Frederick v. Shehan et al

Filing 64

-CLERK TO FOLLOW UP- DECISION AND ORDER granting in part and denying in part 52 Motion for Summary Judgment. Defendants request to dismiss the entire amended complaint because it alleges only official capacity claims against Defendants is denied a s moot in light of Plaintiffs recent, unopposed amendment of the amended claim to specifically indicate that he is suing all Defendants in their individual capacities. Defendants request to dismiss Plaintiffs claims against Defendants in their offic ial capacities is granted. Defendants request to dismiss Plaintiffs claims against Acting Supt. Sheahan (failure to investigate grievances and supervisory liability for alleged due process errors by CHO Esgrow during the disciplinary hearing) based on their lack of personal involvement is granted. Defendants request to dismiss Plaintiffs claim against Sgt. Holton (failure to supervise) is denied without prejudice with leave to renew. Accordingly, Acting Supt. Sheahan is terminated as a Defenda nt from this action. Defendants request to dismiss the due process claim against CO Murphy for filing a false misbehavior report is granted. The following claims and Defendant remain pending: excessive use of force in violation of the Eighth Amendme nt against CO Vandergrift, CO Murphy, CO Robinson, and CO Robyck; failure to supervise against Sgt. Holton. The Clerk of the Court is requested to terminate Acting Supt. Sheahan as a defendant and to amend the caption accordingly. Signed by Hon. Michael A. Telesca on 7/29/14. (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
MICHAEL FREDERICK,
DECISION AND ORDER
No. 6:10-CV-6527(MAT)

Plaintiff,
-vsMICHAEL SHEAHAN, et al.,
Defendants.

I.

Introduction
Pro

se

plaintiff

Michael

Frederick

(“Frederick”

or

“Plaintiff”), an inmate in the custody of the New York Department
of Corrections and Community Supervision (“DOCCS”), instituted this
action pursuant to 42 U.S.C. § 1983, alleging violations of his
constitutional rights

while in DOCCS’ custody. In his amended

complaint [#4]1, Plaintiff names the following individual as being
responsible for the constitutional violations alleged: Corrections
Officer Mark Vandergrift (“CO Vandergrift”); CO Patrick Murphy
(“CO Murphy”); CO Michael Robyck (“CO Robyck”); CO J. Robinson
(“CO Robinson”); Corrections Sergeant D. Holton (“Sgt. Holton”);
and Acting Superintendent Michael Sheahan (“Acting Supt. Sheahan”).
Defendants

have

filed

a

motion

for

summary

judgment,

which

Plaintiff has opposed. For the reasons set forth below, Defendants’
motion for summary judgment is granted in part and denied in part.

1

Citations to [# ] refer to document numbers on this case’s
CM/ECF docket sheet.
-1-

II.

Factual Background
The following facts—viewed in the light most favorable to

Plaintiff—are gleaned from the pleadings and from the parties’
submissions
motion.

in

conjunction

with

Defendants’

summary

judgment

See, e.g., Lipton v. Nature Co., 71 F.3d 464, 471 (2d Cir.

1995) (“For the purposes of a summary judgment motion, courts are
required to view the facts in the light most favorable to the
parties

opposing

the

motion

and

to

suspend

judgments

on

credibility.”).
In November of 2009, Plaintiff had a verbal “altercation” with
Southport Correctional Facility Nurse Deborah Allen. Ten minutes
later, he was “threatened” by CO Vandergrift.
On December 2, 2009, Plaintiff and the other inmates locking
on C-11 Gallery were ordered to submit to an institutional search.
Officer Frisbee, who is not a party to this action, and another,
unidentified officer, came to Plaintiff’s cell and ordered him to
turn around to be handcuffed.
After Plaintiff was handcuffed, the cell door opened, and he
waited to follow the officers’ commands. Instead, Plaintiff was
shoved away from the door and pushed so he fell on the bed. Turning
around, Plaintiff saw CO Vandergrift, who stated, “I told you I
will be back for you.” Plaintiff’s Declaration in Opposition to
Defendants’ Motion for Summary Judgment (“Pl’s Decl.”) [#58], ¶ 6.
CO Vandergrift then turned Plaintiff around and punched him in the

