Douglas v. Annucci et al

Filing 47

DECISION AND ORDER granting 39 Motion for Summary Judgment. Defendants' motion for summary judgment (ECF No. 39) is granted and this action is dismissed. The Clerk of the Court is directed to enter judgment for Defendants and close this acti on. The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this Order would not be taken in good faith, and leave to appeal to the Court of Appeals as a poor person is denied. Coppedge v. United States, 369 U.S. 43 8 (1962). Further requests to proceed on appeal as a poor person should be directed, on motion, to the United States Court of Appeals for the Second Circuit, in accordance with Rule 24 of the Federal Rules of Appellate Procedure. Signed by Hon. Charles J. Siragusa on 6/27/22. Copy of this order and NEF mailed to pro se plaintiff at Green Haven. (KAP)-CLERK TO FOLLOW UP-

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
__________________________________________________
TRACEY DOUGLAS,
Plaintiff,

-vs-

ANTHONY ANNUCCI, THERESA KNAPP-DAVID,
EDWARD BLY, JOSEPH BELLNIER, RICHARD
ROYy, JOYCE CARVER-JORDAN,
Defendants.
__________________________________________________

DECISION and
ORDER
14-CV-6018 CJS

INTRODUCTION
Tracey Douglas (“Plaintiff”), formerly an inmate in the custody of the New York
State Department of Corrections and Community Supervision (“DOCCS”), brought this
action pursuant to 42 U.S.C. § 1983 (“Section 1983”) maintaining that the defendants, all
supervisory officials employed by DOCCS, violated his federal constitutional rights by
failing to protect him from attack by other inmates who were members of the Bloods street
gang (“the Bloods”). Now before the Court is a motion for summary judgment (ECF No.
39) by defendants Anthony Annucci (“Annucci”), Theresa Knapp-David (“Knapp-David”),
Edward Bly (“Bly”), Joseph Bellnier (“Bellnier”), Richard Roy (“Roy”) and Joyce CarverJordan (“Carver-Jordan”). For the reasons discussed below the application is granted
and this action is dismissed.
BACKGROUND
Unless otherwise indicated the following are the facts of the case viewed in the
light most-favorable to Plaintiff. At all times relevant to this lawsuit, Plaintiff was serving
a sentence of twenty-years-to-life after being convicted of Robbery in the First and
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Second Degrees.. 1 Significantly, Plaintiff alleges that the victim of such robbery was the
girlfriend of a high-ranking Bloods gang member. Because of that, Plaintiff maintains, the
Bloods targeted him for retaliation by putting a state-wide contract on his life within the
DOCCS system:
It’s actually called a worldwide. That’s what gangs call a worldwide. That
means like your name been added to a document that anywhere you go in
the state you’re going to get hit. Anywhere you go. It doesn’t make a
difference where you go, you’re going to get hit, you know. So that’s what
we call a contract.
Pl. Dep. at p. 78. Plaintiff maintains that this put his life at significant risk, since there are
Bloods members in every single prison within DOCCS:
Q. [A]re the Bloods in every facility across the state?
A. Yes.

****
Q. So what I wanted to learn about is the Bloods from what you know are in
every facility across the state?
A. Every facility. The Commissioner will tell you that. Every facility – every
facility. We’re talking this is one of the most organized and biggest gangs
that [DOCCS] probably has ever seen ever.
Pl. Dep. at pp. 31-32.
Plaintiff, who at all relevant times had been classified by DOCCS as a maximumsecurity inmate, contends that subsequently, between 2001 and 2008, he was attacked
and slashed in the face by Bloods members on five separate occasions at the following
DOCCS facilities: Riker’s Island (“Rikers”), Downstate Correctional Facility (“Downstate”),

That sentence was at least Plaintiff’s third bid in state prison, and during a prior term of incarceration he
had been stabbed multiple times by another inmate during a fight. Plaintiff’s Deposition (“Pl. Dep.”) at p.
54.
1

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Elmira Correctional Facility (“Elmira”), Auburn Correctional Facility (“Auburn”) and Wende
Correctional Facility (“Wende”). 2 The last such attack occurred in 2008, at Wende.
Despite maintaining that Bloods members are in every DOCCS facility, Plaintiff
insists that he was particularly at risk in certain maximum-security facilities where the
inmates were “predominantly Bloods,” namely, Attica Correctional Facility (“Attica”),
Clinton Correctional Facility (“Clinton”), Five Points Correctional Facility (“Five Points”),
Coxsackie Correctional Facility (“Coxsackie”), Great Meadow Correctional Facility (“Great
Meadow”), Upstate Correctional Facility (“Upstate”), Southport Correctional Facility
(“Southport”), Green Haven Correctional Facility (“Green Haven”), Shawangunk
Correctional Facility (“Shawangunk”), Auburn, Elmira and Wende. 3
On the other hand, Plaintiff maintains that he was not at risk from Bloods members
at Downstate, even though he had previously been attacked there by a Bloods member,
or at Eastern Correctional Facility (“Eastern”), Sing Sing Correctional Facility (“Sing Sing”)
and Sullivan Correctional Facility (“Sullivan”). In other words, Plaintiff maintains that he
“felt safe” at just four maximum-security facilities-- Downstate, Eastern, Sing Sing and
Sullivan—even though they also contained Bloods members. 4 Plaintiff’s rationale is that
those four facilities purportedly were “like honor facilities, more like,” at which inmates
were less willing to engage in criminal activities. 5 Defendants, on the other hand, point
out that those facilities are the maximum-security facilities closest to the New York City
area, and suggest that Plaintiff, who is from New York City, really just wanted to be at a

