Hogan v. Fischer et al

Filing 106

ORDER dismissing 59 Motion for Default Judgment; dismissing 60 Motion for Summary Judgment; granting 61 Motion to Dismiss; dismissing 72 Motion ; dismissing 73 Motion to Strike ; dismissing 74 Motion ; dismissing 102 Motion to Compel; dismissing 11 Motion to Strike. Signed by Hon. Michael A. Telesca on 10/10/12. (Clerk to close case.) (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

JOHN HOGAN,
Plaintiff,

DECISION AND ORDER
No. 09-CV-6225(MAT)

-vsBRIAN FISCHER, Commissioner D.O.C.S.;
JAMES T. CONWAY, Superintendent; PAUL
CHAPPIUS, Deputy Superintendent For
Security; EDWIN MENDEZ, CRAIG BALCER,
Sergeants; CHRISTOPHER J. ERHARDT, GARY
J. PRITCHARD, KEVIN J. GEFERT, NICHOLAS
P. LANNI, NICHOLAS J. PIECHOWICZ, JOHN
DOE #1, JOHN DOE #2, JOHN DOE #3, JOHN
DOE #4, JOHN DOE #5, JOHN DOE #6, JOHN
DOE #7, CORRECTION OFFICERS; JANE DOE
#1, JANE DOE #2, Nurses,
Defendants.

I.

Introduction
Pro se plaintiff John Hogan (“Hogan” or “Plaintiff”), an

inmate at Attica Correctional Facility, commenced this action
pursuant to 42 U.S.C. § 1983. In his Complaint, Hogan alleged for
his first claim that Commissioner Fisher unlawfully allowed him to
be transferred to Attica from Clinton Correctional Facility. In the
remaining claims (two through sixteen), Hogan alleged that the
other defendants, who hold administrative and staff positions at
Attica, committed various constitutional violations against him.
On initial screening, the Court (Siragusa, D.J.) dismissed the
first claim for failing set forth a cognizable constitutional
claim, and dismissed Commissioner Fischer as a defendant. The Court

also dismissed the claims brought against Superintendent Conway and
Deputy

Superintendent

of

Security

(“DSS”)

Chappius

in

their

official capacities. See Dkt #4. The remaining claims were allowed
to proceed.
The parties exchanged written discovery over the next three
years.

Presently

pending

are

Plaintiff’s

Motion

to

Strike

Respondent’s Answer (Dkt #11), filed on 23, 2009; Plaintiff’s
Motion for Default Judgment (Dkt #59), filed March 18, 2010;
Plaintiff’s Motion for Summary Judgment (Dkt #60), filed April 20,
2010; Defendants’ Motion to Dismiss (Dkt #61), filed May 3, 2010;
Plaintiff’s Motion to Allow Reply (Dkt #72), Motion to Strike
(Dkt #73), Motion for Time (Dkt #74), all filed August 26, 2010;
and Plaintiff’s Motion to Compel (Dkt #102), filed May 7, 2012.
For the reasons that follow, Defendants’ Motion to Dismiss is
granted. Plaintiff’s pending motions are denied as moot in light of
this disposition.
II.

Background
Plaintiff was transferred from Sullivan Correctional Facility

in June 2007, to Attica, allegedly in retaliation for being a
“writer” (an inmate who files many grievances) and “doing his job”
on the Inmate Liaison Committee. Dkt #1 at 7.1 Upon arrival at

1

Documentation submitted by Plaintiff reveals, however, that
Plaintiff wished to be moved to a facility nearer to his home, and
Attica was closer than Clinton. See Dkt #1 (attachments).
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Attica, Plaintiff states, he was “tagged as a ‘writer’” as well as
a “rapo’” because he is a convicted sex offender. Id. According to
Plaintiff, two weeks after his arrival, staff at Attica began a
campaign

of

harassment

and

retaliation,

leading

him

to

file

numerous grievances and ultimately this lawsuit.
Plaintiff’s supporting allegations cover a number of disparate
topics. To avoid unnecessary repetition, the facts pertinent to the
alleged constitutional violations will be set forth below in the
sections addressing Plaintiff’s specific claims.
III. General Legal Principles
A.

