Cooper v. New York State Dept. of Corrections and Community Supervision et al

Filing 74

DECISION AND ORDER denying without prejudice 68 Motion to Amend or Correct.Signed by Hon. Hugh B. Scott on 6/5/2018. (GAI)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
Jason D. Cooper,
Plaintiff,

Decision and Order
12-CV-1227S

v.
Travis Hill et al.,
Defendants.

I.

INTRODUCTION
Plaintiff Jason Cooper (“Cooper”) allegedly was attacked by corrections officers on October
21, 2012, when the officers mistook him for someone who participated in a prison riot. For up to
eight hours after the riot, the corrections officers allegedly attacked Cooper a second time,
transferred him from one cellblock to another, and failed both to document his whereabouts and to
file certain procedurally required incident reports. Cooper subsequently commenced this litigation,
alleging various theories of liability by way of 42 U.S.C. § 1983. Because the current operative
complaint (Dkt. No. 10) was filed when Cooper was pro se, he now seeks leave to amend his
complaint (Dkt. No. 68)1 to add new individuals and the New York State Department of
Corrections and Community Services (“DOCCS”) as defendants. Cooper also seeks to add
Fourteenth Amendment allegations against certain individuals along with negligence or gross
negligence allegations against DOCCS itself.
District Judge William M. Skretny has referred this case to this Court under 28 U.S.C.
§ 636(b). (Dkt. No. 22.) The Court has deemed the motions submitted on papers under Rule 78(b)

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Motions to amend a complaint are considered non-dispositive. See, e.g., Fielding v. Tollaksen, 510 F.3d 175,
178 (2d Cir. 2007); Palmer v. Monroe Cty. Sheriff, 378 F. Supp. 2d 284, 289 (W.D.N.Y. 2005) (citations omitted).

of the Federal Rules of Civil Procedure. For the reasons below, the Court denies Cooper’s motion
but without prejudice.
II.

BACKGROUND
This case concerns an assault that Cooper allegedly suffered at the hands of corrections