Rikers is a city jail, while the other four facilities are maximum-security prisons.
Pl. Dep. at pp. 33-35.
4 Pl. Dep. at p. 39 (“Q. So it sounds like there were four facilities that you felt acceptable to being
transferred to, correct? A. Yes. Yes.”).
5 Id. at 39-40.
2
3

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facility that was close to his home and family.
As mentioned earlier, Plaintiff was last attacked by Bloods gang members in 2008.
Five years after that, in or about early 2013, Plaintiff was housed at Great Meadow, and
was caught smoking marijuana, for which he received a disciplinary sentence that he
served in the Special Housing Unit (“SHU”) at Southport. 6
While still in SHU at Southport, 7 Plaintiff sent letters to various DOCCS officials,
insisting that his life was still in danger from the Bloods “contract” (despite the lack of any
attack since 2008) and requesting that, upon his release from SHU, he not be transferred
to any of the purported “Bloods majority” facilities, which he identified in his letters as
being Clinton, Wende, Great Meadow, Elmira, Auburn, Attica, Coxsackie, Five Points and
Upstate. In response to those letters, a DOCCS official advised Plaintiff to express his
concerns to officials at Southport, as will be discussed further below.
On or about July 5, 2013, Plaintiff was released from SHU and transferred to
Elmira, contrary to his request. During his first month at Elmira, Plaintiff was classified as
being in general population, but he actually remained in his cell the entire time, since the
facility was locked down. Then, on August 1, 2013, Plaintiff was placed in protective
custody at Elmira. Thereafter, and until Plaintiff was transferred out of Elmira on or about
January 16, 2015, he remained in protective custody. Plaintiff admits that he felt safe in
the protective custody area at Elmira. However, Plaintiff was required to walk through an
area of Elmira’s general population twice per day, to receive his medications at a medical

6 Plaintiff asserts that he smoked the marijuana openly, so that he would be caught and sent to SHU,
where he would feel more secure. Based on the reports that the Court has heard from inmates over the
years about the conditions at Southport, the Court finds this explanation dubious. However, the Court
does not make credibility findings on a summary judgment motion.
7 The Court takes judicial notice of the fact that Southport is an all-SHU facility for inmates serving longer
disciplinary sentences, at which the disciplinary inmates are essentially kept in solitary confinement.

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dispensary. Significantly, on these brief walks Plaintiff was accompanied by a corrections
officer. 8 Nevertheless, Plaintiff claims that he suffered extreme mental distress as a result
of having to leave the protective custody area, since he felt that he could be attacked at
any time he was in general population, even when accompanied by a corrections officer.
On August 11, 2013, Plaintiff filed an inmate grievance at Elmira, which was
assigned number EL41311-13. The grievance, though, did not mention Plaintiff having
to walk through general population to receive his medications. 9 Rather, the grievance
asserted only that DOCCS officials were “continu[ing] to be negligent towards [Plaintiff’s]
safety” by transferring him to Elmira, and requested only that he be transferred to a
different facility. See, Grievance EL41311-13 (“I am filing this grievance because I should
be transferred out of this facility immediately.”).
On September 16, 2013, the Elmira Inmate Grievance Review Committee (“IGRC”)
recommended that the grievance be granted. Specifically, the IGRC response stated in
pertinent part:
Grievance Issue: Grievant complains in a grievance authored on 8/11/13
Grievant states that on 7/5/13 he gave constructive notice to Officials of the
New York State DOCCS in Albany about being transferred to certain
facilities, Elmira being one of them. That his life was in danger in not
transferred. [sic]
Action Requested: Grievant would like to be transferred to another facility
where his life is not in danger.
Investigative Report: As per the investigative report of: T. Sweet. “Inmate
Douglas was approved VPC [voluntary protective custody] on 8/6/13 and
was put in for a transfer to another facility on 8/13/13 as of this date his
transfer is still pending.”

8
9

Id. at 47, 49-51.
The grievance lists Plaintiff’s cell location as being in protective custody.

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I.G.R.C. Response: It is the recommendation of the IGRC that this
grievance is: GRANTED. Grievant was put in for transfer and is awaiting a
suitable facility.
Levine Decl., Ex. B.
However, for reasons that are not stated in the record, the proposed transfer to a
different facility never subsequently materialized.