-2-

face multiple times, while several officers (CO Murphy, CO Robyck,
and CO Robinson) held his ankles, legs, and feet. The officers then
began striking Plaintiff on his bare feet with their batons.
Plaintiff estimates that this assault lasted for approximately
5 minutes. CO Vandergrift, CO Murphy, CO Robyck, and CO Robinson
then brought him to the front of his cell, where CO Vandergrift
“wrapped his hand around [Plaintiff’s] neck and started choking him
until [Plaintiff] passed out.” Pl’s Decl., ¶ 9.
After that, Plaintiff “remembered being dragged down the
company and brought to a shower stall.” Id. His injuries were
photographed, and he was underwent a medical exam at the facility
infirmary. In the section of the “Unusual Incident Report (“UIR”)”
titled “Medical Report,” DOCCS medical staff described Plaintiff’s
injuries as follows: A 4" by 3" red mark on the left side of his
neck with no observed swelling, bruising, pain, welts or open
areas; a bloodshot left eye, with no swelling, bruises, or pain
noted; complaints of pain in left ankle and left wrist with no sign
of injury noted in either area. See UIR at 2, attached as part of
Exhibit (“Ex.”) A to Defendants’ Continuation of Rule 26 Disclosure
[#25]. The Court notes that these injuries, observed by DOCCS’
medical staff, are not inconsistent with Plaintiff’s assertion that
he was choked by CO Murphy (the welt on his neck and bloodshot eye)
and struck on his ankles and feet with batons (pain in his ankle
area). The Court also notes that CO Murphy’s description of how the

-3-

event occurred does not account for any of Plaintiff’s injuries.
According to CO Murphy, he used a “body hold” to force Plaintiff to
the back wall after Plaintiff attempted to “head-butt” him. As
Plaintiff allegedly resisted, CO Robinson assisted in attempting to
restrain Plaintiff, who “went off the bed and onto the floor”. Id.
CO Robyck responded and applied leg restraints, and Sgt. Holton was
called to the area. Id.
CO Murphy subsequently filed a misbehavior report against
Plaintiff charging him with attempting to assault staff, violent
conduct,

and

refusing

a

direct

order.

Plaintiff

states

that

contrary to the accusations that he tried to head-butt CO Murphy,
he did not attempt to assault any of the officers, resist them, or
threaten them. Rather, Plaintiff asserts, he laid on his bed and
tried to protect his face from the officers’ blows.
On December 9, 2009, a Tier III disciplinary hearing was held
before Commissioner’s Hearing Officer James Esgrow (“CHO Esgrow”).
The only non-party witness called was CO Murphy. After finding
Plaintiff guilty as charged, CHO Esgrow sentenced him principally
to 6 months in the special housing unit (“SHU”), and recommended a
loss of 3 months of good time credits. CHO Esgrow’s ruling and the
sentence were upheld on administrative appeal.

-4-

III. General Legal Principles
A.

Section 1983

Section 1983 authorizes an individual who has been deprived
of a federal right under the color of state law to seek relief
through

“an

action

at

law,

suit

in

equity,

or

other

proper

proceeding for redress.” City of Monterey v. Del Monte Dunes at
Monterey, Ltd., 526 U.S. 687, 707 (1999). Two essential elements
comprise a Section 1983 claim: (1) the defendant acted under color
of state law; and (2) as a result of the defendant’s actions, the
plaintiff suffered a denial of his federal statutory rights, or his
constitutional

rights

or

privileges.

Annis

v.

