Douglas v. Annucci et al
DECISION AND ORDER granting in part and denying in part 15 Motion to Dismiss. Defendants application for judgment on the pleadings [#15] is granted in part and denied in part. Defendants request to dismiss Plaintiffs 8th Amendment failure-to-prot ect claim and his punitive-damages claim is denied, but their request to dismiss his demand for compensatory damages is granted pursuant to 42 U.S.C. § 1997e(e). Signed by Hon. Charles J. Siragusa on 11/6/17. Copy of this decision and order and NEF mailed to pro se plaintiff at Five Points. (KAP)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DECISION AND ORDER
ANTHONY ANNUCI, et al.,
This is an action under 42 U.S.C. § 1983 brought by Tracey Douglas (“Plaintiff”), a
prison inmate in the custody of the New York State Department of Corrections and
Community Supervision (“DOCCS”). Plaintiff alleges that Defendants failed to protect him
from attacks by other inmates. Now before the Court is Defendants’ motion for judgment
on the pleadings. (Docket No. [#15]). The application is granted in part and denied in part.
The reader is presumed to be familiar with the Court’s prior Decisions and Orders
in this action, which discuss the facts of the case in detail. It is sufficient to note that at all
relevant times, Plaintiff was incarcerated by DOCCS, and was serving a sentence for
robbery. The person whom Plaintiff was convicted of robbing was allegedly a high-ranking
member of the Bloods gang, which has many members incarcerated in DOCCS facilities
throughout New York. Plaintiff maintains that such gang members targeted him for violent
retaliation. In particular, Plaintiff contends that the Bloods slashed his face on five different
occasions during 2001, 2002, 2006 and 2008. Initially in this action, Plaintiff was seeking
to recover damages for alleged failures by DOCCS employees to protect him from those
attacks, but by Decision and Order dated July 14, 2016, the Court granted summary
judgment for Defendants as to those claims.1
However, Plaintiff also alleges that Defendants failed to adequately protect him after
he was transferred to Elmira Correctional Facility in 2013, and the Court denied
Defendant’s application for summary judgment as to that claim.
Regarding this sole surviving claim, Plaintiff maintains that at the time of such
transfer, Defendants were aware of the aforementioned past attacks on him, and were
aware that he was in continuing imminent danger of being assaulted again by Bloods gang
members, if any, at Elmira. The Complaint [#1] further states in pertinent part:
26. On July 5, 2013 I was once again sent to the very same facility (Elmira)
where I was assaulted (twice) and where the state is clearly aware of the
threat on my life (upon admission I was refused protective custody).
27. On August 1, 2013 I was finally approved for Protective Custody at
“Elmira.” After being in their general population for almost a month.
28. Placement in their protective custody unit was only granted after the
security officials became aware of specified threats to my life from their
The Complaint also indicates that even after Plaintiff was placed in protective custody at
Elmira, he was still required to pass through the general population areas of the facility
twice per day, in order to go to the infirmary. On this point, the Complaint states, in
32. Twice each day, eight in the morning and approximately eight at night,
I [was] escorted by an officer, sometimes a female officer, through the
inmate population of two housing areas, then to an infirmary in a separate
See, Docket No. [#12], Decision and Order (Telesca, J.).
building that [was accessed] from an outdoor entrance-way.
33. On most days prisoners are entering and exiting the infirmary, and or
crowded within the doorways during the escort.
34. On any one of th[o]se trips an inmate, (if he for whatever reason has
chosen to) can reach out and cut, stab or assault me in any number of ways,
and at most, [all that] the officer escorting me would or could do is “react” to
what has “already” taken place, but cannot “prevent’ the attempt on my life.