Thereafter, on October 27, 2013,

Plaintiff wrote a letter to the Inmate Grievance Program Supervisor (“IGPS”), asserting
that he had appealed the IGRC determination and never received a response, and
implying that corrections staff at Elmira must have purloined his mail. 10 Plaintiff requested
that the IGPS send him a copy of any decision from the Central Office Review Committee
(“CORC”). Plaintiff, though, did not indicate, either in his letter to the IGPS or in his filings
in this action, the basis for such alleged appeal. (The absence of an explanation on that
point is curious, since it does not seem likely that Plaintiff would have appealed the
determination, inasmuch as it was favorable to him.) Nor did Plaintiff indicate that he had
filed any intermediate appeal to the facility superintendent, which ordinarily would have
preceded an appeal to CORC. 11 Moreover, Plaintiff, who keeps meticulous records, has
no documentary evidence that he appealed the IGRC determination. Nevertheless,

Levine Declaration, Exhibit E.
See, Dabney v. Pegano, 604 F. App'x 1, 3 (2d Cir. 2015) (“Plaintiff was required to submit his
grievances through the New York DOCCS' Inmate Grievance Program (“IGP”). The IGP has a threetiered process for adjudicating complaints: “(1) the prisoner files a grievance with the Inmate Grievance
Resolution Committee (‘IGRC’), (2) the prisoner may appeal an adverse decision by the IGRC to the
superintendent of the facility, and (3) the prisoner then may appeal an adverse decision by the
superintendent to the Central Office Review Committee (‘CORC’).”). Plaintiff’s statement to the IGPS,
suggesting that corrections staff must have interfered with his legal mail and requesting a copy of any
decision from CORC, suggests that if Plaintiff actually filed an appeal, he mailed the appeal directly to
CORC without first appealing to the facility Superintendent, which would not have been the correct
procedure. (CORC apparently has no record of receiving such an appeal.) Moreover, it is odd that Plaintiff
would have requested a copy of CORC’s decision from the facility IGPS, rather than writing directly to
CORC.
10
11

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Plaintiff baldly asserted to the IGPS that he had filed an appeal. On December 27, 2013,
the IGPS responded to Plaintiff, stating:
The IGRC response to this grievance was sent to you 9/17/13. We did not
receive any further correspondence from you regarding this grievance. The
grievance was not appealed further and it is past the time frame for any
further appeal.
Levine Decl., Ex. E.
On January 10, 2014, Plaintiff commenced this action proceeding pro se, asserting
claims under Section 1983 relating to all the various attacks against him by Bloods
members. In particular, the Complaint alleged that Defendants had violated Plaintiff’s
Eighth Amendment rights by failing to protect him on the occasions when he had actually
been attacked, and by subsequently placing him at Elmira where he still feared attack
despite being in protective custody.

The Complaint demanded injunctive relief,

compensatory damages and punitive damages, and sued officials at Elmira as well as
DOCCS officials in Albany.
However, following a significant amount of motion practice, most of Plaintiff’s
claims were dismissed. 12 More specifically, the Court first dismissed (without prejudice)
all claims against officials at Elmira after Plaintiff failed, in response to the Court’s initial
screening Order, to explain the factual basis for such claims. See, ECF Nos. 4-6.
Subsequently, all claims relating to the attacks on Plaintiff between 2001 and 2008 were
dismissed, see, Decision and Order (ECF No. 12), 13 leaving only the claim involving the
transfer of Plaintiff to Elmira in 2013. As to that claim, the Court denied Plaintiff’s request
12 See, ECF Nos. 12 (Order granting partial summary judgment), 12 (Decision and Order denying
preliminary injunctive relief), 23 (Order denying motion for reconsideration) and 24 (Decision and Order
granting partial dismissal).
13 Plaintiff successfully recovered damages for those attacks in actions filed in the New York Court of
Claims.

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for preliminary injunctive relief (Plaintiff is presently on parole) (ECF No. 21) and
dismissed his claim for compensatory damages since he did not sustain any physical
injury. See, Decision and Order (ECF No. 24). However, the Court ruled that despite the
lack of physical injury, Plaintiff could nevertheless proceed, at the pleading stage, on an
Eighth Amendment “failure to protect claim” and, if successful, could possibly recover
nominal and punitive damages. Id.
Defendants subsequently filed the subject motion for summary judgment (ECF No.
39) and gave Plaintiff the required Irby notice. As to the remaining Eighth Amendment
failure-to-protect claim, Defendants maintain they are entitled to summary judgment on
the following grounds: 1) failure to exhaust administrative remedies before commencing
this action as required by § 1997e(a); 2) lack of personal involvement by any Defendant
in the alleged constitutional violation; 3) lack of merit to the claim; and 4) qualified
immunity. Alternatively, Defendants maintain that if their summary judgment motion is
denied, the Court should nevertheless dismiss the claim for punitive damages, as there
is no evidence of wanton, reckless or malicious conduct.
Plaintiff filed a response (ECF No. 44) in opposition to the motion, maintaining that
there are “numerous” triable issues of fact. In particular, Plaintiff maintains that he
exhausted his administrative remedies to the extent possible, and that “the correctional
staff at Elmira” interfered with his ability to do so by “interfering with the incoming and
outgoing mail.” Plaintiff also contends that Defendants were personally involved in the
alleged constitutional violation, since he wrote letters to them describing his situation. On
this point, although Plaintiff previously indicated that he was pursuing an Eighth
Amendment claim, see, Complaint at pp. 10-12, he now asserts for the first time that

