Gutierrez v. Reddien et al

Filing 4

-CLERK TO FOLLOW UP-ORDER: The motion of Plaintiff Gutierrez to proceed in forma pauperis 2 is granted; the claims against Defendants S. Reddien, Dale A. Artus, P. Kugler, S. Eckert and Sgt. Mitchell, in their official capacities, are all dismissed with prejudice; Plaintiff is granted leave to file an Amended Complaint against Defendants Artus and Eckert only as directed in the enclosed Order by September 16, 2016; the Clerk of Court is directed to send to Plaintiff with this Order a blank &# 167; 1983 complaint form, and the instructions for preparing an amended complaint; in the event Plaintiff fails to file an Amended Complaint as directed by September 16, 2016, the claims regarding Defendants Artus and Eckert are dismissed with prejud ice without further order of the Court, and those Defendants are to be terminated from this action; in the event Plaintiff does not file an Amended Complaint as directed above, the Clerk of the Court is directed to file Plaintiff's papers, and t o cause the United States Marshal to serve copies of the Summons, Complaint (Docket No. 1), and this Order upon Defendants Reddien, Kugler and Mitchell without Plaintiff's payment therefor, unpaid fees to be recoverable if this action terminates by monetary award in Plaintiff's favor. Pursuant to 42 U.S.C. § 1997e(g)(2), the served Defendants are directed to answer the Complaint. Issued by Hon. Richard J. Arcara on 8/11/16. (LAS)

PS

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________
OMAN GUTIERREZ,
Plaintiff,
-v-

15-CV-0822-A
ORDER

S. REDDIEN, DALE A. ARTUS,
P. KUGLER, S. ECKERT and
SGT. MITCHELL,
Defendants.
___________________________________
Oman Gutierrez, a prisoner confined at Great Meadow Correctional Facility, filed
this pro se action seeking relief under 42 U.S.C. § 1983 (Docket No. 1). Plaintiff
Gutierrez has both requested permission to proceed in forma pauperis and filed a
signed authorization (Docket No. 2). The Plaintiff alleges that he was assaulted by
corrections officers when he asked to speak to a supervisor, as more specifically
detailed in his Complaint. For the reasons discussed below, Plaintiff's request to
proceed as a poor person is granted, some of his claims may go forward, but some of
his claims will be dismissed pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A unless
Plaintiff files an Amended Complaint as directed below.
DISCUSSION
Because Plaintiff Gutierrez has met the statutory requirements of 28 U.S.C.
§ 1915(a) and filed an Authorization with respect to this action, Plaintiff is granted
permission to proceed in forma pauperis. Sections 1915(e)(2)(B) and 1915A(a) of 28
U.S.C. require the Court to conduct an initial screening of this Complaint. In evaluating
the Complaint, the Court must accept as true all of the factual allegations and must
draw all inferences in Plaintiff’s favor. See Larkin v. Savage, 318 F.3d 138, 139 (2d Cir.

