Mirabella v. O'Keenan et al
DECISION AND ORDER GRANTING Defendants' 19 Motion to Dismiss the Amended Complaint as to the claims against Correctional Officers Roache, Stachewicz, and Vosburgh, as well as to Captain Gilmore, Deputy Superintendent Eckert, and Superintenden t Artus; DENYING Defendants' 19 Motion to Dismiss the Amended Complaint as to the claims against Correctional Officer Kiener and Sergeant Brown; DIRECTING the Clerk of Court to terminate Correctional Officers Roache, Stachewicz, and Vosburgh, as well as Captain Gilmore, Deputy Superintendent Eckert, and Superintendent Artus, as parties. Signed by William M. Skretny, United States District Judge on 9/4/2016. (MEAL) - CLERK TO FOLLOW UP -
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DECISION AND ORDER
CORRECTION OFFICER O’KEENAN, et al.,
Plaintiff, Todd Mirabella, is an inmate in the custody of the State of New York
Department of Corrections and Community Supervision, housed at Attica Correctional
He brings this action against employees of Attica, Correctional
Officers Kiener, Roache, Stachewicz, and Vosburgh (the “Correctional Officer
Defendants”), as well as Sergeant Brown, Captain Gilmore, Deputy Superintendent
Eckert, and Superintendent Artus (the “Supervisory Defendants”), alleging violations of
his Eighth Amendment rights under 42 U.S.C. § 1983 during his incarceration.
Defendants move to dismiss the Amended Complaint 1 under Federal Rule of Civil
Procedure 12 (b)(6), contending that Mirabella fails to allege a violation of constitutional
For the following reasons, the motion is denied as to the claims against
Defendants Correctional Officer Kiener and Sergeant Brown, and granted in all other
Mirabella filed an initial complaint on February 13, 2015. (Docket No. 1, the “Original Complaint”.) After
Defendants moved to dismiss on August 21, 2015 (Docket No. 13), Plaintiff filed the Amended Complaint,
which is the operative pleading document. (Docket No. 17, the “Amended Complaint”.)
II. BACKGROUND 2
On February 24, 2014, Mirabella transferred into Attica from Elmira Correctional
Facility. (Am. Compl. at ¶ 16.) When Mirabella arrived, an unnamed officer asked him
why he was incarcerated. (Id. at ¶ 17.) Mirabella told the unnamed officer he was
convicted of a sex crime involving minors; the unnamed correctional officer then hit
Mirabella on the head and another unnamed officer hit Mirabella on the back of the legs
with a baton. (Id.)
Shortly after this incident, on the same day as Mirabella’s arrival at Attica,
Defendant Correctional Officer Vosburgh told Mirabella to “kill himself,” and the next day
“went to [Mirabella]’s cell and asked [Mirabella] why he had not killed himself yet.” (Id.
at ¶ 18.) He also asked Mirabella if he had ever been sodomized, and “threatened that
he would be soon.” (Id. at ¶ 9.) On February 26, 2014, Vosburgh came to Mirabella’s
cell, this time Vosburgh “threatened [Mirabella] again and attempted to strike him
through [his] cell window.”
(Id. ¶ 20.)
And, on February 28, 2014, Mirabella was
“assaulted” by two unnamed correctional officers while Vosburgh “looked on and acted
as a lookout,” and that this attack “caus[ed] him to feel serious pain.” (Id. ¶ 22.) These
same officers denied Mirabella access to food and a shower.
“demanded” that the officer at the desk, Defendant Correctional Officer Stachewicz,
report this incident, but Stachewicz refused to do so, stating that he had not seen
anything. (Id.) On March 3, 2014, Mirabella filed a grievance reporting “the harassment
and assaults.” (Id. ¶ 23.)
Mirabella was eventually moved to D block.
(Id. ¶ 24.)
On April 6, 2014,
The following facts are taken from the Amended Complaint and accepted as true for the purposes of this
motion. See ATSI Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007).
Defendant Correctional Officer Kiener “conspicuously published [Mirabella]’s charges to
certain inmates and other correction officers in the area of his cell block, in an effort to
facilitate and cause an attack on [Mirabella].” (Id. ¶ 25.) Kiener also told Mirabella that
he had a “hit” on him. (Id.)
During this period, Mirabella alleges that unnamed officers harassed him, and
that they denied him access to “standard allowed items in his cell, denied him bible
study and the chow hall, denied his weekly phone call, threatened and accosted” him.
(Id. at ¶ 27.)
And on April 7, 2014, Defendant Correctional Officer Roache
“unnecessarily and wantonly assaulted plaintiff while he was walking to bible study.
Defendant Roache threatened to kill plaintiff if he reported the assault.” (Id. ¶ 26.)