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Defendants also violated his rights to “due process and equal protection,” which only
requires that they “knew or should have known” of a condition that posed an excessive
risk to his health or safety. Plaintiff further maintains that he can establish both the
objective and subjective prongs of an Eighth Amendment failure-to-protect claim, and that
Defendants are not entitled to qualified immunity. Finally, Plaintiff contends that the
punitive damages claim should not be dismissed.
The Court notes that Plaintiff’s opposition consists of seven-page “Brief in
Opposition” (ECF No. 44) and a two-page sworn “Declaration in Opposition” (ECF No.
44-1).

Although Plaintiff maintains that he was prevented from exhausting his

administrative remedies by unknown staff at Elmira, his declaration contains no sworn
allegations concerning his alleged filing of an appeal from the IGRC’s determination.
The Court has considered the parties’ submissions and the entire record.
APPLICABLE LEGAL PRINCIPLES
Plaintiff’s Pro Se Status
Plaintiff is proceeding pro se.

Accordingly, the Court has construed his

submissions liberally, “to raise the strongest arguments that they suggest.” Burgos v.
Hopkins, 14 F.3d 787, 790 (2d Cir.1994).
Rule 56
Defendants have moved for summary judgment pursuant to Fed. R. Civ. P. 56.
Summary judgment may not be granted unless "the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter
of law.” Fed.R.Civ.P. 56(a). A party seeking summary judgment bears the burden of
establishing that no genuine issue of material fact exists. See Adickes v. S.H. Kress &

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Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). “[T]he movant must make
a prima facie showing that the standard for obtaining summary judgment has been
satisfied.” 11 MOORE'S FEDERAL PRACTICE, § 56.11[1][a] (Matthew Bender 3d ed.).
“In moving for summary judgment against a party who will bear the ultimate burden of
proof at trial, the movant may satisfy this burden by pointing to an absence of evidence
to support an essential element of the nonmoving party's claim.” Gummo v. Village of
Depew, 75 F.3d 98, 107 (2d Cir.1996) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322–
23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)), cert denied, 517 U.S. 1190 (1996).
The burden then shifts to the non-moving party to demonstrate “specific facts
showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). To do this, the non-moving party must
present evidence sufficient to support a jury verdict in its favor. Anderson, 477 U.S. at
249. The underlying facts contained in affidavits, attached exhibits, and depositions, must
be viewed in the light most favorable to the non-moving party. U.S. v. Diebold, Inc., 369
U.S. 654, 655, 82 S.Ct. 993 (1962). Summary judgment is appropriate only where, “after
drawing all reasonable inferences in favor of the party against whom summary judgment
is sought, no reasonable trier of fact could find in favor of the non-moving party.” Leon v.
Murphy, 988 F.2d 303, 308 (2d Cir.1993).
Exhaustion of Administrative Remedies
Inmates and pretrial detainees are required to exhaust administrative remedies
before asserting a federal claim in federal court complaining about jail or prison
conditions. See, 42 U.S.C.A. § 1997e(a) (“No action shall be brought with respect to
prison conditions under section 1983 of this title, or any other Federal law, by a prisoner