Despite Plaintiff’s concerns, he was never physically attacked while in protective custody
However, the Complaint indicates that Plaintiff suffered “mental and emotional
injuries” as a result of worrying about the potential threat of being attacked by Bloods gang
members at Elmira during such trips to and from the infirmary. In particular, the Complaint
indicates that Plaintiff’s days were “spent in fear” of being attacked; that he “suffer[ed] from
a constant and continuous nervous stomach”; that he “sometimes [went] days without
sleep”; and that he was so afraid when being escorted through the general population
areas that he could hear his own heart “in [his] ears.”2
The Complaint alleges that Plaintiff’s fear of being assaulted is sufficient to satisfy
the requirements of the 8th Amendment. More specifically, the Complaint contends that
Plaintiff’s “consummate fear of being assault[ed] again” and his inability to sleep are
sufficiently serious injuries to support an 8th Amendment claim.3 The Complaint demands
compensatory damages and punitive damages.4
¶ ¶ 38-41.
Complaint [#1] at
Complaint [#1] at pp. 10-12.
Complaint [#1] at p. 17.
On July 29, 2016, Defendants filed the subject motion [#15] for judgment on the
pleadings, pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. Defendants
maintain that an 8th Amendment failure-to-protect claim is not actionable, as a matter of
law, where the inmate was not actually assaulted, but only experienced fear of being
assaulted. See, Defs. Memo of Law [#15-1] at p. 4, 6 (“Fear of being assaulted is not a
sufficiently serious injury. . . . [P]laintiff’s lack of physical injury is fatal to his Eighth
Amendment claim.”). On this point, Defendants cite, inter alia, Fofana v. Suffolk County
Corr. Fac., No. 13-CV-00443 (SJF)(ETB), 2013 WL 2285753 (E.D.N.Y. May 20, 2013).
In the event that the Court declines to dismiss the action altogether, Defendants
alternatively contend that the Court should dismiss Plaintiff’s claims for compensatory and
punitive damages, pursuant to 42 U.S.C. § 1997e(e), since he did not sustain a physical
Plaintiff responds that although he did not sustain any physical injury in connection
with his 2013 incarceration at Elmira, he has nevertheless adequately stated an actionable
8th Amendment claim. In particular, Plaintiff maintains that an 8th Amendment violation
may occur where an inmate faces a “substantial risk of serious harm.”6 Plaintiff also
contends that while 42 U.S.C. § 1997e(e) requires a physical injury, it “does not [specify]
when that prior injury had to occur.”7 Plaintiff therefore argues that his 2013 emotionalinjury claims are supported by the physical injuries that he sustained in 2001, 2002, 2006
Def. Memo of Law [#15-1] at p. 6.
Pl. Memo of Law [#18] at p. 5.
Pl. Memo of Law [#18] at p. 5, n. 4.
Preliminarily, the Court notes that because Plaintiff is proceeding pro se, it construes
his submissions liberally, to raise the strongest arguments that they suggest.
The Rule 12(b)(6) standard is applicable to Defendants’ motion for judgment on the
pleadings pursuant to FRCP 12(c). Burnette v. Carothers, 192 F.3d 52, 56 (2d Cir. 1999)
(“In deciding a Rule 12(c) motion, we apply the same standard as that applicable to a
motion under Rule 12(b)(6).”), cert. den. 531 U.S. 1052, 121 S.Ct. 657 (2000). That
standard is clear:
Federal Rule of Civil Procedure 8(a)(2) requires only a short and plain
statement of the claim showing that the pleader is entitled to relief, in order
to give the defendant fair notice of what the claim is and the grounds upon
which it rests. While a complaint attacked by a Rule 12(b)(6) motion to
dismiss does not need detailed factual allegations, a plaintiff's obligation to
provide the grounds of his entitlement to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action
will not do. Factual allegations must be enough to raise a right to relief above
the speculative level, on the assumption that all the allegations in the
complaint are true (even if doubtful in fact).
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964–65, 167 L.Ed.2d 929
(2007); see also, ATSI Communications, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir.
Plaintiff additionally contends that Court has already ruled that his claim may proceed past the
pleading stage, since it denied Defendant’s summary judgment motion as to the claim, and therefore
must have permitted his 2013 failure-to-protect claim to survive summary judgment based upon the
“prior physical injur[ies]” that he sustained in 2001, 2002, 2006 and 2008. Pl. Memo of Law [#18] at p.