42 U.S.C. § 1983

In order to state a claim under 42 U.S.C. § 1983, the
plaintiff

must

establish

the

following

elements:

(1)

conduct

attributable at least in part to a person acting under color of
state law, and (2) deprivation, as the result of the challenged
conduct,

of

a

right,

privilege,

or

immunity

secured

by

the

Constitution or laws of the United States. Dwares v. City of
New York, 985 F.2d 94, 98 (2d Cir.1993).
B.

Motions to Dismiss Under F.R.C.P. 12(b)(6) & 12(c)

Defendants cite both Rule 12(b)(6) and Rule 12(c) in support
of their motion to dismiss. Because Defendants have filed an Answer
to the Complaint, it appears that this motion is more appropriately
made pursuant to Rule 12(c). The Court need not decide the issue
because in deciding a Rule 12(c) motion, the same standard as that
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applicable to a motion under Rule 12(b)(6) is applied. Desiano v.
Warner–Lambert & Co., 467 F.3d 85, 89 (2d Cir. 2006).
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides
that a complaint may be dismissed for “failure to state a claim
upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). To
survive a motion to dismiss, “a complaint must contain sufficient
factual matter . . . to ‘state a claim to relief that is plausible
on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, ___, 129 S.Ct.
1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v.
Twombly,

550

U.S.

544,

570

(2007)).

“A

claim

has

facial

plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S.
at 556).

Thus, unless a plaintiff’s well-pleaded allegations have

“nudged [his] claims across the line from conceivable to plausible,
[the plaintiff’s] complaint must be dismissed.” Twombly, 550 U.S.
at 570. The Court must liberally construe all claims, accept all
factual

allegations

in

the

complaint

as

true,

and

draw

all

reasonable inferences in favor of the plaintiff. E.g., Roth v.
Jennings, 489 F.3d 499, 510 (2d Cir. 2007); Cargo Partner AG v.
Albatrans, Inc., 352 F.3d 41, 44 (2d Cir. 2003).
IV.

Discussion
Before proceeding, the Court notes that in his Complaint,

Plaintiff indicates that the constitutional bases for all his

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claims are as follows:

“Violation of Article’s [sic] 3., 5., 7.,

12. and 25[.]” Dkt #1 (passim). It is unclear what Hogan intends to
convey by this statement. Construing these numbers to refer to
amendments rather than articles similarly does not clarify the
legal bases for his claims. The Court thus has attempted to give
the broadest possible meaning to the allegations in Plaintiff’s pro
se papers.
A.

Verbal Harassment (Second Claim)

Hogan’s second claim alleges that throughout his stay at
Attica,

he

“has

been

continuously

harassed

by

staff”

and

Superintendent Conway and DSS Chappius failed to prevent or remedy
the situaton. Defendants argue that Hogan has failed to state a
claim because he has not sufficiently alleged personal involvement
by Conway and Chappius. See Farrell v. Burke, 449 F.3d 470, 474
(2d Cir. 2006) (“[P]ersonal involvement of defendants in alleged
constitutional deprivations is a prerequisite to an award of
damages under § 1983.”) (citation omitted). Defendants also contend
that verbal harassment alone is not actionable under § 1983.
The Court agrees with Defendants that even if there was
personal involvement by Chappius and Conway, allegations of verbal
harassment, standing alone, are not redressable under 42 U.S.C.
§ 1983. See, e.g., Purcell v. Coughlin, 790 F.2d 263, 265 (2d Cir.
1996) (“The claim that a prison guard called [plaintiff] names also

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did

not

allege

any

appreciable

injury

and

was

properly

dismissed.”).
C.

Failure to Prevent Theft of Personal Property (Third
Claim)

Hogan alleges that on February 17, 2008, his cell was robbed
of certain personal property, and that Conway and Chappius “allowed
this to happen.” Plaintiff states that during a “bar check” of his
cell, the cell door was purposely left open so that the inmate
porters could steal his things.
As Defendants argue, even if Hogan had adequately alleged any
personal involvement by Conway and Chappius, the claim still would
be

fatally

defective.