Mirabella wrote two letters to Supervisory Defendant Sergeant Brown, on April 13
and 17, 2014, “asking for help in stopping the harassment” by the Correctional Officers.
(Id. at ¶ 27; see also Exh. A to the Original Complaint.) In the April 13, 2014 letter,
Mirabella noted some of the issues that he details in the Amended Complaint. Without
naming the specific officers, he states that a correctional officer threatened to kill him,
that another correctional officer put a “hit” on him, and that he has been denied of
certain privileges. (Exh. A to the Original Complaint at p. 3.) He finishes the letter by
stating that he does not seek to be moved, but is “asking you [Sergeant Brown] to
simply request that the COs [correctional officers] lay off me and move on to better
things.” (Id.) In the April 17, 2014 letter, Mirabella further specified that “Officer K,”
presumably Defendant Kiener, “has effectively put a ‘hit’ on me by printing out the
incidentals of my case and providing that info to several 39 company inmates for the
sole reason of inciting violence.” (Id. at p. 5.) Mirabella again notes that he does not
intend to file a grievance, but hopes that he, Sergeant Brown, and Kiener “can perhaps
discuss this and smooth it all out.” (Id.) Sergeant Brown did not respond to Mirabella’s
On April 19, 2014, an inmate slashed Mirabella’s face with a sharp object while
they were in the yard in a “wholly unprovoked attack.” (Id. ¶ 29.) The incident resulted
in in a 7.5 inch slash to the left side of Mirabella’s face that required 27 sutures. (Id. at ¶
29.) Mirabella now has a permanent scar on the left side of his face. (Id. at ¶ 37.)
Mirabella alleges that, although metal detectors were “readily available” at Attica,
“inmates were not required to go through [metal detectors] to enter and exit the
recreation yard, nor were inmates patted down or frisked. Such searches would have
likely prevented [Mirabella’s] injuries.” (Id. at ¶ 30.)
Mirabella alleges that Defendants “engaged in a joint venture and formed an
agreement to violate [Mirabella]’s rights.”
(Id. at ¶ 39.)
As evidence of this “joint
venture,” Mirabella alleges that his cell was intentionally left open while he was being
treated for his injury, and that this was to facilitate payment (e.g., the valuable items in
Mirabella’s cell) to the inmates who “initiate[d] and execute[d] an attack on” Mirabella.3
(Id. at ¶¶ 32-35.) Further, the inmate who slashed Mirabella was not disciplined for the
incident. (Id. at ¶ 36.) Mirabella also points to a letter from Supervisory Defendant
Captain Gilmore’s response to a letter sent by Mirabella’s family after the slashing,
wherein Captain Gilmore states that it was “not unusual” for inmates like Mirabella to
have “problems” with other inmates “considering the nature of his crimes.” (Id. at ¶ 52,
see also Exh. B to the Original Complaint.)
Mirabella alleges that he was reimbursed in full (less a few food items) for the property taken from his
cell. (Id. at ¶ 34.)
Rule 12(b)(6) allows dismissal of a complaint for “failure to state a claim upon
which relief can be granted.” Fed. R. Civ. P. 12(b)(6). In considering a motion to
dismiss pursuant to Rule 12 (b)(6), this Court must accept all factual allegations in the
complaint as true and make all reasonable inferences in a plaintiff’s favor.
Commc’ns, Inc., 493 F.3d at 98. To survive such a motion, a complaint must “contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on
its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d
868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167
L. Ed. 2d 929 (2007)). This assumption of truth applies only to factual allegations and is
inapplicable to legal conclusions. Iqbal, 556 U.S. at 678.
Plaintiff brings this action pursuant to 42 U.S.C. § 1983 and the Eighth
Amendment. To state a valid claim under 42 U.S.C. § 1983, the plaintiff must allege
that the challenged conduct (1) was attributable to a person acting “under color of state
law” and (2) deprived the plaintiff of a right, privilege, or immunity secured by the
Constitution or laws of the United States. Back v. Hastings on Hudson Union Free Sch.
Dist., 365 F.3d 107, 122 (2d Cir. 2004). “In addition, a prerequisite for liability under §
1983 is ‘personal involvement’ by the defendants in the alleged constitutional
Snyder v. McGinnis, No. 03-CV-0902E, 2004 WL 1949472, at *1
(W.D.N.Y. Sept. 2, 2004) (citing Spencer v. Doe, 139 F.3d 107, 112 (2d Cir. 1998)).
Correctional Officer Kiener
Mirabella alleges that Defendant Kiener violated his Eighth Amendment rights by
“publish[ing] plaintiff’s charges to certain inmates and other correction officers . . . in an
effort to facilitate and cause an attack on plaintiff.” (Am. Compl. at ¶ 25.) Mirabella
further alleges that Kiener told him that he had a “hit” on him, and that Mirabella was
slashed in an “unprovoked attack” less than two weeks later. (Am. Compl. at ¶¶ 25, 29.)