5, n. 4. However, the Court disagrees, since the prior Decision and Order [#12] did not specifically
address the issues raised by Defendants’ subject motion. Defendants’ summary judgment motion was
based upon defenses of res judicata, release, and the statute of limitations. Plaintiff’s responding
memo [#10] raised the issue presented here, even though such arguments was not responsive to
Defendants’ motion. The Court did not specifically address such argument in its Decision and Order,
though it recognized that Plaintiffs only alleged injuries were “emotional damages.” Decision and Order
[#12] at p. 17. Accordingly, while Plaintiff may be correct that the Court’s prior decision implies that an
8th Amendment claim can proceed based solely upon emotional injuries, it did not specifically examine
2007 ) (“To survive dismissal, the plaintiff must provide the grounds upon which his claim
rests through factual allegations sufficient ‘to raise a right to relief above the speculative
level.’ ”) (quoting Bell Atl. Corp. v. Twombly ) (footnote omitted). When applying this
[w]e construe all factual allegations in the complaint as true and “draw[ ] all
reasonable inferences in the plaintiff's favor.” ATSI Commc'ns, Inc. v. Shaar
Fund, Ltd., 493 F.3d [at 98]. In its review, the Court is entitled to consider
facts alleged in the complaint and documents attached to it or incorporated
in it by reference, documents “integral” to the complaint and relied upon in
it, and facts of which judicial notice may properly be taken under Rule 201
of the Federal Rules of Evidence. See, e.g., Rothman v. Gregor, 220 F.3d
81, 88 (2d Cir.2000); Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d
69, 72 (2d Cir.1995).
Heckman v. Town of Hempstead, 568 F. App'x 41, 43 (2d Cir. 2014).
The general legal principles applicable to an 8th Amendment failure-to-protect claim
are well settled:
The Eighth Amendment requires prison officials to take reasonable
measures to guarantee the safety of inmates in their custody. Moreover,
under 42 U.S.C. § 1983, prison officials are liable for harm incurred by an
inmate if the officials acted with “deliberate indifference” to the safety of the
inmate. However, to state a cognizable section 1983 claim, the prisoner
must allege actions or omissions sufficient to demonstrate deliberate
indifference; mere negligence will not suffice.
The test for deliberate indifference is twofold. First, the plaintiff must
demonstrate that he is incarcerated under conditions posing a substantial
risk of serious harm. Second, the plaintiff must demonstrate that the
defendant prison officials possessed sufficient culpable intent. The second
prong of the deliberate indifference test, culpable intent, in turn, involves a
two-tier inquiry. Specifically, a prison official has sufficient culpable intent if
he has knowledge that an inmate faces a substantial risk of serious harm
and he disregards that risk by failing to take reasonable measures to abate
Hayes v. New York City Dep't of Corr., 84 F.3d 614, 620 (2d Cir. 1996) (emphasis added,
citations omitted); see also, Avincola v. Maldonado, No. 04-3529-PR, 2005 WL 3116760,
at *1 (2d Cir. Nov. 22, 2005) (“A prison official's ‘deliberate indifference’ to a substantial risk
of serious harm to an inmate violates the Eighth Amendment” and will give rise to a
failure-to-protect claim.”) (citation omitted).