2003) (per curiam); King v. Simpson, 189 F.3d 284, 287 (2d Cir. 1999). While “a court is
obliged to construe [pro se] pleadings liberally, particularly when they allege civil rights
violations,” McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004), even pleadings
submitted pro se must meet the notice requirements of Rule 8 of the Federal Rules of
Civil Procedure. Wynder v. McMahon, 360 F.3d 73 (2d Cir. 2004). “Specific facts are
not necessary,” and a plaintiff “need only ‘give the defendant fair notice of what the ...
claim is and the grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93,
(2007) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal
quotation marks and citation omitted); see also Boykin v. Keycorp, 521 F.3d 202, 213
(2d Cir 2008) (discussing pleading standard in pro se cases after Twombly - “even after
Twombly, dismissal of a pro se claim as insufficiently pleaded is appropriate only in the
most unsustainable of cases.”). Generally, the Court will afford a pro se plaintiff an
opportunity to amend or to be heard prior to dismissal “unless the court can rule out any
possibility, however unlikely it might be, that an amended complaint would succeed in
stating a claim.” Abbas v. Dixon, 480 F.3d 636, 639 (quoting Gomez v. USAA Federal
Savings Bank, 171 F.3d 794, 796 (2d Cir. 1999) (per curiam )).
Plaintiff brings this action pursuant to 42 U.S.C. § 1983. "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."
Whalen v. County of Fulton, 126 F.3d 400, 405 (2d. Cir. 1997) (citing Eagleston v.
Guido, 41 F.3d 865, 875-76 (2d Cir.1994)). Based on its evaluation of the Complaint,
the Court finds that some of Plaintiff's claims may go forward, but others are subject to
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dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and 1915A(b) because they fail to
state a claim upon which relief may be granted.
Assault and Retaliation
Plaintiff Gutierrez alleges that he was assaulted by Defendants Reddien and
Kugler when he requested to speak to a supervisor, and that Defendant Mitchell was
supervising and present when the attack took place. Specifically, Plaintiff alleges that
he was tripped by Defendant Reddien, slammed face down and that Defendant Kugler
assisted by stepping on Plaintiff’s feet and applying excessive weight. Plaintiff alleges
that his injuries caused pain for weeks after the event. Plaintiff has thus alleged that
Defendants Reddien, Kugler and Mitchell either personally took part in the attack on him
or were present and directed or assisted in the attack. Presuming that all allegations
are true, as we must, Plaintiff has adequately pled excessive use of force against
Defendants Reddien, Kugler and Mitchell.
Plaintiff further alleges that the assault was in retaliation for concerns he had
expressed about his access to religious services and for past grievances filed against
Defendants. To make out a § 1983 retaliation claim, an inmate must show: (1) that he
was engaged in constitutionally protected conduct; and (2) that the prison official's
conduct was taken in retaliation for the inmate's protected conduct. Graham v.
Henderson, 89 F.3d 75, 80 (2d Cir. 1996). The Second Circuit “has held that retaliation
against a prisoner for pursuing a grievance violates the right to petition government for
the redress of grievances guaranteed by the First and Fourteenth Amendments and is
actionable under § 1983.“ Id. at 79 (citing Franco v. Kelly, 854 F.2d 584 (2d Cir. 1988)
(prisoner alleged that false disciplinary charges were issued in retaliation for his
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cooperation with an investigation into inmate abuse)). "[I]ntentional obstruction of a
prisoner’s right to seek redress of grievances 'is precisely the sort of oppression that ...
section 1983 [is] intended to remedy.'" Id. at 589 (alterations in original) (quoting
Morello v. James, 810 F.2d 344, 347 (2d Cir. 1987)). "The right to petition government
for redress of grievances — in both judicial and administrative forums — is 'among the
most precious of the liberties safeguarded by the Bill of Rights.'" Graham, id.
Here, Plaintiff has specifically alleged that the assault was due to his prior
complaints, and occurred in the immediate aftermath of his request to speak to a
supervisor. He has further alleged that Defendant Reddien had complained in the past
about Plaintiff seeking redress of grievances, calling Plaintiff a rat and a snitch. If true,
these allegations establish that the complained of actions were retaliation in response to
and a result of constitutionally protected conduct. Plaintiff has therefore adequately
pled a claim of retaliation against Defendants Reddien, Kugler and Mitchell.
Plaintiff also names Defendants Artus and Eckert as supervisory personnel. In
order to establish a defendant's individual liability in a suit brought under § 1983, a
Plaintiff must show the defendant's personal involvement in the alleged constitutional
deprivation. See, e.g., Sealey v. Giltner, 116 F.3d 47, 51 (2d Cir.1997); Colon v.
Coughlin, 58 F.3d 865, 873 (2d Cir.1995); Williams v. Smith, 781 F.2d 319, 323 (2d
Cir.1986). The Second Circuit has held that:
[t]he personal involvement of a supervisory defendant may be shown by
evidence that: (1) the defendant participated directly in the alleged
constitutional violation, (2) the defendant, after being informed of the
violation through a report or appeal, failed to remedy the wrong, (3) the
defendant created a policy or custom under which unconstitutional
practices occurred, or allowed the continuance of such a policy or custom,
(4) the defendant was grossly negligent in supervising subordinates who
committed the wrongful acts, or (5) the defendant exhibited deliberate
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indifference to the rights of inmates by failing to act on information