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confined in any jail, prison, or other correctional facility until such administrative remedies
as are available are exhausted.”). However, despite this general requirement,
[p]risoners are exempt from the exhaustion requirement when administrative
remedies are unavailable. An administrative procedure is unavailable when (1) it
operates as a simple dead end—with officers unable or consistently unwilling to
provide any relief to aggrieved inmates; (2) it is so opaque that it becomes,
practically speaking, incapable of use; or (3) prison administrators thwart inmates
from taking advantage of a grievance process through machination,
misrepresentation, or intimidation.
Amaker v. Bradt, 745 F. App'x 412 (2d Cir. Dec. 19, 2018) (citations and internal quotation
marks omitted).
If administrative remedies were “available” to the inmate plaintiff, then he must
have “properly” exhausted his remedies:
Proper exhaustion demands compliance with a prison grievance system's
deadlines and other critical procedural rules because no adjudicative system can
function effectively without imposing some orderly structure on the course of its
proceedings.
Williams v. Correction Officer Priatno, 829 F.3d 118, 122 (2d Cir. 2016) (quoting
Woodford v. Ngo, 548 U.S. 81, 90-91, 126 S.Ct. 2378 (2006), internal quotation marks
omitted).
Proper exhaustion also requires that inmate’s grievance put prison officials on
notice of the same claim that is being asserted in the federal lawsuit. See, Gomez v.
Dep't of Correction, No. 3:20-CV-958 (JAM), 2022 WL 788261, at *3 (D. Conn. Mar. 15,
2022) (“Even if a prisoner has availed himself of the prison grievance process, the
Second Circuit has held that a prisoner does not exhaust his administrative remedies
unless his grievance ‘allege[s] facts sufficient to alert corrections officials to the nature
of the claim.’ Singh v. Lynch, 460 F. App'x 45, 47 (2d Cir. 2012). Because the
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exhaustion requirement is intended to afford prison officials an opportunity to address
the issue internally, the inmate must include sufficient information to enable prison
officials to address the same claim asserted in federal court.”) (citation omitted); see
also, Brownell v. Krom, 446 F.3d 305, 310 (2d Cir. 2006) (“While this Court has found it
appropriate to afford pro se inmates a liberal grievance pleading standard, the
grievance may not be so vague as to preclude prison officials from taking appropriate
measures to resolve the complaint internally.”).
Here, in response to Defendants’ contention that Plaintiff failed to exhaust his
administrative remedies, Plaintiff has indicated, though not in a sworn statement, that he
filed an appeal of the IGRC’s determination of Grievance No. EL42009-14. In particular,
Plaintiff indicates that he mailed an appeal to CORC, and that insofar as CORC has no
record of receiving it, it is because staff at Elmira prison thwarted his efforts by pulling the
appeal out of the mail.
The Court indicated above several reasons why it seems highly unlikely that
Plaintiff actually filed such an appeal. Consequently, it seems much more plausible that
as Plaintiff was preparing his complaint in this action, he realized that he had not
exhausted his administrative remedies and accordingly drafted the letter to the IGPS
asking about a decision on a non-existent appeal. However, the Court may not resolve
issues of credibility on a summary judgment motion.
Nevertheless, the Court finds that Plaintiff has not created a triable issue of fact
as to whether he exhausted his administrative remedies before filing this action as
required by § 1997e(a). To begin with, Plaintiff has not provided a sworn statement
concerning his alleged attempt to file an appeal. More importantly, even assuming that

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the Court accepts Plaintiff’s unsworn statements as true, his description of his attempt
to appeal the IGRC decision does not amount to proper exhaustion under New York’s
Inmate Grievance Program procedures. That is, Plaintiff contends that upon receiving
the IGRC’s determination, he mailed an appeal to CORC. However, as mentioned
above in footnote 11, the proper response to the IGRC’s decision would have been to
first file an appeal with Elmira’s superintendent, and then file an appeal to CORC.
There is no indication in the record that Plaintiff filed an appeal to the facility
superintendent, and consequently he has not raised a triable issue of fact as to whether
he properly exhausted his administrative remedies.
Additionally, even assuming that Plaintiff’s attempt to appeal was otherwise
sufficient, the only thing about which Plaintiff complained in his grievance was the fact
that he had been transferred to Elmira, which placed him in danger because he had
enemies in the Bloods gang. Moreover, the only relief that Plaintiff requested in the
grievance was to be transferred to a different facility. The grievance did not mention the
fact that even though Plaintiff was in protective custody, he feared for his safety
because he had to go into general population to receive his medications. Nor did the
grievance request any relief related to that concern, such as that he be allowed to
receive his medications without having to leave the protective custody area of the
facility.
Consequently, the grievance did not put officials at Elmira on notice of the
primary claim remaining in this action– the claim that Defendants were deliberately
indifferent to Plaintiff’s safety by requiring him to leave the protective custody area and
walk through general population to receive his medications, accompanied by a

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corrections officer. The grievance gave no indication that Plaintiff had a medical
condition that would require him to leave the protective custody area of the facility and
enter general population to receive medication. Rather, the grievance only gave notice
of the claim that DOCCS had put Plaintiff at risk of injury or death by transferring him to
Elmira (even though they subsequently placed him in protective custody).
In sum, the Court finds that Defendants are entitled to summary judgment based
on Plaintiff’s failure to properly exhaust administrative remedies. The Court further finds
that even assuming Plaintiff had properly exhausted grievance EL42009-14, the
grievance only put DOCCS on notice of a claim that Plaintiff believed he was generally
in danger at Elmira and wanted a transfer, and did not give notice that Plaintiff was in
danger from having to leave the protective custody area to receive his medications. As
discussed below, the Court also finds that Plaintiff’s claims against Defendants lack
merit in any event.
Section 1983
Section 1983 “is not itself a source of a substantive rights, but merely provides a
method for vindication of federal rights elsewhere conferred.” Long v. Crowley, No.
09BCVB00456A(F), 2012 WL 1202181 (W.D.N.Y. Mar. 22, 2012) (citations and internal
quotation marks omitted). To establish individual liability under Section 1983, a plaintiff
must show that the defendant acted under color of state law and caused the plaintiff to
be deprived of a constitutional right. 42 U.S.C. § 1983.
Personal Involvement
“A defendant in a § 1983 action may not be held liable for damages for
constitutional violations merely because he held a high position of authority. Rather, the