Defendants contend that the Complaint fails to satisfy the first prong above,
because in the absence of an actual assault, an inmate’s “fear of being assaulted” is
insufficient to establish a substantial risk of serious harm. However, several courts have
held that an inmate may satisfy the “substantial risk of serious harm” prong even if he did
not suffer injury. For example, in Heisler v. Kralik, 981 F.Supp. 830, 836 (S.D.N.Y. 1997),
the court rejected an argument similar to Defendants’, stating:
While not every injury suffered by one prisoner at the hands of another
translates into constitutional liability, the Court does not accept defendants'
position that prison officials are only liable for failing to protect an inmate
from an attack by another inmate when a serious physical injury has resulted
from the attack. If accepted, such an analysis would assess a prison
official's actions based on hindsight, rather than on the facts and
circumstances of which the official was aware at the time he acted or failed
to act. Prison officials are not required to be prescient, but only to act
reasonably in response to the conditions of which they are aware. The
position urged by the defendants would undermine the Farmer Court's
holding that conditions posing a “substantial risk” of serious harm violate the
Eighth Amendment when prison officials are deliberately indifferent to those
conditions. The Farmer Court reasoned that
[h]aving incarcerated ‘persons [with] demonstrated proclivit[ies] for
antisocial criminal and often violent, conduct,’ having stripped them
of virtually every means of self-protection and foreclosed their access
to outside aid, the government and its officials are not free to let the
state of nature take its course.
[Farmer, 511 U.S.] at 833, 114 S.Ct. at 1977 (quoting Hudson v. Palmer, 468
U.S. 517, 526, 104 S.Ct. 3194, 3200, 82 L.Ed.2d 393 (1983)). As a
consequence, the Court in Farmer recognized that injunctions against unsafe
and life-threatening conditions in prisons may be appropriate even when
nothing has yet happened. . . . Id. at 845, 114 S.Ct. at 1983 (quoting Helling
v. McKinney, 509 U.S. 25, 33, 113 S.Ct. 2475, 2480–81, 125 L.Ed.2d 22
In sum, prison officials have a constitutional duty to act reasonably to ensure
a safe environment for a prisoner when they are aware that there is a
significant risk of serious injury to that prisoner. The failure to do so violates
that prisoner's rights, whether or not an attack actually occurs, and if it does
occur, whether or not the injuries suffered in an attack are serious. In
assessing whether the risk of an inmate's violence against other inmates is
“sufficiently serious” to trigger constitutional protection, the focus of inquiry
must be, not the extent of the physical injuries sustained in an attack, but
rather the existence of a “substantial risk of serious harm.”
Id. (some citations omitted), aff'd sub nom. Heisler v. Rockland Cty., 164 F.3d 618 (2d Cir.
1998); accord, Feliciano v. Goord, 1998 WL 436358 at *4-5 (S.D.N.Y. Jul. 27, 1998); see
also, Alsaifullah v. Furco, 2013 WL 3972514 at *12 (S.D.N.Y. Aug. 2, 2013) (“The objective
prong can be met even where the inmate does not actually suffer serious physical injury.”)
(citation omitted); JCG v. Ercole, No. 11 CIV. 6844 CM JLC, 2014 WL 1630815, at *26
(S.D.N.Y. Apr. 24, 2014) (“[A]n inmate need not actually suffer serious physical injury to
face a substantial risk of serious harm.”) (citation omitted), report and recommendation
adopted, No. 11 CIV. 6844 CM JLC, 2014 WL 2769120 (S.D.N.Y. June 18, 2014).
Defendants correctly point out that there are also court decisions holding that mere
“fear of being assaulted is not a sufficiently serious injury” for purposes of the 8th
Amendment. For example, in Smith v. Byrne, 2015 WL 347394 (D.Vt. Jan. 24, 2015), the
To state a cognizable claim under these circumstances, a plaintiff must
allege facts that, if proven, would establish that he faced actual or imminent
harm as a result of the identification. While an actual physical attack is not
required to demonstrate a substantial risk of serious harm, mere fear of an
assault is insufficient to state a claim for an Eighth Amendment violation.
Id. at *6 (emphasis added; internal quotation marks omitted; collecting cases holding that
mere fear of assault is not a sufficiently serious injury under the 8th Amendment).
However, in that case, the court noted that the inmate-plaintiff had completely failed to
support his claim with factual averments indicating that he was actually in danger:
Here, all Smith alleges is that his name appeared on an affidavit. He does
not specify who wrote the affidavit, for what purpose it was written, or even
what the affidavit states. Furthermore, he has not alleged any facts to show
that he faced a threat of physical harm. Smith has only alleged the inmates
have made his life a “living hell,” and that he is “in fear all the time.”