officers while an inmate at Five Points Correctional Facility (“Five Points”) in Romulus, New York.
On October 21, 2012 around 9:00 PM, an inmate riot broke out in the Five Points recreational yard.
Cooper was in the yard at the time. Cooper claims to have had no involvement in the riot, but he
allegedly was misidentified as a participant and assaulted anyway in the recreational yard shortly after
corrections officers restored order. Cooper alleges a second assault after he was taken inside and
brought to a Five Points intake area:
Mr. Cooper was then brought to the 5PCF [Five Points] intake area where he
was placed in a pen along with other inmates who had been in the gym. Mr. Cooper
was then led to the shower area next to the 5PCF intake area. Present there were
Defendants Michael Maltese (“Maltese”) and Shawn Vanhorn (“Vanhorn”), both
COs, as well as other unidentified COs.
Defendant Maltese put a plastic bag over Mr. Cooper’s head and Defendant
Vanhorn turned the shower on and placed Mr. Cooper’s head under the shower, or
“water boarded” Mr. Cooper. The COs were questioning Mr. Cooper about the riot.
Defendant Maltese repeatedly kicked Mr. Cooper in the groin area.
Defendants Maltese and Vanhorn and the other CO kicked Mr. Cooper in
the back of the legs and hit him in the head while questioning him about the riot.
Defendants threatened to force Mr. Cooper to drink Gatorade bottles filled with
urine. Defendant Maltese told Mr. Cooper that he would kill him if he told anyone
about what had happened. Mr. Cooper was then brought back to the pen. Around
3:30 a.m., Mr. Cooper was moved to Block 11 on the orders of an unidentified 5PCF
personnel [sic]
(Dkt. No. 68-1 at 8.) Apart from the assaults themselves, Cooper has drawn attention in his
pleadings to how officials at Five Points lost track of him for up to eight hours during the night of
October 21–22, 2012. By “losing track,” Cooper means that the riot should have prompted a
number of procedures and reports including a count of all inmates from his Block 9; paperwork
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documenting his transfer from one cellblock to another; the creation of an Unusual Incident Report;
and the filing of a Use of Force Report. None of these procedures happened, purportedly in
violation of various DOCCS directives and state regulations. As a result, according to Cooper,
officials at Five Points have no documentation of Cooper’s whereabouts for up to eight hours after
the riot in question.
Cooper commenced this case by filing his original complaint on December 11, 2012. (Dkt.
No. 1.) Cooper filed an amended complaint on May 23, 2013. (Dkt. No. 10.) Cooper was pro se
when he filed both of these complaints. Judge Skretny appointed pro bono counsel for Cooper
February 3, 2015. (Dkt. No. 50.) Cooper now has filed the pending motion for leave to amend his
complaint for the first time with the assistance of counsel. The existing two counts for excessive
force under Section 1983 would remain unchanged. Cooper proposes adding new Counts 3 through
14 for negligence or gross negligence, along with new Counts 15 through 19 for violations of the
Fourteenth Amendment by way of Section 1983. As Cooper has explained, the new claims stem
from the following facts allegedly uncovered so far during discovery:
1) Mr. Cooper was unaccounted for hours during the emergency situation. Mr.
Cooper’s letter dated December 7, 2012, found at P. 17–18 of the Amended
Complaint, states that he was in the yard, taken into the gym and then to the
draft room, or intake area.
2) Mr. Cooper’s Use of force report disappeared. Mr. Cooper alleged in his
Amended Complaint that he was assaulted by Defendants Hill, Maltese and
Vanhorn. It is a reasonable inference that when an inmate is assaulted that a
Use of Force report will be produced and acted upon per DOCCS Directive.
3) Mr. Cooper was transferred to a new Block during riot. Mr. Cooper letters dated
10/28/12 and 12/7/12, found at P. 12 and p. 17–18 of the Amended
Complaint states that he was moved from Block 9 to Block 11 the night of
the riot.
4) Superintendent failed to render a decision in Mr. Cooper’s grievance. Mr.
Cooper’s letter dated 12/7/12, found at P. 17–18 of the Amended
Complaint, states that his grievance has not been resolved yet. Also, Mr.
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Cooper’s letter dated 12/7/12, found at P. 19 of the Amended Complaint
asks Superintendent Sheahan for a resolution to his grievance.
5) Failure of DOCCS Inspector General to conduct investigation. Mr. Cooper’s
letter dated 11/11/12, found at P. 23 of the Amended Complaint, is to the
DOCCS Inspector General discussing his grievance. Also, DOCCS letter
dated 12/19/12 to Mr. Cooper, found at P. 11 of the Amended Complaint,
states that his grievance was referred to the Office of the Inspector General.
6) Gross negligence. The reasonable inferences that can be drawn from the original
complaint as pointed out above is that defendants deliberately, willfully and
intentionally committed these acts such as to support the gross negligence
claims.
7) Negligence. The reasonable inferences that can be drawn from the original
complaint as pointed out above is that defendants recklessly committed these
acts such as to support the negligence claims.
(Dkt. No. 68-1 at 15–16.) With respect to parties, Cooper proposes adding DOCCS; Five Points
Superintendent Michael Sheahan; Corrections Officer C. Haff; the as-yet unnamed Watch
Commander from Five Points for the night in question; and the as-yet unnamed Inspector General
who allegedly failed to issue any findings from the investigation of the riot.
Defendants oppose Cooper’s motion for several reasons. To the extent that Cooper is
looking to add defendants in their official capacities, defendants claim that Eleventh Amendment
immunity would make the amendment futile. Defendants assert that the new claims would be
untimely and cannot relate back to the original complaint because of the way in which they add new
parties and theories of liability. Defendants also claim that undue prejudice and delay would result
from another amendment of Cooper’s complaint. Finally, defendants argue that some of the
proposed new claims do not set forth a precise theory of liability by way of Section 1983, while
other claims fail to demonstrate how a failure to follow certain administrative procedures rises to the
level of a constitutional violation.

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III.

DISCUSSION

A. Motions to Amend Generally
Under the circumstances here, “a party may amend its pleading only with the opposing
party’s written consent or the court’s leave. The court should freely give leave when justice so
requires.” Fed. R. Civ. P. 15(a)(2). Leave to amend “should not be denied unless there is evidence
of undue delay, bad faith, undue prejudice to the non-movant, or futility.” Milanese v. Rust-Oleum
Corp., 244 F.3d 104, 110 (2d Cir. 2001) (citation omitted). “An amendment to a pleading will be
futile if a proposed claim could not withstand a motion to dismiss pursuant to Rule 12(b)(6).”
Dougherty v. Town of N. Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 88 (2d Cir. 2002) (citation
omitted).