The Eighth Amendment, which prohibits cruel and unusual punishment, requires
prison officials to “take reasonable measures to guarantee the safety of inmates in their
custody.” Hayes v. N.Y. City Dep’t of Corr., 84 F.3d 614, 620 (2d Cir. 1996); see also
Farmer v. Brennan, 511 U.S. 825, 114 S. Ct. 1970, 128 L. Ed. 2d 811 (1994).
Specifically, “[p]rison officials have a duty to protect prisoners from violence at the
hands of other inmates since being violently assaulted in prison is ‘simply not part of the
penalty that criminal offenders pay for their offenses against society.’” Lee v. Artuz, No.
96-CV-8604, 2000 WL 231083, at *4 (S.D.N.Y. Feb. 29, 2000) (quoting Farmer, 511
U.S. at 834 (citation omitted)). Although “not . . . every injury suffered by one prisoner
at the hands of another . . . translates into constitutional liability for prison officials
responsible for the victim’s safety,” prison officials are liable under the Eighth
Amendment for exposing a prisoner to a constitutionally intolerable risk of violence.
See Farmer, 511 U.S. at 834; Morales v. N.Y. State Dep’t of Corr., 842 F.2d 27, 30 (2d
“In Farmer, the Supreme Court set out the two-pronged test that determines
when a failure to protect a prison inmate from assault by other inmates rises to the level
of a constitutional violation.” Hines v. Lacy, 189 F.3d 460 (2d Cir. 1999). The objective
first prong requires that the inmate must have been “incarcerated under conditions
posing a substantial risk of serious harm.” Farmer, 511 U.S. at 834. The subjective
second prong requires that the prison official possessed sufficient culpable intent,
specifically, “knowledge that an inmate faces a substantial risk of serious harm and he
disregards that risk by failing to take reasonable measures to abate the harm.” See
Hayes, 84 F.3d at 620 (citing Farmer, 511 U.S. at 834); see also Price v. Oropallo, No.
9:13-CV-0563 GTS/TWD, 2014 WL 4146276, at *8 (N.D.N.Y. Aug. 19, 2014) (explaining
that to establish deliberate indifference, “a plaintiff must prove that the defendant official
actually knew of and disregarded an excessive risk of harm to the plaintiff’s safety”).
Making all inferences in Mirabella’s favor, he has pleaded sufficient allegations
against Kiener, which, if substantiated, could establish an Eighth Amendment violation.
As to the first prong, Mirabella’s allegations regarding the slashing incident indicate that
he was “incarcerated under conditions posing a substantial risk of serious harm.”
Farmer, 511 U.S. at 834. As to the second prong, “[a] prisoner can state a claim under
the Eighth Amendment against a corrections officer who spreads malicious rumors
about him if the rumors ‘incited other inmates to assault [the plaintiff] . . . , thereby
placing him at grave risk of physical harm.’” Bouknight v. Shaw, 08 Civ. 5187, 2009 WL
969932, at *4 (S.D.N.Y. Apr.6, 2009) (quoting Young v. Coughlin, No. 93-cv-262 (DLC),
1998 WL 32518, at *7 (S.D.N.Y. Jan. 29, 1998)). Courts in this Circuit have previously
recognized that “a claim for deliberate indifference may lie where a corrections officer
identifies an inmate as being an informant or ‘snitch’ in front of other inmates.”
Campbell v. Gardiner, 12 Civ. 6003, 2014 WL 906160, at *4 (W.D.N.Y. Mar. 7, 2014)
(collecting cases). Although the precedent for identifying a prisoner as a sex offender or
child molester is less well-defined, Mirabella’s allegations are sufficient to plead that
Kiener’s alleged “publish[ing]” of Mirabella’s crime made Mirabella a target, much the
same as if Kiener had called him a snitch. See Arnold v. Cty. of Nassau, 252 F.3d 599,
601 (2d Cir. 2001) (acknowledging policy of segregating “inmates charged with sex
crimes . . . from the general prison population because they are at greater risk of assault
by other inmates”); see also Quezada v. Fischer, No. 913CV00885MADTWD, 2016 WL
1118451, at *2 (N.D.N.Y. Mar. 22, 2016) (denying motion to dismiss Eighth Amendment
claim under § 1983 where defendant encouraged another inmate to physically assault
plaintiff, and such an assault took place).
Mirabella alleges that Kiener acted intentionally to incite inmates to attack him,
and acknowledged as much by telling Mirabella that he had a “hit” on him. “Intentionally
exposing an inmate to the risk of harm, as alleged here, with no penological purpose is
indicative of deliberate indifference to the inmate’s safety at best and manifests an
intent to harm the inmate at worst, thus constituting cruel and unusual punishment in
violation of the 8th amendment to the U.S. Constitution.” Medina v. Whitehead, No.