Therefore Smith's Complaint fails to meet the first prong of the
Id. at *6 (citations to record omitted). Moreover, in that same discussion, the court
favorably cited another decision, Green v. City of N.Y. Dep't of Corr., No. 06 Civ.
4978(LTS)(KNF), 2008 WL 2485402, at *6 (S.D.N.Y. June 19, 2008), for the proposition
that “a prisoner's allegations of death threats, absent a claim that physical harm actually
existed or was imminent, was [not] sufficient to constitute a substantial risk of serious harm
under the Eighth Amendment.” Id. at *6. Such language implies that an inmate may plead
a failure-to-protect claim, even though he has not assaulted, if he plausibly alleges that a
risk of physical harm actually existed and was imminent.
The case upon which Defendants principally rely, Fofana v. Suffolk County Corr.
Fac., cited earlier, similarly involved an inmate who, the court in that case found, failed to
plausibly allege that he was actually in danger. On that point, the court in Fofana stated:
The complaint does not allege any facts to support a reasonable inference
that plaintiff is incarcerated under conditions posing a substantial risk of
serious harm. Other than his assertion that he fears for his life because
some inmates believe he is a “snitch,” plaintiff does not allege that he was
ever assaulted or injured by any other inmate, nor that any inmate ever even
threatened him with harm. Fear of assault, by itself, does not constitute a
‘sufficiently serious' injury sufficient to state a claim for failure to protect.
Id. at *5 (citations and internal quotation marks omitted). Such language implies that the
pleading would have adequately stated a failure-to-protect claim if it had alleged that the
plaintiff had actually been assaulted and/or threatened with harm. Additionally, the cases
string-cited within the Fofana decision all involved similar situations where inmates merely
alleged generalized fears of being assaulted, without showing that they had actually been
assaulted or threatened with imminent harm. Accordingly, these cases stand for the
proposition that a pleading which merely asserts an unsubstantiated fear of harm fails to
plead a “substantial risk of serious harm.”
The instant case is clearly different, as the Plaintiff’s Complaint [#1] alleges both that
there is an active “contract” on his life by the Bloods gang, and that he has already been
slashed by Bloods gang members on five occasions.9 The cases upon which Defendants
rely are therefore inapposite and fail to show Defendants’ entitlement to relief. Accordingly,
insofar as Defendants’ application [#15] maintains that the Complaint fails to plausibly
plead that Plaintiff faced a “substantial risk of serious harm,” the Court disagrees.
Defendants alternatively maintain that even if Plaintiff has adequately pleaded a
Complaint [#1] at
¶ ¶ 6, 9, 13, 16, 18, 20.
failure-to-protect claim, his damages are limited by 42 U.S.C. § 1997e(e). That statute
states, in pertinent part: “No Federal civil action may be brought by a prisoner confined in
a jail, prison, or other correctional facility, for mental or emotional injury suffered while in
custody without a prior showing of physical injury.” The Second Circuit interprets this
provision as both pertaining “to all federal civil actions including claims alleging
constitutional violations,” and as
a limitation on recovery of damages for mental and emotional injury in the
absence of a showing of physical injury, [which] does not restrict a plaintiff's
ability to recover compensatory damages for actual injury, nominal or
punitive damages, or injunctive and declaratory relief.
Thompson v. Carter, 284 F.3d 411, 416 (2d Cir. 2002). Accordingly, in the absence of
physical injury, § 1997e(e) prevents a prisoner-plaintiff from recovering compensatory
damages, but not nominal damages, punitive damages, injunctive relief or declaratory
The subject Complaint [#1] demands compensatory damages and punitive
damages.10 Defendants’ motion [#15] contends that since Plaintiff suffered no physical
injury, his claims for both compensatory and punitive damages must be dismissed,
pursuant to 42 U.S.C. § 1997e(e). However, as noted earlier, § 1997e(e) does not bar a
claim for punitive damages. See, Sawyer v. New York State Dep't of Corr. Servs., No.
