significant injury.
What is more, the absence of a significant injury might not be fatal to Gagne’s
claim. See, e.g., Griffin v. Crippen, 193 F.3d 89, 91–92 (2d Cir. 1999) (reasoning, in the
context of a summary judgment motion on an Eighth Amendment claim, that while the
appellant’s excessive-force claim was “weak and his evidence extremely thin,” his minor
injuries, including a bruised shin and swelling in one knee, were not de minimis as a
matter of law because genuine issues of material fact existed). Therefore, because
there is a question of fact as to whether Gagne suffered a significant injury, and
If Gagne went to sick call before the alleged incident, there, of course, could be
no record of the incident, or notation of complaints related to it, in the medical record.
On the other hand, if he went to sick call after the incident, that raises a reasonable
inference—absent evidence otherwise—that he went because of some injury sustained
as a result of the alleged assault.
because if he did not his claim still might survive, Gagne’s narrative raises a claim of
excessive force sufficient to survive summary judgment.
Accordingly, the defendants’ motion for summary judgment is denied as to
Gagne’s excessive-force claim. Because Gagne does not contest the dismissal of his
claims against Heltz, see supra at n.5, Gagne’s excessive-force claim may proceed
against Pritchard and Rademacher, Jr.
Gagne’s allegation of an Eighth Amendment violation against Whiteford for
making an alleged threat, however, fails to raise a constitutional claim. Even if true,
Whiteford’s comments that Gagne “wasn’t leaving with a staff separation,” and that if
Gagne wanted to “leave here,” he should “pick an inmate, because [his] problems
[were] about to get worse . . . ,” did not injure Gagne in any way. Docket Item 1 ¶ 64.
According to Gagne’s sworn testimony, the conversation with Whiteford occurred six
days after the alleged assault, and Gagne does not allege that Whiteford was involved
in the incident itself.
Whiteford’s words seem to offer advice, not to threaten Gagne. But even if
Whiteford was threatening Gagne, allegations of threats, standing alone, generally do
not raise a constitutional violation. See, e.g., Cole v. Fischer, 2010 WL 2130974, *2 (2d
Cir. May 27, 2010). Such is the case here. Gagne does not raise an issue of fact as to
Whiteford’s involvement in the alleged assault; the purported “threat” occurred after the
use of force by Pritchard and Rademacher, Jr.; and Gagne does not allege any causal
connection between the purported threat and any injury he sustained. Under these
circumstances, Gagne’s claim against Whiteford must be dismissed. See e.g., Sanders
v. Huges, 2015 WL 5655526, at *5 (N.D.N.Y. Sept. 24, 2015) (“To the extent that a
constitutional claim is premised solely on verbal harassment, it must fail.”).
Personal Involvement and Supervisory Liability (Sixth Claim)
In order to bring a Section 1983 claim against a prison official, “a plaintiff must
allege that individual’s personal involvement . . . .” Ippolito v. Goord, 2012 WL 4210125,
at *7 (W.D.N.Y. Sept. 19, 2012). Indeed, “supervisor liability in a § 1983 action depends
on a showing of some personal responsibility, and cannot rest on respondeat superior.”
Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir. 2003). But there are several ways in
which supervisory officials can be personally involved in a constitutional violation: “(1)
actual direct participation in the constitutional violation, (2) failure to remedy a wrong
after being informed through a report or appeal, (3) creation of a policy or custom that
sanctioned conduct amounting to a constitutional violation, or allowing such a policy or
custom to continue, (4) grossly negligent supervision of subordinates who committed a
violation, or (5) failure to act on information indicating that unconstitutional acts were
occurring.” Hernandez, 341 F.3d at 145. 9
The Second Circuit has not addressed whether any or all of the so-called Colon
categories survive the Supreme Court’s decision in Ashcroft v. Iqbal, 556 U.S. 662
(2009). See, e.g., Grullon v. City of New Haven, 720 F.3d 133, 139 (2d Cir. 2013)
(“Although the Supreme Court’s decision in Ashcroft v. Iqbal . . . may have heightened
the requirements for showing a supervisor’s personal involvement with respect to
certain constitutional violations, we need not reach Iqbal’s impact on Colon in this case
. . . .”); 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 . . . .”). This Court therefore presumes Colon
is still good law and applies its factors.
Here, Gagne has not made any personal allegations against Fix, Graf,
Rademacher, Sr., Corcoran, and Turton in his claim for supervisory liability (or any other
claim that still remains). Therefore, the complaint is dismissed as to these defendants.
With respect to Chappius and Conway, on the other hand, Gagne has raised a
material issue of fact about their personal involvement. More specifically, he has
submitted an April 25, 2009 letter alerting Chappius to the fact that Gagne faced
“serious physical harm.” Docket No. 84-1 at 8-11. After a later complaint about safety
concerns was made by Gagne’s wife on May 5, 2009, Chappius acknowledged that he
knew about the concerns in a note he wrote to Lieutenant Polak, stating “[n]ow the wife
is involved. Add it to the others.” Id. at 16-17. 10 Likewise, defendant Conway and the
Assistant DOCCS Commissioner exchanged correspondence regarding Gagne’s case
and investigation both before and after the alleged assault. Id. at 18-19, 30-31.