3:13-CV-885 VLB, 2014 WL 3697886, at *2 (D. Conn. July 24, 2014) (finding allegations
that defendant “told inmates in the plaintiff’s housing unit that he was a pedophile and
several inmates that the plaintiff was a ‘snitch’ and that he should be punched in the
mouth for ‘snitching’” sufficient to demonstrate that defendant “was aware of the source
of the harm to which [plaintiff] had been subjected” and sufficient “to state a claim for
failure to protect”); see also Young, 1998 WL 32518, at *7 (correctional officer’s
comments suggesting that plaintiff was a homosexual and directing other inmates to
sexually harass and “jump” him could support an Eighth Amendment excessive force
claim if they incited other inmates to assault plaintiff, placing him at grave risk of
Kiener argues that there is no allegation he had contact with the inmate prior to
the attack, or that he knew the attack would happen before it occurred. This argument
fails. See Medina v. Whitehead, 2014 WL 3697886, at *2 (denying motion to dismiss
where “plaintiff has alleged that, as a result of the defendant’s comments labeling him
as a snitch and suggesting that he should be assaulted, four inmates tried to fight with
him” despite failure to allege any contact or link between defendant and attackers). “A
supported allegation that a correctional official made statements intending to incite
inmates to attack another inmate may state a claim under the Eighth or Fourteenth
Johnson v. Philling, No. CV 12-2523-PHX-RCB (SPL), 2013 WL
2244593, at *3 (D. Ariz. May 21, 2013) (citing Northington v. Jackson, 973 F.2d 1518,
1525 (10th Cir. 1992)); see also Sanders v. Davis, No. 11-cv-249-JPG, 2012 WL 43205,
at *2 (S.D. Ill. Jan. 9, 2012) (purposely inciting an inmate to attack another inmate
creates a threat to bodily harm sufficient to implicate plaintiff’s Eighth Amendment
rights). Under these circumstances, even if the slashing incident were not linked to
Kiener’s actions, Mirabella’s claim would still stand. Medina v. Black, No. 3:15-CV-1371
(VLB), 2016 WL 386030, at *6 (D. Conn. Feb. 1, 2016) (denying motion to dismiss
where “plaintiff allege[d] that the defendants themselves were inciting other inmates to
attack the plaintiff and even offered a bounty for any inmate who attacked him” even
though “no inmate accepted the offer”); see also Dawes v. Walker, 239 F.3d 489, 494
(2d Cir. 2001) (affirming dismissal of failure to protect claim, but noting that plaintiff had
failed to allege assault or credible threat of assault by other inmates), overruled on other
grounds, Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002).
Mirabella’s allegations that Kiener “conspicuously published plaintiff’s charges” to
inmates on the cell block, and that Kiener told Mirabella he had a “hit” on him (Am.
Compl. at ¶ 25), suggest deliberate conduct that created a real risk of physical injury.
And Mirabella actually suffered an attack, resulting in an injury and a permanent facial
scar. These allegations satisfy both the objective and subjective prongs of the Farmer
test. Accordingly, Kiener’s motion to dismiss the claims against him is denied.
Defendant Sergeant Brown
Mirabella alleges that Sergeant Brown also violated his constitutional rights by
failing to respond to his letters notifying him of Kiener’s actions, expressing fear for his
safety, and seeking Sergeant Brown’s assistance. In Mirabella’s second letter, sent just
two days before Mirabella’s face was slashed, Mirabella told Sergeant Brown that
Defendant Kiener “has effectively put a ‘hit’ on me by printing out the incidentals of my
case and providing that info to several 39 company inmates for the sole reason of
inciting violence.” (Exh. A to the Original Complaint at p. 5.) Mirabella asked that
Sergeant Brown “[p]lease get involved now.”
Mirabella further alleges that
Sergeant Brown was the D Block supervisor, and in charge of Kiener, a D Block officer.
(Am. Compl. at ¶¶ 10, 27.)
1. Personal Involvement
“[A] defendant in a § 1983 action may not be held liable for damages for
constitutional violations merely because he held a high position of authority.” Black v.
Coughlin, 76 F.3d 72, 74 (2d Cir. 1996).