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personal involvement of defendants in alleged constitutional deprivations is a prerequisite
to an award of damages under § 1983.” Victory v. Pataki, 814 F.3d 47, 67 (2d Cir. 2016)
(citations and internal quotation marks omitted), as amended (Feb. 24, 2016). 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 indifference to the rights of inmates
by failing to act on information indicating that unconstitutional acts were
occurring.”
Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995) (internal citations omitted).
Receiving and forwarding an inmate’s correspondence is insufficient to establish
personal involvement by a prison official. See, Delee v. Hannigan, 729 F. App'x 25, 31
(2d Cir. 2018) (“As to defendant Chappius, the amended complaint makes the single
allegation that he had forwarded correspondence from Delee to another party. Such
activity, without more, does not amount to personal involvement. See Sealey v. Giltner,
116 F.3d 47, 51 (2d Cir. 1997).”); see also, Goris v. Breslin, 402 F. App'x 582, 584 (2d
Cir. 2010) (“The record shows that Dr. Wright's personal involvement was limited to the
receipt of two letters from Goris, which he promptly referred to other individuals for
investigation and response. Accordingly, Goris has failed to establish the requisite
personal involvement on Dr. Wright's part, and the district court properly granted summary
judgment in Dr. Wright's favor.”) (citation omitted).
In the instant case, the record shows that the remaining defendants (Annucci,
Knapp-David, Bly, Bellnier, Roy and Carver-Jordan) are all supervisory DOCCS officials
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to whom Plaintiff sent letters. Plaintiff has not shown that any such defendant was actually
involved in the decision to transfer him to Elmira, or in the decision to require him to leave
Elmira’s protective custody area each day and walk through general population to receive
his medications. The record indicates, instead, that the decision to transfer Plaintiff to
Elmira was made by officials at Southport and/or Elmira, with some oversight by unnamed
DOCCS officials at the Division of Classification and Movement in Albany. The record
further suggests that the decision to require Plaintiff to leave protective custody at Elmira
to receive his medications, while being escorted by a corrections officer, was made by
someone at Elmira.

Plaintiff initially sued several DOCCS employees at Elmira.

However, the Court dismissed those defendants from the action without prejudice after
Plaintiff failed to explain how they were personally involved in the claim, and Plaintiff never
subsequently amended the Complaint to add those defendants back into the action.
As for Annucci, Knapp-David, Bly, Bellnier, Roy and Carver-Jordan, the record 14
indicates that in or about March 3, 2013, while Plaintiff was still in SHU at Southport, he
sent a letter to these Defendants requesting that he not be transferred to Clinton, Wende,
Great Meadow, Elmira, Auburn, Attica, Coxsackie, Five Points or Upstate. On April 9,
2013, Plaintiff sent a similar letter to Carver-Jordan, in her capacity as DOCCS Director
for Classification and Movement. On April 30, 2013, Associate Commissioner KnappDavid wrote to Plaintiff stating:
[DOCCS] Commissioner [Brian] Fischer has referred your recent
correspondence regarding separatees, to me for response. The Office of
Classification and Movement reviews an offender’s transfer history and the
separation system prior to issuing a transfer order. Be assured this
procedure will be utilized prior to your transfer being considered. You
should discuss any future transfer issues with your assigned Offender
14

See, e.g., ECF No. 5 and exhibits.