11-CV-152S F, 2015 WL 6641471, at *4 (W.D.N.Y. Oct. 28, 2015) (“Section 1997e(d) does
not preclude a plaintiff from seeking non-compensatory relief, including nominal damages,
injunctive and declaratory relief, and punitive damages.”) (citing Thompson, 284 F.3d at
It also demanded injunctive relief, but the Court dismissed that claim. Decision and Order
[#12] at pp. 17-19.
418). Consequently, the portion of Defendants’ motion which demands dismissal of
Plaintiff’s punitive damages claim, based upon § 1997e(e), is denied.
The sole remaining issue is whether § 1997e(e) requires the dismissal of Plaintiff’s
claim for compensatory damages.11 Admittedly, Plaintiff’s claim alleges only mental and
emotional injuries, and no physical injury. However, Plaintiff contends that he can recover
compensatory damages for that claim, notwithstanding § 1997e(e), based upon the
physical injuries that he sustained in 2001, 2002, 2006 and 2008, even though his claims
related to those injuries have been dismissed. That is, Plaintiff interprets the term “prior
showing of physical injury” in § 1997e(e) to include even injuries that occurred years
Court decisions addressing this point are quite sparse. Indeed, the Court has
managed to find only one case directly on point, and it rejects Plaintiff’s theory. See, Strain
v. Thaler, No. CIV.A. H-13-0782, 2013 WL 6709036, at *2 (S.D. Tex. Dec. 17, 2013)
(“Plaintiff's references to an assault in 2003 and to a second assault in 2009 or 2010
appear to be for historical background purposes only. Any claim for damages based on
these prior assaults would be barred by the two-year statute of limitations at this point. Nor
can the assaults constitute the required physical injury for purposes of section 1997e(e)
in the instant lawsuit, as they do not constitute a physical injury incurred as a result of his
The Court is aware of at least one court decision indicating that it is inappropriate to address a
motion pursuant to 42 U.S.C. § 1997e(e) at the pleading stage. See, Frieson v. City of New York, 2012
WL 1948782 at *2 (S.D.N.Y. May 30, 2012) (“[However, at the motion to dismiss stage, the Court cannot,
and need not, conclusively resolve the factual question of whether or not the plaintiff suffered physical
injury in addition to his claimed mental and emotional injury.”) (emphasis added). However, in the instant
case there is no factual dispute regarding the lack of physical injury. Indeed, the absence of physical
injury is evident from the face of the Complaint. See, Howard v. City of New York, No. 11 CIV. 5899 CM
KNF, 2012 WL 5816976, at *6 (S.D.N.Y. Nov. 14, 2012) (“Since Plaintiffs have not asserted any physical
injuries, their requests for damages are barred and must be dismissed.”) (granting 12(b)(6) motion
based upon 42 U.S.C. § 1997e(e)).
current housing.”) (emphasis added). The Court agrees with the approach taken in Strain
v. Thaler, and finds that Plaintiff’s claim for compensatory damages must be dismissed,
pursuant to § 1997e(e), since he admittedly suffered no physical injury in connection with
the subject failure-to-protect claim involving his placement at Elmira in 2013. Accordingly,
that aspect of Defendants’ motion is granted, although Plaintiff may still pursue nominal
damages and/or punitive damages.
Defendants’ application for judgment on the pleadings [#15] is granted in part and
denied in part. Defendants’ request to dismiss Plaintiff’s 8th Amendment failure-to-protect
claim and his punitive-damages claim is denied, but their request to dismiss his demand
for compensatory damages is granted pursuant to 42 U.S.C. § 1997e(e).
Dated: Rochester, New York
November 6, 2017
/s/ Charles J. Siragusa
CHARLES J. SIRAGUSA
United States District Judge
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