B. The Proposed Claims Against DOCCS
Of the various arguments that the parties have made, the Court will begin by looking at the
arguments concerning a failure to state a claim. In particular, the Court is concerned at the way in
which Cooper’s proposed new counts against DOCCS are worded. Counts 3 through 14 allege
various acts of negligence or gross negligence against DOCCS itself. In these proposed new counts,
Cooper makes repeated reference to how “DOCCS owed Mr. Cooper a duty” (Dkt. No. 68-2 at 9,
11), or how “DOCCS knew” the need for various reports (Id. at 13), or how “DOCCS negligently
failed to perform ministerial tasks required of it” (Id.). Names of individual officers or personnel
appear occasionally in these proposed counts, but Cooper ultimately charges all of the liability to
DOCCS as an entity.
There are several problems with this approach. “Section 1983 imposes liability for conduct
which subjects, or causes to be subjected the complainant to a deprivation of a right secured by the
Constitution and laws. It is well-settled that states and governments are not persons under § 1983
and, therefore, Eleventh Amendment immunity is not abrogated by § 1983.” Hilton v. Wright, 928 F.
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Supp. 2d 530, 546 (N.D.N.Y. 2013) (internal quotation marks and citations omitted); see also, e.g.,
Wilson v. Celestin, No. 17-CV-5592 (MKB), 2018 WL 2304762, at *2 (E.D.N.Y. May 18, 2018) (“As a
general matter, states enjoy sovereign immunity from suit in federal court, even if the claim arises
under federal law. States may only be sued in federal court when they have waived their sovereign
immunity, Congress has acted to abrogate state sovereign immunity pursuant to Section 5 of the
Fourteenth Amendment, or the plaintiff is suing a state official in his or her official capacity for
prospective injunctive relief from an ongoing constitutional violation.”) (internal quotation marks
and citations omitted); Johnson v. New York, No. 10 CIV. 9532 DLC, 2012 WL 335683, at *1
(S.D.N.Y. Feb. 1, 2012) (“DOCCS is an arm of the state. Consequently, plaintiff’s claims against the
State of New York and DOCCS, an agency of the State of New York, are barred by the Eleventh
Amendment and must be dismissed.”). Additionally, Cooper alleges ministerial and administrative
violations in Counts 3 through 14 that, by themselves, do not appear to implicate constitutional
violations. “A Section 1983 claim brought in federal court is not the appropriate forum to raise
violations of prison regulations. A violation of a state law or regulation, in and of itself, does not
give rise to liability under 42 U.S.C. § 1983.” Walker v. Bellnier, No. 9:17-CV-1008, 2018 WL 345951,
at *4 (N.D.N.Y. Jan. 10, 2018) (internal quotation marks and citations omitted).
As a result, the proposed Counts 3 through 14 fail to state a claim against DOCCS, making
any amendment to add them futile. The Court thus denies Cooper’s motion for leave to amend,
with respect to the proposed Counts 3 through 14. The denial is without prejudice; Cooper should
have one opportunity, with the assistance of counsel,2 to reformulate any additional claims against
individuals in a way that complies with Section 1983 and this Decision and Order.
2

Cf. Rivas v. Suffolk Cty., No. 04-4813-PR(L), 2008 WL 45406, at *2 (2d Cir. Jan. 3, 2008) (summary order)
(remanding for appointment of counsel and holding that “[a]ppointed counsel should be given the
opportunity to file in the district court any and all motions that counsel deems appropriate, including motions

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C. The Proposed Fourteenth Amendment Claims
The Court turns next to Counts 15 through 19 in the proposed amended complaint. In
these counts, Cooper alleges the same facts and the same events that he does elsewhere. Cooper
connects these events to the Fourteenth Amendment as follows:
Defendants Watch Commander and Sheahan were responsible for
ascertaining the whereabouts of all of the inmates during the riot in order to keep
them safe. They did this for every inmate in Block 9. However, they failed to do so
for Mr. Cooper for some irrational and arbitrary reason. Mr. Cooper suffered injury
and could have very easily suffered other horrible injuries at the hands of either COs
or other inmates.
(Dkt. No. 68-2 at 24.) Cooper hints at the Fourteenth Amendment when he alleges in Count 19 that
The Inspector General has deliberately, intentionally and willfully failed to
conduct the investigation it was charged to do. The Inspector General’s blatant
failure to fulfill its duty is caused a desire to keep hidden the fact that 5PCF
personnel could not account for Mr. Cooper’s whereabouts in the hours following
the riot; the fact that Mr. Cooper was assaulted but his Use of Force report
disappeared and was destroyed; the fact that Mr. Cooper was moved from one Block
to another during a lockdown in contradiction of DOCCS policy or Directive; and
that Mr. Cooper suffered injuries and water boarding at the hands of COs.
(Id. at 28–29.)
“To attack the content of a government policy as violating the Equal Protection Clause,
claimants must prove purposeful discrimination, directed at an identifiable or suspect class.
Alternatively, to win a claim of selective enforcement, a plaintiff must prove that he was
intentionally treated differently from other similarly situated individuals; and that the disparate
treatment was either (a) irrational and wholly arbitrary or (b) motivated by animus. The Second
Circuit has expanded on this latter test, explaining that a plaintiff must prove that (i) no rational

for default judgment, to reopen discovery, and for a new trial”); Barlow v. Male Geneva Police Officer Who Arrested
Me on Jan. 2005, No. 06-CV-6592 CJS MWP, 2013 WL 792762, at *6 (W.D.N.Y. Mar. 4, 2013) (appointing pro
bono counsel and reopening discovery accordingly); Maggette v. Dalsheim, No. 81 CIV. 7050 (PKL), 1985 WL
1393, at *1 (S.D.N.Y. May 21, 1985) (noting, as background, multiple amendments of pleadings and ongoing
discovery after appointment of pro bono counsel).