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Rehabilitation Coordinator, who is in the best position to advise you
regarding such matters.
ECF No. 5, Exhibits. On May 1, 2013, Plaintiff sent another such letter to several DOCCS
officials including DOCCS Commissioner Fischer and defendants Annucci and CarverJordan. On May 9, 2013, defendant Bly, Assistant DOCCS Commissioner, wrote to
Plaintiff, evidently in response to Plaintiff’s letter of May 1, 2013, stating:
Assistant Commissoner/Executive Assistant Van Buren has asked me to
respond to your letter to her regarding your safety and your transfer
concerns at Southport Correctional Facility.
Your letter was sent to Superintendent Griffin for investigation who reported
the facility investigated these matters in response to similar complaints you
filed with his office. Facility officials answered you on April 2, 2013,
indicating inmates were added to your separatee list.
All transfers are initiated at the facility level and are subject to review by the
Division of Classification and Movement in Albany. Therefore, it is
suggested you continue to discuss your transfer concerns with your
assigned offender rehabilitation coordinator. If a transfer is submitted on
your behalf, it will be evaluated thoroughly and appropriate action will be
taken if warranted.
I am confident that facility officials have taken and will continue to take the
necessary preventative measures to ensure your safety. However, in the
future, if you feel that there are specific individuals that pose a threat, you
should immediately notify facility officials as they are in the best position to
evaluate your concerns and take appropriate action.
ECF No. 5, Exs. Also, on June 27, 2013, Knapp-David sent a letter to Plaintiff’s fiancé,
Charlotte Pugh, apparently in response to a letter she had received from Pugh, stating:
Acting Commissioner Annucci has referred your correspondence regarding
separatees of your fiancé, Tracey Douglas, to me for response.
The Office of Classification and Movement reviews an offender’s transfer
history and the separation system prior to issuing a transfer order. Be
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assured this procedure was utilized prior to Tracey’s transfer being
approved.
Your fiancé has been approved for transfer. Movement will be effected
when appropriate space becomes available.
ECF No. 5, Exs.
After being transferred to Elmira, Plaintiff continued to write letters to DOCCS
officials. Notably, in that regard, on November 4, 2013, and November 7, 2013, Plaintiff
wrote letters to Defendants in this action, stating that he did not feel safe at Elmira even
though he was in protective custody. ECF No. 5, Exhibits. In his letter dated November
4, 2013, Plaintiff stated that despite him being in protective custody, there was still “the
possibility of imminent danger everytime [he was] forced to walk through the general
population of inmates in order to go get [his] pain medication twice a day,” and that the
fact he was escorted by a corrections officer on each such trip was “irrelevant.” Id. Plaintiff
stated essentially the same things in his letter dated November 7, 2013. Id. (“My life is in
jeopardy here even in the protective custody unit where I am now held, there are threats
to my security, due to the fact that I have to go (twice a day) to a medication window in
the facility infirmary to receive my [medication].”). Both letters asserted that Plaintiff was
living in a constant state of fear of being attacked. Except as indicated above, there is no
indication that any Defendant received or responded to Plaintiff’s letters.
On these facts, the Court finds that there is no triable issue of fact as to Defendants’
personal involvement in the alleged constitutional violations. The only Defendants who
responded to Plaintiff’s letters were Knapp-David and Bly, and their involvement took
place while Plaintiff was still at Southport. At that point, Plaintiff had yet to be transferred
to Elmira. Moreover, it would have been reasonable for Defendants to believe that even
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if Plaintiff had been transferred to one of the facilities listed in his letters, he would have
been placed in protective custody or otherwise kept away from his enemies through
existing DOCCS procedures. Consequently, it cannot be said that Knapp-David or Bly
(or any other Defendant who might have received Plaintiff’s letters) had notice at that time
of any violation of Plaintiff’s constitutional rights.
As for the letters that Plaintiff wrote to Defendants in November 2013, the Court
similarly finds that they are not sufficient to demonstrate personal involvement in an
alleged constitutional violation. Those letters indicate that Plaintiff was in protective
custody at Elmira, and that whenever he left the protective custody area he was escorted
by a corrections officer. While Plaintiff asserted that he still felt unsafe whenever he had
to go to receive his medications, Plaintiff’s subjective feelings in that regard do not raise
a triable issue of fact as to whether Defendants had reason to believe that a constitutional
violation was occurring, such that they could be deemed to have personal involvement
under the Colon v. Coughlin standard set forth above.
Accordingly, Defendants are entitled to summary judgment based on a lack of
personal involvement in the alleged constitutional violations. The Court further finds that
Plaintiff’s claims lack merit, as discussed below.
Eighth Amendment
It is law of the case that Plaintiff’s Complaint, liberally construed, purports to state
an Eighth Amendment failure-to-protect claim. 15 That claim has two facets: First, that
Defendants failed to protect Plaintiff from physical harm by transferring him to Elmira

15 As mentioned earlier, in his opposition to Defendants’ summary judgment motion Plaintiff indicates that
he is also asserting a due process and equal protection claim, and that he is therefore not required to
demonstrate deliberate indifference. Plaintiff’s attempt to amend his Complaint in that fashion is denied as,
inter alia, untimely.

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against his wishes; and, second, that Defendants failed to protect Plaintiff from mental
and physical harm at Elmira by requiring him to walk through the general population area
to receive his medications each day, accompanied by a corrections officer.
The Eighth Amendment protects prison inmates against cruel and unusual
punishment. U.S. Const. amend. VIII; see Whitley v. Albers, 475 U.S. 312, 319, 106 S.Ct.
1078, 89 L.Ed.2d 251 (1986) (protecting inmates against the “unnecessary and wanton
infliction of pain”) (internal quotation marks omitted). To be actionable, the punishment
must be “objectively, sufficiently serious,” and the corrections officer must have a
“sufficiently culpable state of mind.” Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct.
1970, 128 L.Ed.2d 811 (1994) (citation and internal quotation marks omitted).
A bare allegation that a prison official acted with the requisite mental state is
insufficient to withstand summary judgment. See, Delee v. Hannigan, 729 F. App'x at 32
(2d Cir. 2018) (“Delee alleges that a number of other supervisory defendants exhibited
deliberate indifference to his purported constitutional deprivations; but he provides no
evidence that any of them had the requisite mental state or knowledge. See Farmer, 511
U.S. at 837, 114 S.Ct. 1970. Such bare allegations are insufficient to withstand summary
judgment. See Fed. R. Civ. P. 56; Goenaga v. March of Dimes Birth Defects Foundation,
51 F.3d 14, 18 (2d Cir. 1995).”).
“To state a claim for deliberate indifference to health or safety or failure to protect
him from harm, [an inmate] must show that the conditions of his confinement posed a
substantial risk of serious harm and that the defendants were deliberately indifferent to
his safety. See Farmer v. Brennan, 511 U.S. 825, 834 (1994). Deliberate indifference
exists when the defendant knows of and disregards an excessive risk to the plaintiff's

