Perez v. France
Filing
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DECISION AND ORDER GRANTING Defendant Frances' 6 Motion for Partial Dismissal of the Complaint: GRANTING Defendant Cunningham's 10 Motion for Partial Dismissal of the Complaint. Signed by William M. Skretny, Chief Judge on 6/22/2014. - CLERK TO FOLLOW UP - (MEAL)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
MARCUS PEREZ,
Plaintiff,
v.
DECISION AND ORDER
13-CV-829S
JAMES D. FRANCE and
JOHN B. CUNNINGHAM,
Defendants.
1.
On August 14, 2013, Plaintiff Perez brought this action against two Corrections
Officers, under 42 U.S.C. § 1983 and New York Corrections Law § 137(5). His Complaint
alleges that, on August 18, 2012, Defendants restrained and repeatedly struck him,
causing fractures to his left arm, in violation of the Fourth, Eighth, and Fourteenth
Amendments to the United States Constitution and New York law. Pending before the
Court are Defendants’ motions for partial dismissal. Docket Nos. 6 and 10. Because
Plaintiff has either conceded or does not oppose Defendants’ various arguments for
dismissal, the motions will be granted. They are discussed herein to the extent necessary
to identify the claims that will go forward.
2.
Defendants first argue that Plaintiff’s claims under New York Corrections Law §
137(5) must be dismissed because Corrections Law § 24 bars actions against them in
their individual capacities. Section 24 of the Corrections Law requires that claims arising
out of an officer’s action or failure to act within the scope of employment must be brought
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in the Court of Claims as a claim against the state. Plaintiff concedes that his state law
claims against these individuals are barred by § 24, and states that he previously
commenced an action against the State of New York in the Court of Claims based on the
August 18, 2012 incident. Docket No. 12 at 4.
3.
Defendants next urge that, under the Eleventh Amendment, they are immune from
claims for monetary damages that are based on their alleged violation of Plaintiff’s
constitutional rights while acting in their official capacities. Plaintiff concedes that he
cannot maintain his official capacity claims. 1 Id. at 2, 5.
4.
Finally, Defendants point to paragraph 14 of the Complaint, where their conduct is
described as “willful, negligent and/or reckless.” They argue that negligence, a
recognized state common law claim, does not rise to the level of an Eighth Amendment
violation under 42 U.S.C. § 1983. Plaintiff did not respond to this aspect of Defendants
motion, and simply states that he can maintain constitutional claims against Defendants
in their individual capacities.
5.
The Eight Amendment prohibits the infliction of “cruel and unusual punishments.”
U.S. Const. amend. VIII. “A correction officer who negligently causes an . . . injury to an
inmate has not engaged in the type of wanton or malicious conduct necessary to support
an Eighth Amendment excessive force claim.” Flake v. Wash. County Sheriff’s Dep’t, No.
12-CV-517, 2014 U.S. Dist. LEXIS 45386, at *38 (N.D.N.Y. Feb. 21, 2014) (citing Daniels
v. Williams, 474 U.S. 327, 106 S. Ct. 662, 88 L. Ed. 2d 662 (1986)). In short, Defendants’
position is supported by established precedent, and Plaintiff has offered no opposing
1 The Court notes that Plaintiff was no longer incarcerated when he commenced this action, Complaint ¶¶
3-4, and so can make no claim for prospective injunctive relief. Thus, dismissal of the official capacity claims
in their entirety is appropriate.
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argument. To the extent Plaintiff’s Eighth Amendment claim is predicated on Defendants’
alleged negligence, the claim fails as a matter of law.
6.
Based on the foregoing, Defendants’ motions for partial dismissal are granted in
their entirety. What remains are Plaintiff’s constitutional claims against Defendants in
their individual capacities, except to the extent that Plaintiff seeks to base his Eighth
Amendment excessive force claim on Defendants’ alleged negligence.
******
IT HEREBY IS ORDERED, that Defendant France’s (Docket No. 6) and Defendant
Cunningham’s (Docket No. 10) Motions for Partial Dismissal of the Complaint are
GRANTED in their entirety.
SO ORDERED.
Dated:
June 22, 2014
Buffalo, New York
/s/William M. Skretny
WILLIAM M. SKRETNY
Chief Judge
United States District Court
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