Rather, the “personal involvement of
defendants in alleged constitutional deprivations is a prerequisite to an award of
damages under § 1983.” Farrell v. Burke, 449 F.3d 470, 484 (2d Cir. 2006) (internal
quotation marks omitted). In Turkmen v. Hasty, the Second Circuit addressed the issue
of personal involvement for supervisory defendants, holding that supervisory liability is
permissible only where the defendant’s conduct itself “reflects the elements of the
underlying constitutional tort.” 789 F.3d 218, 250 (2d Cir. 2015). Mirabella’s claim,
which is governed by the deliberate-indifference standard, “therefore survives so long
as [Mirabella] plausibly plead[s] that the conditions were sufficiently serious, and
[Sergeant Brown] ‘kn[e]w of, and disregard[ed], an excessive risk to [Mirabella’s] health
or safety.’” Id. (quoting Walker v. Schult, 717 F.3d 119, 125 (2d Cir. 2013)). In other
words, the claim can survive a motion to dismiss only if Mirabella plausibly alleges facts
showing that Sergeant Brown also acted with deliberate indifference, both to Kiener’s
actions and the resulting threat to Mirabella. See id.; see also Farmer, 511 U.S. at 834,
Sergeant Brown argues that Mirabella has failed to allege that he actually
received the letters that Mirabella sent to him. However, the Second Circuit has held
At the pleading stage, even if [plaintiff] had no knowledge or information
as to what became of his Letter after he sent it, he would be entitled to
have the court draw the reasonable inference—if his amended complaint
contained factual allegations indicating that the Letter was sent to the
[supervisory defendant] at an appropriate address and by appropriate
means—that the [supervisory defendant] in fact received the Letter, read
it, and thereby became aware of the alleged conditions of which [plaintiff]
Grullon v. City of New Haven, 720 F.3d 133, 141 (2d Cir. 2013).
Based on the
allegations of the Amended Complaint, including the text of the letter and Sergeant
Brown’s position within the cell block, this Court will draw “the reasonable inference . . .
that [Sergeant Brown] in fact received the Letter, read it, and thereby became aware of”
the alleged threat to Mirabella’s safety. Id.
Sergeant Brown further argues that “an allegation that a supervisory official
ignored a letter protesting past unconstitutional conduct is, without more, [in]sufficient to
state a claim that the official was ‘personally involved’ in the unconstitutional conduct.”
Platt v. Inc. Vill. of Southampton, 391 F. App’x 62, 65 (2d Cir. 2010); compare Grullon,
720 F.3d at 141. However, the Second Circuit precedent cited by Sergeant Brown in
favor of this position is distinguishable. In some instances, the alleged unconstitutional
conduct had already occurred, and the prisoner was seeking redress for a past
violation. See Wingate v. Horn, No. 07-2521-PR, 2009 WL 320182, at *2 (2d Cir. Feb.
10, 2009) (no personal involvement for supervisory defendants who were not aware of
alleged denial of voting rights prior to election day and failed to respond to letters sent
after election day). In others, the supervisory defendant responded to the letter in an
See Goris v. Breslin, 402 F. App’x 582, 584 (2d Cir. 2010) (no
personal involvement for doctor who “promptly referred [plainitff’s letters] to other
individuals for investigation and response”); Sealey v. Giltner, 116 F.3d 47, 51 (2d Cir.
1997) (prison official who received letter from inmate and forwarded it to subordinate for
investigation and response was not personally involved in depriving inmate of
constitutional right). Mirabella’s letter did not request that Sergeant Brown address past
wrongs. Instead he wrote out of fear that his safety was in imminent danger due to
Kiener’s actions—a fear that was realized just two days after sending the letter, when
Mirabella’s face was slashed. And, as alleged in the Amended Complaint, Sergeant
Brown failed to respond or delegate a response.
As discussed above, Mirabella has alleged that the conditions after Kiener made
the charges known were sufficiently serious, ultimately resulting in an attack and a
permanent scar to Mirabella’s face.
Further, Mirabella alleges that he informed
Sergeant Brown of Kiener’s actions and of the threat to his safety, and requested
Sergeant Brown’s intervention. Finally, Mirabella alleges that, despite Mirabella’s timely
notification, Sergeant Brown failed to act, and Mirabella was attacked two days later.
Accepting these allegations to be true, and making all inferences in Mirabella’s favor,
this Court finds that the Amended Complaint meets the standard set forth in Turkmen
and sufficiently alleges Sergeant Brown’s personal involvement.
2. Qualified Immunity
Sergeant Brown contends that, even if this Court finds Mirabella has alleged
personal involvement, the claims against him should nevertheless be dismissed on the
basis of qualified immunity. “The doctrine of qualified immunity protects government
officials from liability for civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would have
known.” Messerschmidt v. Millender, 132 S. Ct. 1235, 1244, 182 L. Ed. 2d 47 (2012)
(internal citations omitted).
“Thus, qualified immunity protects government officials
when they make ‘reasonable mistakes’ about the legality of their actions.” Doninger v.
Niehoff, 642 F.3d 334, 353 (2d Cir. 2011).