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safety. See id. at 837; Bridgewater v. Taylor, 698 F. Supp. 2d 351, 357 (S.D.N.Y. 2010)
(explaining that defendants must be aware of facts supporting an inference that harm
would occur and must actually draw that inference).”). Pena v. Cook, No. 3:19-CV-825
(KAD), 2019 WL 2579262, at *3 (D. Conn. June 24, 2019).
“In order to prevail on an Eighth Amendment claim based on a prison official's
‘deliberate indifference’ to a substantial risk of serious harm, a plaintiff must show not only
that the harm is sufficiently serious, but that the defendant acted with a sufficiently
culpable state of mind, and was not merely negligent.” Doyle v. Coombe, 159 F.3d 1346
(table), 1998 WL 537066 at *2 (2d Cir. Jun. 12, 1998). It is possible for an inmate to show
“a substantial risk of serious harm” even though he did not sustain actual harm, but in
“most cases” the absence of any injury will be “highly relevant to the question of whether
the [defendant] subjected the prisoner to a significant risk of serious harm.” Hall v. New
York, 476 Fed.Appx. 474, 477, 2012 WL 1003765 at *2, n. 1 (2d Cir. Mar. 27, 2012). On
this point, courts have held that the mere fear of being assaulted by other inmates is
insufficient to establish a substantial risk of objective harm. See, e.g., Cooper v. City of
New York, No. 13–cv–7590 (PKC)(JLC), 2014 WL 5315074 at *3 (S.D.N.Y. Oct. 17, 2014)
(“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.”).
Here, Plaintiff has not raised a triable issue of fact as to either the objective or
subjective prongs of an Eighth Amendment failure-to-protect claim. Insofar as Plaintiff’s
claim is based on the fact that he was transferred to Elmira, it fails since the transfer did
not objectively create an excessive risk to his safety. Plaintiff maintains that the Bloods

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had placed a DOCCS-wide contract on his life, and that Bloods members are at every
single DOCCS facility.

Consequently, the fact that Plaintiff was sent to Elmira, as

opposed to one of the other facilities where he subjectively felt safer (such as Downstate,
even though he was previously attacked there by the Bloods) did not necessarily place
him at greater risk. Moreover, prior to the transfer DOCCS officials attempted to identify
all of Plaintiff’s known enemies, and after the transfer they placed him in protective
custody. Nor, on these facts, has Plaintiff shown that defendants subjectively acted with
deliberate indifference to his safety by transferring him to Elmira.
Insofar as the claim is based on Plaintiff having to leave the protective custody
area at Elmira to receive his medications, it similarly fails, since there objectively was no
excessive risk to Plaintiff’s safety, and no deliberate indifference to such a risk, where he
was always escorted by a corrections officer. The fact that Plaintiff still subjectively feared
for his safety under those circumstance, or that officials at Elmira might have taken even
greater precautions, does not raise a triable issue of fact as to whether DOCCS officials
acted with deliberate indifference. See Farmer v. Brennan, 511 U.S. 825, 844, 114 S.Ct.
1970, 128 L.Ed.2d 811 (1994) (“[P]rison officials who actually knew of a substantial risk
to inmate health or safety may be found free from liability if they responded reasonably to
the risk, even if the harm ultimately was not averted.”); see also, Jones v. Diaz, No. 09
CIV. 2625 SHS, 2011 WL 1202024, at *3 (S.D.N.Y. Mar. 23, 2011) (“There is no indication
in the record of these litigations that the WCDOC defendants knew Jones was facing a
substantial risk of serious harm when they escorted him down the hallway past other
inmates. When Chambliss unforeseeably assaulted plaintiff, the escorting officer—and
ultimately the Emergency Response Team—intervened to break up the fight. The fact

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that the WCDOC defendants could have taken additional precautions to prevent the
altercation is insufficient to prove deliberate indifference, a level of culpability higher than
mere negligence. Accordingly, plaintiff has failed to raise a genuine issue of material fact
and summary judgment on plaintiff's failure to protect claim should be granted in favor of
the WCDOC defendants as a matter of law.”) (citation omitted). At most, the failure to
take additional precautions would amount to negligence, not deliberate indifference.
CONCLUSION
Defendants’ motion for summary judgment (ECF No. 39) is granted and this action
is dismissed. The Clerk of the Court is directed to enter judgment for Defendants and
close this action. The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal
from this Order would not be taken in good faith, and leave to appeal to the Court of
Appeals as a poor person is denied. Coppedge v. United States, 369 U.S. 438 (1962).
Further requests to proceed on appeal as a poor person should be directed, on motion,
to the United States Court of Appeals for the Second Circuit, in accordance with Rule 24
of the Federal Rules of Appellate Procedure.
SO ORDERED.
Dated: Rochester, New York
June 27, 2022

ENTER:
_____________________
CHARLES J. SIRAGUSA
United States District Judge

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