County

of

Westchester, 136 F.3d 239, 245 (2d Cir. 1998) (citation omitted).
To bring a § 1983 claim against a prison official, a plaintiff
must allege that individual’s personal involvement; it is not
enough to simply assert that the defendant is a “link in the prison
chain of command.” McKenna v. Wright, 386 F.3d 432, 437 (2d Cir.
2004) (quotation omitted). “[S]upervisor liability in a § 1983
action depends on a showing of some personal responsibility, and
cannot rest on respondeat superior.” Hernandez v. Keane, 341 F.3d
137, 144 (2d Cir. 2003) (citation omitted); accord Richardson v.
Goord, 347 F.3d 431, 435 (2d Cir. 2003). Because “respondeat
superior liability does not lie against corrections officers in
Section 1983 actions[,]” “[a] plaintiff must thus allege a tangible
connection

between

the

acts

of

-5-

a

defendant

and

the

injuries

suffered.” Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1983)
(internal citation omitted).
In the Second Circuit, supervisory personnel may be considered
“personally involved” if they (1) directly participated in the
violation; (2) failed to remedy that violation after learning of it
through a report or appeal; (3) created, or allowed to continue, a
policy or custom under which the violation occurred, (4) had been
grossly

negligent

in

managing

subordinates

who

caused

the

violation; or (5) exhibited deliberate indifference to the rights
of inmates by failing to act on information indicating that the
violation was occurring. Colon v. Coughlin, 58 F.3d 865, 873
(2d Cir. 1995).
B.

Summary Judgment Standard

Summary

judgment

is

appropriate

“if

the

pleadings,

depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled
to judgment as a matter of law.” FED. R. CIV. P. 56(c). Initially,
the moving party must show that there is “an absence of evidence to
support the non-moving party’s case.” Celotex Corp. v. Catrett, 477
U.S. 317, 325 (1986). Once the moving party has carried its burden,
the opposing party must set forth “specific facts showing that
there is a genuine issue for trial[,]” FED. R. CIV. P. 56(e), and
must introduce evidence beyond the mere pleadings to show that

-6-

there is an issue of material fact concerning “an element essential
to that party’s case, and on which that party will bear the burden
of proof at trial.” Celotex, 477 U.S. at 322.
A material fact is genuinely in dispute “if the evidence is
such

that

a

reasonable

jury

could

return

a

verdict

for

the

nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). The reviewing court resolves “all ambiguities and
draw[s] all inferences in favor of the nonmoving party in order to
determine how a reasonable jury would decide.” Aldrich v. Randolph
Cent. Sch. Dist., 963 F.2d 520, 523 (2d Cir. 1992) (citation
omitted). Thus, “[o]nly when reasonable minds could not differ as
to the import of the evidence is summary judgment proper.” Bryant
v. Maffucci, 923 F.2d 979, 982 (2d Cir.) (citing Anderson, 477 U.S.
at 250–51), cert. denied, 502 U.S. 849 (1991). If, “as to the issue
on which summary judgment is sought, there is any evidence in the
record from which a reasonable inference could be drawn in favor of
the opposing party, summary judgment is improper.” Security Ins.
Co. of Hartford v. Old Dominion Freight Line Inc., 391 F.3d 77, 83
(2d Cir. 2004) (quotation omitted).
IV.

Discussion
A.

Eleventh Amendment Bar to Official Capacity Claims

Defendants moved to dismiss the entire amended complaint
because Plaintiff had asserted claims against Defendants in their
official capacities, and the Eleventh Amendment bars suits for
-7-

damages

against

state

officials

acting

in

their

official

capacities. See Farid v. Smith, 850 F.2d 917, 921 (2d Cir.1988)
(“The eleventh amendment bars recovery against an employee who is
sued in his official capacity, but does not protect him from
personal liability if he is sued in his ‘individual’ or ‘personal’
capacity.”). Plaintiff subsequently filed a motion to amend so as
to correct this pleading deficiency, and Defendants did not oppose
the motion. The Court granted permission to amend the amended
complaint to assert all of the claims against Defendants in their
individual capacities. However, the Court agrees with Defendants
that to the extent the amended complaint asserts claims against
them in their official capacities, such claims are barred by the
Eleventh

Amendment

and

are

dismissed.