“‘[T]he qualified immunity defense . . .
provides ample protection to all but the plainly incompetent or those who knowingly
violate the law. . . . [I]f officers of reasonable competence could disagree on th[e] issue,
immunity should be recognized.’” Mangino v. Inc. Vill. of Patchogue, 808 F.3d 951, 959
(2d Cir. 2015) (quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d
However, a defendant asserting a qualified immunity defense on a motion to
dismiss “faces a formidable hurdle . . . and is usually not successful.” Field Day, LLC v.
County of Suffolk, 463 F.3d 167, 191-92 (2d Cir. 2006) (internal citation omitted). At the
motion to dismiss stage, this defense will succeed only where entitlement to qualified
immunity can be established “based [solely] on facts appearing on the face of the
complaint.” McKenna v. Wright, 386 F.3d 432, 436 (2d Cir. 2004). “Consequently, a
defendant presenting an immunity defense on a Rule 12(b)(6) motion instead of a
motion for summary judgment must accept that the plaintiff is entitled to all reasonable
inferences from the facts alleged, not only those that support his claim, but also those
that defeat the immunity defense.” Hyman v. Abrams, 630 F. App’x 40, 42 (2d Cir.
2015) (internal citation and punctuation omitted); see also Barnett v. Mount Vernon
Police Dep’t, 523 F. App’x 811, 813 (2d Cir. 2013) (“defendants moving to dismiss a suit
by reason of qualified immunity would in almost all cases be well advised to move for
summary judgment, rather than for dismissal under Rule 12(b)(6) or 12(c)”).
Limiting the analysis to the Amended Complaint, taking all of Mirabella’s alleged
facts as true, and drawing all reasonable inferences in his favor, this Court cannot
conclude as a matter of law that Sergeant Brown is entitled to immunity. If Sergeant
Brown received the request for help, knew of the threat to Mirabella’s safety, and failed
to take action, a jury could find that reasonable sergeants would agree that such a
failure was unconstitutional, and was, therefore, objectively unreasonable. Accordingly,
Sergeant Brown’s motion to dismiss the claims against him must be denied at this stage
in the litigation. 4
Correctional Officers Vosburgh, Stachewicz, and Roache
As to the remaining Correctional Officer Defendants, Mirabella’s allegations are
Although the statements attributed to Vosburgh are disgusting and
inexcusable, they do not rise to the level of a violation of constitutional rights. “It is wellsettled that words alone, however violent, are not held to amount to an assault, or to
constitute cruel and unusual punishment under the Eighth Amendment.”
Howard, No. 907-CV-0724 TJM/RFT, 2010 WL 1235236, at *12 (N.D.N.Y. Mar. 30,
2010) (citing Johnson v. Glick, 481 F.2d 1028, 1033 n. 7 (2d Cir. 1973), cert. denied,
414 U.S. 1033, 94 S. Ct. 462, 38 L. Ed. 2d 324 (1973)).
harassment or profanity alone, unaccompanied by an injury no matter how
inappropriate, unprofessional, or reprehensible it might seem, does not constitute the
violation of any federally protected right and therefore is not actionable under 42 U.S.C.
Moncrieffe v. Witbeck, 97-CV-253 (NAM/DRH), 2000 WL 949457, *3
(N.D.N.Y. Jun. 29, 2000) (quoting Aziz Zarif Shabazz v. Pico, 994 F. Supp. 460, 474
(S.D.N.Y. 1998)); see also Cossey v. Killacky, 04-CV-6305CJS(P), 2004 WL 1960163,
*2 (W.D.N.Y. Aug.16, 2004) (citing cases).
This Court is not persuaded by Sergeant Brown’s contention that the law regarding supervisory liability
in this Circuit is currently so unsettled that Sergeant Brown could not assess whether his actions
“violate[d] clearly established statutory or constitutional rights of which a reasonable person would have
known.” See Messerschmidt, 132 S. Ct. at 1244. This argument would, in effect, allow qualified immunity
to entirely negate supervisory liability under § 1983 until and unless the law is precisely defined. Although
the Second Circuit has not yet fully “determined the contours of the supervisory liability test,” see
Raspardo v. Carlone, 770 F.3d 97, 117 (2d Cir. 2014), this Court finds that Sergeant Brown’s alleged
actions fall squarely within the “contours” of deliberate indifference, which has long been recognized as a
basis for liability by the Second Circuit, including after the Supreme Court’s 2009 decision in Iqbal: “A
supervisory official may be liable in an action brought under § 1983 if he exhibited deliberate indifference
to the rights of inmates by failing to act on information indicating that unconstitutional acts were occurring.
Qualified immunity is not available to those who knowingly violate the law.” Vincent v. Yelich, 718 F.3d
157, 173 (2d Cir. 2013) (internal citations, emphasis, and punctuation omitted).