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person could regard the circumstances of the plaintiff to differ from those of a comparator to a
degree that would justify the differential treatment on the basis of a legitimate government policy;
and (ii) the similarity in circumstances and difference in treatment are sufficient to exclude the
possibility that the defendant acted on the basis of a mistake. In such a ‘class of one’ case, the
existence of persons in similar circumstances who received more favorable treatment than the
plaintiff is offered to provide an inference that the plaintiff was intentionally singled out for reasons
that so lack any reasonable nexus with a legitimate governmental policy that an improper purpose—
whether personal or otherwise—is all but certain.” Vann v. Fischer, No. 11 CIV. 1958 KPF, 2014
WL 4188077, at *19 (S.D.N.Y. Aug. 25, 2014) (internal quotation and editorial marks and citations
omitted). Compared to the standard for an equal-protection violation, Cooper’s proposed
amendments fall short. Cooper admits in his own proposed amended complaint that Five Points’s
failure to track his whereabouts on the night of the riot was not the result of intentional and
discriminatory animus. “Mr. Cooper was treated differently than other inmates because Defendants
Sheahan or Watch Commander did not follow the proper procedure to transfer Mr. Cooper from
Block 9 to Block 11.” (Dkt. No. 68-2 at 26; see also id. at 25 (“Defendants Haff and Sheahan were
left staring at Mr. Cooper’s Use of Force Report and wandering [sic] what to do.”).) Cooper’s
allegations of confusion and failure to follow procedure, for the filing or reports or the processing of
grievances, sound like violations of governmental policy that do not rise to the level of Fourteenth
Amendment violations. Cf. Telesford v. Annucci, No. 916CV0793BKSDEP, 2017 WL 3600941, at *6
(N.D.N.Y. July 26, 2017) (“[I]t is well settled that violations of state regulations, standing alone, are
not cognizable under section 1983.”) (citations omitted), report and recommendation adopted, No.
916CV0793BKSDEP, 2017 WL 3588640 (N.D.N.Y. Aug. 18, 2017); Banks v. Annucci, 48 F. Supp. 3d
394, 414 (N.D.N.Y. 2014) (“The law is clear that inmates do not enjoy a constitutional right to an
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investigation of any kind by government officials.”) (citations omitted); Odom v. Poirier, No. 99 CIV.
4933(GBD), 2004 WL 2884409, at *10 (S.D.N.Y. Dec. 10, 2004) (“While the filing of grievances is
constitutionally protected, the manner in which grievance investigations are conducted do not create
a protected liberty interest.”) (citation omitted); Torres v. Mazzuca, 246 F. Supp. 2d 334, 342
(S.D.N.Y. 2003) (“Prison grievance procedures do not confer any substantive right upon an inmate
requiring the procedural protections envisioned by the Fourteenth Amendment.”) (citations
omitted). Under these circumstances, Cooper’s proposed amendments would set forth a Fourteenth
Amendment violation in conclusory fashion and in a way that would not survive a motion to
dismiss.
The Court thus denies Cooper’s motion for leave to amend for the proposed Counts 15
through 19. As with the other counts, however, this denial is without prejudice. Cooper should
have one opportunity, with the assistance of counsel, to reformulate any Fourteenth Amendment
claims against specific individuals in a way that complies with Section 1983 and this Decision and
Order.

D. Other Amendments
Finally, a portion of Cooper’s motion for leave to amend concerns the addition of specific
individual defendants to this litigation. In light of the analysis that the Court has set forth above,
and given that any amended complaint submitted in the future would have to be substantially
restructured, the Court will not try to salvage small portions of the amended complaint proposed
right now. Cooper can seek leave in the future if he wants to add specific individuals to this case
under appropriate theories of Section 1983 liability.

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IV.

CONCLUSION
For all of the foregoing reasons, the Court denies Cooper’s motion for leave to amend (Dkt.

No. 68), but without prejudice.
SO ORDERED.

__/s Hugh B. Scott________
Hon. Hugh B. Scott
United States Magistrate Judge
DATED: June 5, 2018

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