See,

e.g.,

Davis

v.

New York, 316 F.3d 93, 101 (2d Cir. 2002) (affirming dismissal of
plaintiff’s claims for damages against all of the individual DOCCS
defendants in their official capacities as barred by the Eleventh
Amendment).
B.

Due Process Claim Against CO Murphy for Filing a False
Misbehavior Report

Plaintiff asserts that CO Murphy violated his 14th and 8th
Amendment rights “by falsifying a misbehavior report by maliciously
and sadistically causing harm in relation to the ordinary incident
of prison life.” See Amended Complaint (“AC”) [#4], “Paragraph
(“Par.”) 6.” The remainder of “Paragraph 6” concerns CO Murphy’s

-8-

allegedly excessive use of force against Plaintiff and provides no
further particulars about the alleged falsification. During his
deposition, Plaintiff testified that he did not know why CO Murphy
might have

filed

a false

report

against

him.

See

Deposition

Transcript of Michael Frederick (“Frederick Tr.”) at 69:16-21,
attached as Exhibit A to the Declaration of Bernard Sheehan, Esq.
[#52-3].
Defendants argue that the filing of a false misbehavior report
is not an actionable constitutional claim. See Freeman v. Rideout,
808

F.2d

949,

952

(2d

Cir.

1986)

(“An

inmate

“has

no

constitutionally guaranteed immunity from being falsely or wrongly
accused of conduct which may result in the deprivation of a
protected liberty interest.”), cert. denied, 485 U.S. 982 (1988);
see also Boddie v. Schneider, 105 F.3d 857, 862 (2d Cir. 1997).
Instead, to maintain a viable constitutional claim against a
correction officer for filing a false misbehavior report, the
inmate must be able to show either that (1) as a result of the
report, he was disciplined without due process of law; or (2) the
report was issued in retaliation for the inmate’s exercise of a
constitutionally protected right. Montero v. Crusie, 153 F. Supp.2d
368, 376 n.3 (S.D.N.Y. 2001) (citing Jones v. Coughlin, 45 F.3d
677, 679-80 (2d Cir. 1995) (discussion Freeman, supra and Franco v.
Kelly, 854 F.2d 584, 589 (2d Cir. 1988)).

-9-

With regard to the first exception, Frederick has argued that
he was not able to mount a meaningful challenge to the misbehavior
report because there were procedural defects during the ensuing
disciplinary hearing. However, as discussed further below, the
Court finds that Frederick has failed to raise a triable issue of
fact with regard to his due process claim based on the disciplinary
hearing. Therefore, his false misbehavior claim also must fail. See
Taylor v. Macomber, No. 97 Civ. 4127(DAB), 1999 WL 349696, at *4
(S.D.N.Y. May 27, 1999) (“As there is no allegation of either
retaliation or a constitutionally defective disciplinary hearing,
Plaintiff’s due process claim, that [the prison employee] violated
his due process rights when he filed a false misbehavior report
against him, is dismissed.”).
With regard to the second instance where a misbehavior report
may be actionable, the plaintiff must demonstrate that it was filed
in retaliation for engaging in constitutionally protected activity.
Frederick’s pleadings suggest that CO Murphy was upset about the
“altercation” Frederick had, several weeks prior to the use of
force incident, with Nurse Allen; and that CO Murphy, by assaulting
him and filing the false misbehavior report, was “making good” on
his threat that he would “be back for” Plaintiff. Even assuming
that CO Murphy had a retaliatory motive, Plaintiff has failed to
assert, as an underlying matter, that the retaliation was in
response to any constitutionally protected activity by Plaintiff,

-10-

much

less

that

Plaintiff

actually

had

engaged

in

any

constitutionally protected activity. See Allen v. City of N.Y., 480
F. Supp.2d 689, 722 (S.D.N.Y. 2007) (dismissing inmate’s claim
based on false misbehavior report because, although inmate seemed
to suggest that report was retaliatory, he failed to assert, as an
underlying

matter,

that

he

engaged

in

any

constitutionally

protected activity).
C.