Further, Mirabella does not state a claim as to the alleged assaults involving
Vosburgh, Stachewicz, and Roache.
Mirabella pleads minimal facts as to these
incidents, alleging only that Vosuburgh “acted as a lookout” for an assault by unnamed
officers that “caus[ed] [Mirabella] to feel serious pain,” and that Stachewicz refused to
report the incident. (Am. Compl. ¶ 22.) As to the assault allegedly perpetrated by
Roache, Mirabella simply states that Roache “unnecessarily and wantonly assaulted”
him, then threatened him to keep quiet. (Id. ¶ 25.) These allegations do not meet the
deliberate indifference standard set forth above, nor do they state a claim for excessive
force. To state an excessive force claim, Mirabella must allege that: (1) “the conduct
was objectively harmful enough or sufficiently serious to reach constitutional
dimensions,” and (2) “the defendant acted with a subjectively sufficiently culpable state
of mind,” which is “characterized by wantonness in light of the particular circumstances
surrounding the challenged conduct.” Harris v. Miller, 818 F.3d 49, 63 (2d Cir. 2016)
(citations and internal quotations omitted). As pleaded, Mirabella’s claims fail to meet
Nor do Mirabella’s allegations regarding deprivations rise to the level of a
constitutional violation. Mirabella alleges that he slept one night without a mattress
(Am. Compl. at ¶ 18); he was denied food for 24 hours (id. at ¶¶ 21,22, 27); and that he
was denied access to the shower, phones, mail supplies, commissary, chow hall, bible
study, and “standard items for his cell” on several occasions (id. at ¶¶ 22, 27).
However, brief or isolated losses of privileges do not violate the Eighth Amendment.
See Suarez v. Kremer, No. 03-CV-809, 2008 WL 4239214, at *8 (W.D.N.Y. Sept. 11,
2008) (collecting cases); Snyder, 2004 WL 1949472, at *11 (granting a motion to
dismiss because the denial of food on two occasions is de minimis and not actionable);
Ford v. Phillips, No. 05 CIV. 6646 (NRB), 2007 WL 946703, at *9 (S.D.N.Y. Mar. 27,
2007) (“[A]s a matter of law, minor and temporary deprivations of property, showers and
recreation do not violate the Eighth Amendment.”). The restrictions alleged by Mirabella
“rise only to a de minimis level of imposition with which the Constitution is not
concerned.” Buthy v. Commissioner of the Office of Mental Health of New York State,
818 F.2d 1046, 1050 (2d Cir. 1987) (citation omitted).
Finally, Mirabella fails to set forth a conspiracy involving these Defendants. To
sustain a conspiracy claim under § 42 U.S.C.1983, a plaintiff must demonstrate that the
defendant “acted in a wilful manner, culminating in an agreement, understanding or
meeting of the minds, that violated the plaintiff's rights . . . secured by the Constitution or
the federal courts.” Malsh v. Austin, 901 F. Supp. 757, 763 (S.D.N.Y. 1995) (citations
and internal quotation marks omitted). “Complaints containing only conclusory, vague
or general allegations of a conspiracy to deprive a person of constitutional rights do not
state a claim for relief.” Walsh v. Goord, No. 07-CV-0246Sr, 2007 WL 1572146, at *7
(W.D.N.Y. May 23, 2007). Although Mirabella alleges that Defendants “engaged in a
joint venture and formed an agreement to violate [his] rights,” the only evidence he
points to is that his cell was left open after the slashing incident “to facilitate payment” to
the inmate who attacked him, and that inmate who slashed him was not disciplined.
(Am. Compl. at ¶¶ 32-36.)
He does not make any allegations that Vosburgh,
Stachewicz, or Roache left the cell open or made the decision not to discipline his
Nor does he allege that Vosburgh, Stachewicz, or Roache formed an
agreement with Kiener or participated in his alleged actions. Because the allegations of
a “joint venture” are not supported by any specific facts giving rise to the plausible
existence of a conspiracy, Mirabella fails to allege a plausible claim. See Boddie v.
Schnieder, 105 F.3d 857, 862 (2d Cir. 1997) (claims based on “conclusory, vague or
general allegations of conspiracy to deprive a person of constitutional rights” are
Accordingly, the claims against Vosburgh, Stachewicz, and Roache are
Captain Gilmore, Deputy Superintendent Eckert, and Superintendent Artus
Mirabella’s allegations are also lacking as to the remaining Supervisory
In order to be liable as a supervisor, there must be an underlying
constitutional violation. See Raspardo, 770 F.3d at 129 (“Because we have held that
there was no underlying constitutional violation, there is also no supervisory liability.”).
Because Mirabella’s pleadings as to the “harassment” and “assaults” fail to state a
claim, the sole constitutional violation alleged by Mirabella is Correctional Officer
Kiener’s actions, specifically the incitement of attacks by other inmates.