Even

an

intentional

deprivation

of

an

inmate’s property that is random and unauthorized does not give
rise

to

a

due

process

claim

so

long

as

“adequate

state

post-deprivation remedies are available.” Hudson v. Palmer, 468
U.S. 517, 533 (1984). New York law provides such a remedy in the
form of an action before the New York Court of Claims. See N.Y. Ct.
Cl. Act § 9.2 Therefore, Hogan does not have a constitutional claim
against Chappius and Conway for the theft of his personal property.
See Dorsey v. Fisher, 9:09-CV-1011GLSD, 2010 WL 2008966, at *10-11
(N.D.N.Y. May 19, 2010) (“Dorsey does not clearly allege which of
the twenty-five defendants named in his amended complaint were

2

Hogan, in fact, has filed numerous complaints in the Court of
Claims.
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actually responsible for the theft of his property from his cell.
Dorsey merely alleges that the defendants allowed inmate porters
into his

cell

to

steal

property. .

.

.

Even

if

Dorsey

had

identified which particular defendant was responsible for the
theft, his claim would still fail” because “New York law provides
. . . a remedy in the form of an action before the New York Court
of Claims.”) (citing Hudson, 468 U.S. at 533; other citations
omitted).
D.

Theft of Magazine Subscriptions (Fourth Claim)

As his fourth cause of action, Hogan alleges that Corrections
Officer (“CO”) Erhardt, Superintendent Conway, and DSS Chappius
“allowed the theft of [his] magazine subscriptions by allowing
inmates to pass them out.” This claims must be dismissed because
Hogan has an adequate state-law remedy for the alleged unlawful
deprivation of his personal property. See Dorsey, 2010 WL 2008966,
at *11.
E.

Property Damage (Fifth Claim)

Hogan alleges, in support of his fifth cause of action, that
CO Biekert “knocked [his] tv to the flor[,] damaging it” on
February 14, 2009. This claims must be dismissed because Hogan has
an adequate state-law remedy for the alleged unlawful damage to his
personal property. See Dorsey, 2010 WL 2008966, at *11.

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F.

Assault (Fifth, Sixth, Seventh, Eighth, and Ninth Claims)

Plaintiff’s fifth, sixth, seventh, eighth, and ninth claims
all relate to an incident that occurred on February 15, 2009, in
which Plaintiff alleges that he was sprayed in his face, mouth,
nose,

ears,

and

on

the

rest

of

his

body,

with

an

“unknown

substance” possibly consisting of vinegar and feces. According to
his grievance, three corrections officers came into his cell after
lockdown and sprayed him while he was lying in bed. Plaintiff
stated in his grievance that other inmates saw three officers with
brown paper bags over their heads with eye-holes cut out running
away from the area. Plaintiff was able to knock one of the bottles
out of their hands, and it appeared to contain machine oil.
Plaintiff, contends, he was sprayed with a different substance (the
possible vinegar-feces mixture), which burned his eyes.
Plaintiff contends that Erhardt, the gallery officer, opened
gallery gate or gave the keys to another officer, thereby allowing
Plaintiff be assaulted. In addition to Erhardt, Plaintiff names
three “John Doe” corrections officers as his assailants and several
“John Doe” officers as supervisors liable for failing to prevent
the assault. Even if Plaintiff adequately had alleged personal
involvement, these claims premised on the spraying incident all
must fail as Plaintiff has not demonstrated more than a de minimis
injury.

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The

Eighth

Amendment’s

prohibition

of

cruel

and

usual

punishments necessarily excludes from constitutional recognition de
minimis uses of physical force, provided that the use of force is
not of a sort repugnant to the conscience of mankind.”

Hudson v.

McMillian, 503 U.S. 1, 6-7 (1992). The force used here was de
minimis. See Tafari v. McCarthy, 714 F. Supp.2d 317, 341 (N.D.N.Y.
2010) (corrections officer’s throwing of urine and feces on inmate
while he was sleeping constituted a de minimis use of force).