Due Process Claim Against Acting Supt. Sheahan

Plaintiff asserts that Acting Supt. Sheahan violated his due
process rights by failing to ensure that he was

provided with

certain documents at the disciplinary hearing held with regard to
CO Murphy’s allegedly false misbehavior report. See Amend. Compl.,
“Par. 9.” In particular, Plaintiff asserts that he was entitled to
receive

“unusual

incident

reports”,

“use

of

force

reports”,

“‘to/from’ memoranda”, and photographs taken after the use of force
incident. See id. However, Supt. Sheahan did not conduct the
disciplinary hearing. Rather, Commissioner’s Hearing Officer James
Esgrow (“CHO Esgrow”) presided over the hearing. See Transcript of
Tier III Hearing (“Hearing Tr.”) at D000036, attached as Exhibit
(“Ex.”) B to the Declaration of Bernard Sheahan, Esq. [#52-3]. The
Court reads Plaintiff’s allegations to suggest that Acting Supt.
Sheahan is liable based upon his supervisory position over CHO
Esgrow, and based upon the fact that he affirmed CHO Esgrow’s
disciplinary ruling. As discussed further below, the Court agrees
-11-

with Defendants that Plaintiff has not established an adequate
basis for liability against Acting Supt. Sheahan.
1.

Liability Based on Supervisory Position

Plaintiff’s first theory of liability against Acting Supt.
Sheahan is based on his supervisory position in the Southport chain
of command. However, in a § 1983 action, “the general doctrine of
respondeat superior does not suffice and a showing of some personal
responsibility of the defendant is required.” Johnson v. Glick, 481
F.2d 1028, 1034 (2d Cir.), cert. denied, 414 U.S. 1033 (1973).
Plaintiff’s claim for money damages against Acting Supt. Sheahan
“requires a showing of more than the linkage in the prison chain of
command. . . .” Ayers v. Coughlin, 780 F.2d 205, 210 (2d Cir. 1985)
(per curiam). Accordingly, this theory of liability fails as a
matter of law.
2.

Liability
Based
on
Disciplinary Ruling

the

Affirmance

of

the

Acting Supt. Sheahan, by affirming CHO Esgrow’s disciplinary
ruling, only can be liable if CHO Esgrow violated Plaintiff’s due
process rights at the hearing. See Clyde v. Schoellkopf, 714 F.
Supp.2d 432, 439 (W.D.N.Y. 2010) (where inmate’s claim against
superintendent

was

premised

on

official’s

affirmance

of

his

disciplinary hearing, inmate had to show that hearing did not
comport with due process) (citations omitted).
“With

respect

to

any

due

process

claim—substantive

or

procedural—‘[t]he threshold issue is always whether the plaintiff
-12-

has a property or liberty interest protected by the Constitution.’”
Gulley v. Roach, No. 02–CV–908S, 2004 WL 2331922, at *4 (W.D.N.Y.
Oct. 15, 2004) (quoting Narumanchi v. Board of Trustees of Conn.
State Univ., 850 F.2d 70, 72 (2d Cir. 1988)). Here, the Court
assumes for purposes of resolving this motion that Plaintiff had a
protected liberty interest in avoiding confinement in SHU for six
months (180 days) and receiving a recommendation for the loss of
three months good time credits. See Gulley, 2004 WL 2331922, at *8
(citing, inter alia, Moore v. Selsky, 900 F. Supp. 670, 673
(S.D.N.Y. 1995)).
The Supreme Court, in striking a balance between accommodating
an inmate’s liberty interests and the specific correctional and
institutional goals that disciplinary proceedings serve, see Wolff
v. McDonnell, 418 U.S. 539, 562-72 (1974), has held that an inmate
should ordinarily receive (1) advance written notice of the charges
against him to enable him to marshal the facts and prepare a
defense;