Mirabella alleges that all of the Supervisory Defendants “should have been
aware” of their employees’ “propensity . . . to engage in constitutional violations” and
“may have in fact been aware of the specific threats confronting” Mirabella.
Compl. at ¶ 49.) He also makes general allegations that there were metal detectors
available at Attica, but that these were not utilized for inmates entering and exiting the
recreation yard (where Mirabella was attacked). (Id. at ¶ 30.)
With respect to the metal detectors, Mirabella has not alleged that the
Supervisory Defendants are responsible for the policy that they not be used at the
entrance to the recreation area. Even if he had, Mirabella’s bare allegation would not
be sufficient to state a claim for deliberate indifference. Warren v. Goord, 579 F. Supp.
2d 488, 496 (S.D.N.Y. 2008), aff’d, 368 F. App’x 161 (2d Cir. 2010) (deliberate
indifference claim dismissed where plaintiff offered only conclusory statements that use
of “metal detectors would significantly reduce the risk to inmates of being assaulted by
other inmates”). Nor has Mirabella alleged the object that slashed him was made of
And unlike Sergeant Brown, whom the Amended Complaint alleges was
informed of the specific risk to Mirabella’s safety through his letter requesting
intervention, there is no indication that the other Supervisory Defendants knew of, and
failed to respond to, Kiener’s behavior and the resulting threat to Mirabella’s safety.
Instead, Mirabella pleads only that these Defendants were aware of the general risks for
prisoners at Attica. However, “[t]he general risk that plaintiff encounters due to the
nature of his conviction is the same as other prisoners who share the same type of
convictions. The law is not based on knowledge of a ‘general risk.’” Gillard v. Jarvis,
No. 9:11-CV-1021 LEK/ATB, 2012 WL 7037734, at *7 (N.D.N.Y. Nov. 6, 2012), report
and recommendation adopted, No. 9:11-CV-1021 LEK/ATB, 2013 WL 474384
(N.D.N.Y. Feb. 7, 2013) (citing Hogan v. Fischer, No. 09–CV–6225, 2012 WL 4845609,
at *6 (W.D.N.Y. Oct.10, 2012) (failure to protect against a general threat of harm is
The specific allegations with respect to Superintendent Artus and Captain
Gilmore cannot form the basis of a claim, because they relate only to these defendants’
knowledge outside the period relevant to the alleged constitutional violation.
Superintendent Artus allegedly signed off on the dismissal of a grievance filed by
Mirabella on March 3, 2014, wherein Mirabella complained that he was being harassed
by corrections officers. (Id. at 50.) And Captain Gilmore is alleged to have sent a letter
on May 6, 2014, in response to a letter sent by a family member of Mirabella on May 3,
2014, “acknowledg[ing] that ‘due to the nature’ of plaintiffs [sic] crime, it is ‘not unusual’
that he would have ‘problems’ with other inmates.” (Id. at ¶ 52, see also Exh. B to the
Original Complaint.) But the critical period, as alleged, falls between April, 6, 2014—
when Kiener “published” Mirabella’s charges to the inmates on his cell block—and April
19, 2014—when Mirabella was attacked. Prior to April 6, 2014, there had not yet been
a constitutional violation, and after April 19, 2014, Mirabella was placed in the protective
custody unit to “keep him safe from other inmates.” (Exh. B to the Original Complaint.)
Therefore, Superintendent Artus could not have been deliberately indifferent, because a
constitutional violation had not yet occurred and there was not yet a threat to Mirabella’s
And Captain Gilmore could not have been deliberately indifferent, because
Mirabella was in protective custody at the time he is alleged to have been made aware
of the situation, and so no longer in danger.
Accordingly, Mirabella does not state a claim for failure to protect against Captain
Gilmore, Deputy Superintendent Eckert, and Superintendent Artus.
This Court finds that Mirabella has stated claims only against Correctional Officer
Kiener and Sergeant Brown. The claims against all other defendants are dismissed
without prejudice pursuant to Rule 12(b)(6).
IT HEREBY IS ORDERED that Defendants’ motion to dismiss the Amended
Complaint (Docket No. 19) is GRANTED as to the claims against Correctional Officers
Roache, Stachewicz, and Vosburgh, as well as to Captain Gilmore, Deputy
Superintendent Eckert, and Superintendent Artus;
FURTHER, that the motion to dismiss is DENIED as to the claims against
Correctional Officer Kiener and Sergeant Brown;
FURTHER, that the Clerk of Court is directed to terminate Correctional Officers
Superintendent Eckert, and Superintendent Artus, as parties.
Dated: September 4, 2016
Buffalo, New York
/s/William M. Skretny
WILLIAM M. SKRETNY
United States District Judge
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