indicating that unconstitutional acts were occurring.
Colon, 58 F.3d at 873 (emphases added); see Williams, 781 F.2d at 323–24.
Plaintiff’s Complaint states that he informed Defendants Artus and Eckert of the
assault after the fact, and that the Defendants advised Plaintiff to await the result of the
official processes.  “After the fact notice of a violation of an inmate's rights is insufficient
to establish a supervisor's liability for the violation. Receiving post hoc notice does not
constitute personal involvement in the unconstitutional activity and cannot be said to
have proximately caused the damage suffered by the inmate.” Rahman v Fisher, 607 F.
Supp 2d 580, 585 (SDNY 2009). Plaintiff’s claims against Defendants Artus and Eckert
are thus subject to dismissal. However, Plaintiff will be offered an opportunity to file an
Amended Complaint in which the necessary allegations regarding this issue are
included. Davidson v. Flynn, 32 F.3d 27, 31 (2d Cir. 1994) (“Sparse pleadings by a pro
se litigant unfamiliar with the requirements of the legal system may be sufficient at least
to permit the plaintiff to amend his complaint to state a cause of action”); Fed.R.Civ.P.
15(a)(2) (“court should freely give leave when justice so requires”). Plaintiff may amend
his Complaint to set forth allegations which would establish the personal involvement of
each Defendant in his assault and retaliation claims.
Official-Capacity Claims
Plaintiff Gutierriez has made claims against each Defendant in both their
individual and their official capacities. The Eleventh Amendment bars federal courts
from exercising subject matter jurisdiction over claims against states absent their
consent to such suit or an express statutory waiver of immunity. See Pennhurst State
School & Hospital v. Halderman, 465 U.S. 89, 98-100, (1984). It is well-settled that
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states are not "persons" under § 1983, and thus Eleventh Amendment immunity is not
abrogated by that statute. Will v. Michigan Dept. of State Police, 491 U.S. 58, 66-67
(1989). The Eleventh Amendment bar extends to agencies and officials sued in their
official capacities. Kentucky v. Graham, 473 U.S. 159, 166 (1985). Plaintiff may
therefore sue the Defendants in their official capacity only if they consent to be sued.
Pennhurst, 465 U.S. 89 at 199-201. Since none have consented, the Eleventh
Amendment bars the Plaintiff's suit against the Defendants in their official capacity, to
the extent that such claims have been made. Those claims are therefore dismissed
with prejudice.
CONCLUSION
Because the Plaintiff, Oman Gutierrez, has met the statutory requirements of 28
U.S.C. § 1915(a) and filed an Authorization, his request to proceed in forma pauperis is
granted. For the reasons set forth above, Plaintiff Gutierrez’s official capacity claims
must be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B). Further, some of Plaintiff’s
remaining claims must be dismissed unless he files an Amended Complaint by
September 16, 2016 in which he includes necessary allegations as directed above and
in a manner that complies with Rules 8 and 10 of the Federal Rules of Civil Procedure.
Plaintiff is advised that an amended complaint is intended to completely replace
the prior complaint in the action, and thus it "renders [any prior complaint] of no legal
effect." International Controls Corp. v. Vesco, 556 F.2d 665, 668 (2d Cir. 1977), cert.
denied sub nom., Vesco & Co., Inc. v. International Controls Corp., 434 U.S. 1014
(1978); see also Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir. 1994).
Therefore, Plaintiff’s Amended Complaint must include all of the allegations against
each of the Defendants against whom the case is going forward so that the Amended
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Complaint may stand alone as the sole Complaint in this action which the Defendants
must answer. If Plaintiff fails to file an Amended Complaint as directed, the claims
against Defendants Artus and Eckert will be dismissed with prejudice pursuant to 28
U.S.C. § 1915(e)(2)(B). Service of the remaining claims on Defendants Reddien,
Kugler and Mitchell shall be effected as directed below.
ORDER
IT HEREBY IS ORDERED, that Plaintiff’s motion to proceed in forma pauperis is
granted;
FURTHER, that Plaintiffs claims against Defendants S. Reddien, Dale A. Artus,
P. Kugler, S. Eckert and Sgt. Mitchell, in their official capacities, are dismissed with
prejudice;
FURTHER, that Plaintiff is granted leave to file an Amended Complaint against
Defendants Artus and Eckert only as directed above by September 16, 2016;
FURTHER, that the Clerk of Court is directed to send to Plaintiff with this Order a
blank § 1983 complaint form, and the instructions for preparing an amended complaint;
FURTHER, that in the event Plaintiff fails to file an Amended Complaint as
directed above by September 16, 2016, the claims regarding Defendants Artus and
Eckert are dismissed with prejudice without further order of the Court, and those
Defendants are terminated from this action;
FURTHER, in the event Plaintiff does not file an Amended Complaint as directed
above, the Clerk of the Court is directed to file Plaintiff’s papers, and to cause the
United States Marshal to serve copies of the Summons, Complaint (Docket No. 1), and
this Order upon Defendants Reddien, Kugler and Mitchell without Plaintiff’s payment
7

therefor, unpaid fees to be recoverable if this action terminates by monetary award in
Plaintiff’s favor. Pursuant to 42 U.S.C. § 1997e(g)(2), the served Defendants are
directed to answer the Complaint.
SO ORDERED.

s/Richard J. Arcara
HONORABLE RICHARD J. ARCARA

DATED:

August 11, 2016
Buffalo, NY

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