“The

question, then, is whether the force used was ‘of a sort repugnant
to the conscience of mankind.’” Tafari, 714 F. Supp.2d at 341
(quoting ). Spraying someone with feces and vinegar is “certainly
repulsive,” but it “is not sufficiently severe to be considered
‘repugnant to the conscience of mankind.’” Id. (citing, inter alia,
Fackler v. Dillard, No. 06-10466, 2006 U.S. Dist. LEXIS 61480, 2006
WL 2404498, at *1 (E.D. Mich. Aug. 16, 2006) (holding that an
officer who threw a four-ounce cup of urine on an inmate which
caused no physical injury “was not so grievous as to rise to the
level of an Eighth Amendment violation”)).
With regard to the corrections officers who allegedly failed
to protect Hogan from the assault, the Court notes that “[l]aw
enforcement officials can be held liable under § 1983 for not
intervening in a situation where excessive force is being used by
another officer.” Jean-Laurent v. Wilkinson, 540 F. Supp.2d 501,
512 (S.D.N.Y. 2008) (citing O’Neill v. Krzeminski, 839 F.2d 9,

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11–12 (2d Cir. 1988) (citations omitted)). Liability attaches only
when (1) the officer had a realistic opportunity to intervene and
prevent the harm; (2) a reasonable person in the officer’s position
would know that the victim’s constitutional rights were being
violated; and (3) the officer does not take reasonable steps to
intervene. Ricciuti v. N.Y. City Transit Auth., 124 F.3d 123, 129
(2d Cir. 1997)). A corrections officer cannot be held liable for
the failure to intercede unless such failure permitted fellow
officers to violate an inmate’s “clearly established statutory or
constitutional rights” of which a reasonable person would have
known. Id. at 129. Here, as discussed above, the spraying of a
noxious substance did not constitute an unconstitutional use of
force as defined in Eighth Amendment jurisprudence. Therefore,
supervisory liability does not attach.
G.

Failure To Provide Medical Treatment (Tenth, Eleventh,
and Twelfth Claims)

The tenth claim alleges that John Doe #7, a corrections
officer, “refused Plaintiff medical attention” after the spraying
incident. The eleventh claim alleges that Jane Doe #1, “who was the
nurse writing the treatment plan, refused to treat Plaintiff or
schedule any testing . . . scheduling [sic] him to see the doctor.”
The twelfth claim asserts that Jane Doe #2, “who was the examining
nurse, refused to acknowledge any of Plaintiffs [sic] injuries and
refused

any

treatment

for

said

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injuries.”

The

only

physical

injuries

that

Hogan

noted

after

the

spraying

were

(1)

a

“cut/scratch” on his neck which he claims had to have occurred
during the struggle for the spraybottle’s nozzle, see Dkt #1, Ex.
18, and a “burn mark on [his] penis from the oil-like substance[,]:
id., Ex. 19.
To maintain a claim for deliberate medical indifference, Ford
must

prove

“deliberate

indifference

to

[his]

serious

medical

needs.” Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994), cert.
denied, 513 U.S. 1154 (1995) (quotation omitted). This standard
requires proof of objective and subjective prongs. Id. (citation
omitted). As an initial matter, the documentation Plaintiff has
submitted in support of his Complaint belies his claim that he did
not receive medical treatment. He states in his grievance that a
9:00 a.m. the morning after the spraying, he went to medical unit.
Two nurses “checked out [his] injuries” and called for a Mental
Health Unit nurse to come see him. Dkt #1, Ex. 19. The only injury
referenced in his narrative regarding his check-up with the nurses
is the alleged burn mark on his penis. One of the nurses looked at
it said it appeared to be a “fungi”, not a burn, but Plaintiff
maintains it was not there before the assault. Plaintiff states
that the nurses did not treat the fungi/burn mark. Id. Accepting
Plaintiff’s allegations as true, they fall far short of the mark
and do not establish that the John Doe supervisor or the Jane Doe
nurses were deliberately indifferent to a serious medical need

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presented by him. See Sonds v. St. Barnabas Hosp. Corr. Health
Servs., 151 F. Supp.2d 303, 311 (S.D.N.Y. 2001) (cut finger with
“skin ripped off” is insufficiently serious for purposes of an
Eighth Amendment deliberate indifference claim).
H.