(2)

the

opportunity

to

call

witnesses

and

present

documentary evidence in his defense, when permitting him to do so
will

not

be

unduly

hazardous

to

institutional

safety

or

correctional goals; and (3) a short written statement presenting
the

reasons

and

evidence

supporting

any

disciplinary

action

ultimately taken. Id. at 563-67.
Plaintiff does not contest the notice he received, or complain
that he was not provided with a written statement of CHO Esgrow’s

-13-

reasoning. Rather, Plaintiff asserts that in his amended complaint
that he was denied access to certain documents (“unusual incident
reports”,

“use

of

force

reports”,

“‘to/from’

memoranda”,

and

photographs taken after the use of force incident) which would have
helped him prove his innocence. However, at the hearing, he did not
make any mention of this documentary material:
Esgrow: Ok. Ok. Mr. Frederick if you have nothing else
for me I’ll close the proof and make my decision. Do you
have anything else for me?
Frederick: That’s it.
Hearing Tr. at D000042. Later in the hearing, when CHO Esgrow
invited Plaintiff to make any objections to his disposition,
Plaintiff stated,
I would like to object to the hearing under 254.3 or 4,
Chapter V, assistance, assistance inadequate. And I would
like to object to the formal testimony of the officer
that you had to read him the report to recite the
statement of what he did. That’s my objections.
Id. at D000043. Again, Plaintiff did not allude in any way to the
documents he now claims were improperly withheld from him.
“Federal and state courts in this circuit have recognized that
an inmate’s silence can constitute a waiver” of due process rights
he might have at a disciplinary hearing. E.g., Bedoya v. Couglin,
91 F.3d 349, 352 (2d Cir. 1996) (right to call witnesses) (citing,
inter alia, Gomez v. Coughlin, 528 N.Y.S.2d 722, 723 (3d Dep’t
1988) (finding waiver where inmate “was specifically asked at the
hearing if he would like to have anything else considered, [and] he
replied in the negative”). Here, the disciplinary hearing proceeded
-14-

to a disposition without Plaintiff making any mention of the
documents he now claims were critical to his case. Plaintiff failed
to register any objection relating to the documents, despite being
asked specifically if he wished CHO Esgrow to consider anything
else, and he then acquiesced in CHO Esgrow’s closing of the proof.
The Court finds that these circumstances demonstrate a waiver of
any right Plaintiff may have had to obtain the documents. See
Bedoya, 91 F.3d 351, 353 (finding waiver of right to call witness
where hearing officer asked inmate whether he wanted to explore any
other issues during the hearing and inmate responded, “No, the only
thing I can add is you can be sure this will never happen again”;
inmate then acquiesced in decision to end the hearing). Therefore,
the Court finds that there was no denial of due process by CHO
Esgrow based on Plaintiff’s lack of access to the documentary
material cited above. Because the Court finds no error on the part
of CHO Esgrow in this regard, the Court necessarily finds that
Plaintiff’s due process claim against Acting Supt. Sheahan fails as
a matter of law. See, e.g., Black v. Selsky, 15 F. Supp.2d 311, 318
(W.D.N.Y. 1998) (because inmate’s constitutional claims against
hearing

officer

wrongdoing

was

were
based

meritless,
on

his

and

superintendent’s

affirming

the

hearing

alleged

officer’s

determination, there was no basis for inmates claims against
superintendent).

-15-

D.