While it is true that the mere receipt of a letter, by itself, does not amount to
personal involvement, “[a] supervisor’s detailed, specific response to a plaintiff’s
complaint suggests that the supervisor has considered the plaintiff’s allegations and
evaluated possible responses.” Mateo v. Fischer, 682 F. Supp. 2d 423, 430–31
(S.D.N.Y. 2010) (citing Walker v. Pataro, 2002 WL 664040, at *13 (S.D.N.Y. Apr. 23,
2002) (holding that personal involvement will be found only when a supervisory official
“receives and acts on a prisoner’s grievance (or substantively reviews and responds to
some other form of inmate complaint)”)). Here, drawing all inferences in Gagne’s favor,
it appears that Conway and Chappius not only were aware of the plaintiff’s complaints,
but discussed them internally with other DOCCS staff, investigated them, and, on at
Lieutenant Polak is not a party to this action.
least one occasion, initiated communication with Gagne about them. Docket Item 84-1
at 35. Notably, even after the alleged incident, which the defendants do not dispute
occurred for purposes of the motion at bar, Conway wrote that there was “no evidence
to substantiate the inmate’s concerns for his safety. There is no merit in the inmate’s or
his wife’s allegations.” Docket No. 84-1 at 30-31. A reasonable jury therefore could
find: (1) that the correspondence and note constituted specific “information indicating
that unconstitutional acts were occurring,” and (2) that the failure of Chappius and
Conway to act upon this information constitutes “personal involvement” for the purposes
of Section 1983. See Colon, 58 F.3d at 873. The DOCCS defendants’ motion for
summary judgment is therefore denied as to Chappius and Conway.
The allegations against defendant Taborski, on the other hand, were limited to
his offering Gagne protective custody after the alleged assault on May 13, 2009. There
is no evidence that Taborski was aware of any alleged threats leading to the assault or
was otherwise involved in the assault. For that reason, he is not personally involved
and cannot be held liable for the use of force incident.
As for Bellamy, Egan, Fischer, Gonzalez, LeClaire, Roy, Struebel, and Schenk,
the DOCCS defendants are correct that they are merely employees in supervisory
positions. Although Gagne claims that he informed these defendants of the alleged
threats and assault against him, he submits nothing more than his own testimony and a
handful of either unanswered or forwarded letters. Docket Items 76-4 at 32-33, 84-1 at
13, 24-26, 35, 37. That is insufficient to establish personal involvement. See, e.g.,
McFadden v. Friedman, 2015 WL 5603433, at *19 (N.D.N.Y. Sept. 23, 2015) (“[W]here
an inmate alleges that he sent a letter to a prison official, and the prison official failed to
investigate allegations of staff misconduct, the inmate must show more than merely
reciting the fact that they sent a letter.”); Rivera v. Fischer, 655 F. Supp. 2d 235, 238
(W.D.N.Y. 2009) (“[I]f an official receives a letter from an inmate and passes it on to a
subordinate for response or investigation, the official will not be deemed personally
involved with respect to the subject matter of the letter.”); Mateo, 682 F. Supp. 2d at
For all the above reasons, the DOCCS defendants’ motion for summary
judgment as to the supervisory officials is granted with respect to Fix, Graf,
Rademacher, Sr., Corcoran, Turton, Bellamy, Egan, Fischer, Gonzalez, LeClaire, Roy,
Struebel, Schenk, and Taborski but is denied as to Chappius and Conway.
Finally the defendants argue that Chappius, Conway, and Rademacher, Jr., are
protected by the doctrine of qualified immunity. 11 Docket Items 76-1 at 15-17, 87-1 at
9. Qualified immunity protects government officials from civil liability “insofar as their
conduct does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
In fact, even if the constitutional privileges at issue “are so clearly defined that a
reasonable public official would know that his actions might violate those rights,
The Court reads the DOCCS defendants’ qualified immunity argument as
being asserted on behalf of only the supervisory defendants. Docket Item 76-1 at 16-17
(naming only “Conway, Roy, Fisher, LeClaire, Gonzalez, Struebel, Egan, Bellamy,
Schenk, Taberski, and Chappius”). The DOCCS defendants did not include Pritchard in
their argument on qualified immunity, and this Court therefore does not consider
whether Pritchard is entitled to qualified immunity here.
qualified . . . immunity might still be available . . . if it was objectively reasonable for the
public official to believe that his acts did not violate those rights.” Kaminsky v.
Rosenblum, 929 F.2d 922, 925 (2d Cir. 1991).
It is well-settled that on May 8, 2009, the Eighth Amendment prohibited law
enforcement officers from using excessive force against inmates. See Hudson, 503
U.S. at 9-10. Here, there is a question of fact as to whether the remaining defendants
used not only excessive but also wanton and gratuitous force against Gagne or whether
they were personally involved in failing to supervise and prevent that assault. No
reasonable security officer could possibly believe that what Gagne has alleged does not
violate his constitutional rights. Therefore, Chappius, Conway, and Rademacher, Jr.,
are not entitled to qualified immunity for the alleged Eighth Amendment violation.
For the reasons discussed above, the DOCCS defendants’ motion for summary
judgment (Docket Item 76) is granted in part and denied in part, and Rademacher, Jr.’s
motion for summary judgment (Docket Item 87) is denied in its entirety.
This action against defendants Chappius, Conway, Pritchard, and Rademacher,
Jr., is referred back to Judge Scott for further proceedings. All claims against the other
defendants are dismissed consistent with this Decision and Order.
s/Lawrence J. Vilardo
LAWRENCE J. VILARDO
UNITED STATES DISTRICT JUDGE
DATED: October 11, 2017
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