Excessive Use Of Force (Thirteenth and Fourteenth Claims)

Plaintiff

alleges

that

on

February

16,

2009,

CO

Gefert

assaulted him by lightly slapping him on the face. Plaintiff
further alleges that Sergeant Balcer, the area supervisor, failed
to intervene and allowed Plaintiff to be slapped. Plaintiff does
not allege that Sergeant Balcer slapped him.
Plaintiff has not stated a cognizable constitutional claim, as
a “light slap” constitutes a de minimis use of force, not repugnant
to the conscience of mankind. See Jones v. Goord, 2008 WL 904895,
at *4 (W.D.N.Y. 2008) (“At most, plaintiff was struck by an openhanded slap, which, regardless of defendant [officer’s] motivation,
is considered a de minimis use of force.”); Santiago v. CO Campisi
Shield No. 4592, 91 F. Supp.2d 665, 674 (S.D.N.Y. 2000). Because
the “light slap” did not constitute an unconstitutional use of
force as defined in Eighth Amendment jurisprudence, supervisory
liability does not attach.
I.
Hogan

Failure To Install Surveillance Cameras (Fifteenth Claim)
alleges

that

Superintendent

Conway

“refused

to

acknowledge that cameras are needed throughout” Attica in order to
protect inmates from abuse by prison staff. Plaintiff alleges that

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this issue has been raised repeatedly in Inmate Liaison Committee
executive meetings. Plaintiff asserts that if the appropriate
cameras had been in place, they would have acted as a deterrent and
the spraying incident would not have occurred.
In

this

knowledge

of

case,
a

there

dangerous

are

no

allegations

situation

with

that

regard

Conway

to

had

Hogan

in

particular and failed to act; that he was aware of a specific
dangerous condition on Hogan’s cell block; that he was aware of
other similar assaults; or that he was in the vicinity during the
assault and failed to come to Hogan’s aid. Instead, Hogan is
relying upon the dangerous conditions in general existing at
Attica, stating that there is “massive abuse” of inmates by the
staff. These allegations are insufficient to state

a claim based

upon the theory of failure to protect against the general threat of
harm. Coronado v. Goord, No. 99CIV. 1674(RWS), 2000 WL 1372834,
at*6 (S.D.N.Y. Sept. 25, 2000) (stating that in order to make out
a failure to protect against general violence, inmate who was
stabbed by another inmate in the recreation yard had to plead facts
stating five elements, including, that there were numerous other
inmate-on-inmate

attacks

in

the

yard;

these

attacks

posed

a

substantial risk of serious harm; and that if prison officials had
installed metal detectors and preventively searched inmates for
weapons, the inmate would not have been stabbed).

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J.

Verbal Harassment (Sixteenth Claim)

On February 21, 2009, Plaintiff alleges that CO Piechowicz
walked by his cell and threatened him with death by stating,
“You’re dead Hogan, you fucking rat fuck.” Dkt #1, Ex. 20. To the
extent Hogan seeks to assert a claim of verbal abuse, the Court
notes that verbal harassment or profanity alone, no matter how
inappropriate, unprofessional, or reprehensible it might seem, when
it is unaccompanied by any quantifiable injury, does not constitute
the violation of a federally protected right, and therefore is not
actionable under 42 U.S.C. § 1983. See Aziz Zarif Shabazz v. Pico,
994 F. Supp. 460,

475 (S.D.N.Y. 1998) (dismissing claim by prison

inmate that prison employees had verbally taunted him with racial
slurs and threats of physical injury (e.g., “We have been waiting
on you a very long time, and we are going to kill your ‘black ass'
when you come out if you do not voluntarily submit to and comply
with the strip search procedure”), standing alone, did not allege
violation of any federally protected right, and did not support
claim under § 1983); see generally Purcell v. Coughlin, 790 F.2d at
265.
V.

Conclusion
Defendants’ Motion to Dismiss (Dkt #61) is granted, and

Plaintiff’s Complaint (Dkt #1) is dismissed in its entirety with
prejudice.

Plaintiff’s

Motion

to

Strike

Respondent’s

Answer

(Dkt #11), Plaintiff’s Motion for Default Judgment (Dkt #59),

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Plaintiff’s Motion for Summary Judgment (Dkt #60), Plaintiff’s
Motion to Allow Reply (Dkt #72), Motion to Strike (Dkt #73), Motion
for Time (Dkt #74), and Plaintiff’s Motion to Compel (Dkt #102) are
dismissed as moot.
The Clerk of the Court is directed to close this case.
SO ORDERED.

S/Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:

October 10, 2012
Rochester, New York

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