Failure to Investigate by Acting Supt. Sheahan

Plaintiff asserts that Acting Supt. Sheahan violated his
constitutional rights by failing to conduct a proper investigation
into two grievances Plaintiff had filed (SPT-48304-09; SPT-4838009). According to Plaintiff, Acting Supt. Sheahan “didn’t do a
proper investigation . . . [o]f finding out why the area supervisor
[Sgt. Holton] wasn’t videotaping the—the frisk of the company . .
. because they didn’t have no [sic] video monitors in this jail.”
Frederick Tr. at 64:23-65:9. Plaintiff went on to explain that
although there are video monitors in certain areas, such as the
visitation

room,

there

are

no

video

monitors

in

any

of

the

galleries. Id. at 65:7-18. Based on Plaintiff’s own testimony, it
would have been impossible for Sgt. Holton, the area supervisor, to
videotape the gallery frisk because videotaping apparatus was not
available on the gallery. Therefore, it would have been pointless
for Acting Supt. Sheahan to inquire as to why the gallery frisk was
not being videotaped.
Plaintiff also assigns liability to Acting Supt. Sheahan in
connection with investigating his grievance that CO Murphy filed a
false misbehavior report against him. Plaintiff believes that he
should have been found not guilty because the whole incident was
frivolous, and Acting Supt. Sheahan should have seen “it was a
setup[.]” Frederick Tr. at 65:19-66:2.

-16-

“[I]nmate grievance programs created by state law are not
required by the Constitution and consequently allegations that
prison officials violated those procedures does not give rise to a
cognizable § 1983 claim.” Shell v. Brzezniak, 365 F. Supp.2d 362,
370 (W.D.N.Y. 2005) (citations omitted); see also Faison v. Hash,
No. 03-CV-6475P, 2004 WL 944523, at *3 (W.D.N.Y. Apr. 23, 2004)
(“Grievance procedures are the internal procedures and requirements
of the Department of Correctional Services, and as such, prison
inmates neither have a constitutionally protected right to a
grievance procedure[.]”) (citing Jones v. North Carolina Prisoners
Labor Union, 433 U.S. 119, 138 (1977) (Burger, J., concurring) (“I
do not suggest that the [grievance] procedures are constitutionally
mandated.”); other citations omitted). Essentially, Frederick is
claiming

that

Acting

Supt.

Sheahan’s

failure

to

decide

his

grievance in his favor violated his constitutional rights. Such a
claim does not form the basis for § 1983 relief. See, e.g.,
Espinosa v. McCabe, No. 10–CV–497 (MAD/DRH), 2012 WL 4108884, at
*16 (N.D.N.Y. Aug. 28, 2012) (“[T]o the extent Espinosa complains
about

the

mechanics

investigated,

or

of

decided,

how

his

such

Faison, 2004 WL 944523, at *3

grievance

contentions

was

are

initiated,

meritless.”);

(dismissing inmate’s § 1983 claim

against prison official regarding investigation into a grievance
where inmate did not allege “he failed to get the process he was

-17-

due” but was “claiming only that the result he got was not what he
wanted”).
D.

Personal Involvement by Acting Supt. Sheahan and Sgt.
Holton

Defendants argue that Plaintiff’s claims stemming from the UOF
incident must be dismissed as to Sgt. Holton and Acting Supt.
Sheahan because he has failed to raise a genuine issue of material
fact as to these officer’s personal involvement in the incident.
The claims regarding Acting Supt. Sheahan have been discussed above
in Sections IV.C and IV.D. Therefore, only Sgt. Holton’s liability
will be discussed below.
In his amended complaint, Plaintiff asserts that Sgt. Holton
violated

his

Eighth

Amendment

rights

by

“maliciously

and

sadistically causing harm to [Plaintiff] by not supervising the
gallery and witnessing all inmates being escorted out of our cell
[sic], by the officers conducting the institutional search. The
force used was not a necessary part of prison discipline.” Amend.
Compl., “Par. 8”.

At his deposition, Plaintiff explained that he

was suing Sgt. Holton because he was the area supervisor. Frederick
Tr.

at

66:16-18.

Plaintiff

admitted

that,

in

one

of

his

interrogatory responses, Sgt. Holton stated that he did not see
Plaintiff. Instead, Sgt. Holton indicated that he had come onto the
gallery but had left and was not there during the use-of-force
incident. Id. at 66:19-25. Plaintiff testified that he saw Sgt.
Holton walk

by

when

the

institutional
-18-

frisk

started,

but

he

admitted he did not see Sgt. Holton after that. Id. at 67:21-24;
67:1-20. Plaintiff stated, “I just felt that it was his duty to
observe prisoners coming out of their cell[s] since there’s no
cameras on the gallery.” Id. at 68:1-6.
The Court agrees with Defendants that Plaintiff essentially
has conceded Sgt. Holton’s lack of direct personal involvement in
the

use-of-force

Plaintiff’s

incident.

amended

However,

complaint.

Defendants

Plaintiff’s

have
claim

misread
against

Sgt. Holtin is, instead, a claim based on the failure to properly
supervise his subordinate officers (who allegedly attacked and beat
Plaintiff without provocation).
One of the ways that personal involvement can be shown,
according to Second Circuit case law, is where the defendant is
grossly

negligent

in

supervising

subordinates

who

committed

unconstitutional acts. Colon, 58 F.3d at 873. To support a finding
of personal involvement based on a failure to supervise, the fourth
Colon factor, Plaintiff must show that Sgt. Holton “knew or should
have

known

that

there

was

a

high

degree

of

risk

that

[his

subordinates] would behave inappropriately . . ., but either
deliberately or recklessly disregarded that risk by failing to take
action that a reasonable supervisor would find necessary to prevent
such a risk, and that failure caused a constitutional injury to
[Plaintiff].” Poe v. Leonard, 282 F.3d 123, 142 (2d Cir. 2002)
(citing, inter alia, McCann v. Coughlin, 698 F.2d 112, 125 (2d Cir.

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1983) (holding that a prison commissioner and superintendent could
be

held

liable

for

their

gross

negligence

and

deliberate

indifference to the constitutional rights of inmates, as indicated
by their having actual or constructive notice that unconstitutional
practices were taking place, and their failure to act on the basis
of this information)).
Plaintiff essentially is arguing that, in light of the fact
that there are no video cameras located in the
would

have

permitted

supervision

of

the

galleries which

corrections

officers

performing institutional searches, it was grossly negligent for
Sgt. Holton not to personally supervise his subordinate officers
while they conducted such searches so that he could ensure that
they not utilizing excessive force against the inmates. At this
juncture,

the

Court

declines

to

grant

summary

judgment

in

Sgt. Holton’s favor as to this claim, since he did not specifically
address or move to dismiss the failure to supervise claim.
V.

Conclusion
For the reasons set forth above, Defendants’ motion for

summary judgment is granted in part and denied in part. Defendants’
request to dismiss the entire amended complaint because it alleges
only official capacity claims against Defendants is denied as moot
in light of Plaintiff’s recent, unopposed amendment of the amended
claim to specifically indicate that he is suing all Defendants in
their individual capacities.

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Defendants’ request to dismiss Plaintiff’s claims against
Defendants in their official capacities is granted.
Defendants’ request to dismiss Plaintiff’s claims against
Acting

Supt.

Sheahan

(failure

to

investigate

grievances

and

supervisory liability for alleged due process errors by CHO Esgrow
during the disciplinary hearing) based on their lack of personal
involvement is granted. Defendants’ request to dismiss Plaintiff’s
claim against Sgt. Holton (failure to supervise) is denied without
prejudice with leave to renew.

Accordingly, Acting Supt. Sheahan

is terminated as a Defendant from this action.
Defendants’ request to dismiss the due process claim against
CO Murphy for filing a false misbehavior report is granted.
The following claims and Defendant remain pending: excessive
use of force in violation of the Eighth Amendment against CO
Vandergrift, CO Murphy, CO Robinson, and CO Robyck; failure to
supervise against Sgt. Holton.
The Clerk of the Court is requested to terminate Acting Supt.
Sheahan as a defendant and to amend the caption accordingly.
SO ORDERED.
S/Michael A. Telesca

HON. MICHAEL A. TELESCA
United States District Judge
DATED:

July 29, 2014
Rochester, New York

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