McCloud v. Doe et al
Filing
17
ORDER granting defendants' motion to dismiss 11 . All of plaintiff's claims are dismissed, other than his Eighth Amendment claims against defendants Bradt and Griffin, based on their alleged failure to protect plaintiff. Plaintiff's motion for sanctions 15 is denied without prejudice. Signed by Hon. David G. Larimer on 10/28/14. (EMA)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________________________
ARMOND MC CLOUD,
Plaintiff,
DECISION AND ORDER
14-CV-6253L
v.
ALBERT PRACK, Director of Special Housing,
MARK BRADT, Superintendent of Attica Correctional
Facility in his official and individual capacity,
J. GRIFFEN, Correctional Officer at the Attica Corr.
Fac. in his official and individual capacity,
SGT. SHEPANSKI, A. OLLES,
Defendants.
________________________________________________
Plaintiff Armond McCloud, appearing pro se, has filed this action under 42 U.S.C. § 1983.
Plaintiff, an inmate in the custody of the New York State Department of Corrections and
Community Supervision (“DOCCS”), has sued five individuals, who at all relevant times were
DOCCS officials or employees. Plaintiff alleges that defendants violated his constitutional rights in
a number of respects in connection with certain events that occurred in 2013, while plaintiff was
confined at Attica Correctional Facility.
Defendants have moved pursuant to Fed. R. Civ. P. 12(b)(6) to dismiss the complaint, with
the exception of one claim against two of the defendants. Plaintiff has filed a response in opposition
to the motion, as well as a motion for sanctions.
FACTUAL BACKGROUND
The complaint sets forth the following factual allegations, which are assumed to be true for
purposes of defendants’ motion. In March 2013, despite their knowledge that plaintiff was at
particular risk of attack by other inmates, defendants Mark Bradt and Albert Prack, who were
respectively the Superintendent of Attica and the DOCCS Director of Special Housing, had plaintiff
removed from protective custody and returned to general population.1 Complaint ¶ 13.
After he was returned to general population, plaintiff informed defendant Correction Officer
(“CO”) J. Griffin that he had been receiving threats from other inmates. On March 5, 2013,
however, Griffin deliberately opened plaintiff’s cell door to allow two other inmates to enter
plaintiff’s cell and physically assault him. Complaint ¶ 15. Plaintiff was seriously injured in the
assault. Complaint ¶ 19.
The inmates who carried out the assault also allegedly doused plaintiff with feces that they
had in a coffee can. Complaint ¶ 20. The two inmates then left plaintiff’s cell, and in response to
plaintiff’s cries for help, defendant Griffin returned to the cell. When he saw plaintiff’s condition,
Griffin retrieved a fire hose, and sprayed plaintiff for several minutes, calling plaintiff a “crybaby”
as he did so. Complaint ¶ 22.
Plaintiff was issued a misbehavior report for engaging in an unhygienic act, and was placed
in solitary confinement. While there, he was interviewed by a mental health worker. After plaintiff
told the worker what had happened, plaintiff was taken to the infirmary, and from there to the Erie
County Medical Center, where he was treated for his injuries. Complaint ¶¶ 25, 26, 32.
1
The complaint originally named one defendant as “John Doe,” but he has since been
identified as Albert Prack. See Dkt. #14.
2
Defendant CO A. Olles was assigned to investigate plaintiff’s assault allegation, but Olles
allegedly conducted a deliberately poor investigation, including by failing to preserve evidence, in
order to cover up what had happened. Olles allegedly did so at the direction of defendant Sergeant
Shepanski, who at one point told plaintiff, “This is Attica. We do what we want.” Complaint ¶¶ 29,
30.
The misbehavior charges against plaintiff were later dismissed based on “circumstances
surrounding the incident,” but his grievance arising out of the alleged assault was denied as
unfounded. Complaint Exs. E, G.
Based on these allegations, plaintiff has asserted the following claims: (1) a failure-toprotect claim against Griffin, Prack and Bradt; (2) a negligent-supervision claim against Bradt; (3)
an Eighth Amendment claim against Griffin based on Griffin’s spraying plaintiff with a fire hose;
(4) a destruction-of-evidence claim against Shepanski and Olles; and (5) a conspiracy claim against
Shepanski, Olles and Griffin. Plaintiff seeks money damages ranging from $50,000 to $75,000.
Defendants have moved to dismiss the complaint, with the exception of plaintiff’s failure-toprotect claim against Bradt and Griffin. For the following reasons, the motion is granted.
DISCUSSION
I. Collection/Destruction of Evidence
Plaintiff has asserted claims against Shepanski and Olles, based on Olles’ failure to preserve
evidence obtained during his investigation of the alleged assault. “The law is clear,” however, “that
inmates do not enjoy a constitutional right to an investigation of any kind by government officials.
The Due Process Clause confers no right to governmental aid, even where that aid may be necessary
to secure life, liberty, or property interests of which the government itself may not deprive the
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individual.” Banks v. Annucci, ___ F.Supp.3d ___, 2014 WL 4824716, at *15 (N.D.N.Y. 2014)
(citations omitted).
Plaintiff’s allegations that Olles deliberately conducted an inadequate investigation for the
purpose of covering up Griffin’s alleged misconduct, and that he did so at the direction of defendant
Shepanski, are likewise insufficient to make out a § 1983 claim against either of them. See Barnes
v. Fedele, 760 F.Supp.2d 296, 304-05 (W.D.N.Y. 2011) (“Plaintiff’s conclusory allegation that
Kerbein ‘covered up’ for Fedele by conducting a less than thorough investigation fails to state a
claim against Kerbein”); Rosales v. Kikendall, 677 F.Supp.2d 643, 650 (W.D.N.Y. 2010)
(“Plaintiff’s conclusory allegation that Kikendall ‘knew that [plaintiff’s] complaint was not
investigated according to DOCS guidelines but ... sustained the investigation to cover up the
defendants actions’ is insufficient to show any knowing violation by Kikendall of plaintiff’s rights”)
(citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
Since plaintiff cannot make out a destruction-of-evidence claim against Olles and
Shepanski, his claim against Bradt based on Bradt’s alleged negligent supervision and training of
his subordinates must also be dismissed. This claim is based solely on Olles’s alleged failure to
preserve evidence. Accordingly, there is no basis for a negligence claim against Bradt.2
2
In his response to defendants’ motion, plaintiff suggests that he may have a cause of action
against Olles and Shepanski under the Prison Rape Elimination Act (“PREA”), 42 U.S.C. § 15601.
As this Court recently stated, however, “[n]othing in the statute suggests that PREA intended to
establish a private cause of action for allegations of prison rape, and every court to address the issue
has determined that PREA cannot support such a cause of action by an inmate.” Amaker v. Fischer,
No. 10-CV-0977, 2014 WL 4772202, at *14 (W.D.N.Y. Sept. 24, 2014) (citing cases).
Accordingly, I find no basis here for such a claim.
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II. Conspiracy
Closely related to the destruction-of-evidence claim is plaintiff’s claim that Olles and
Shepanski conspired with Griffin to cover up Griffin’s deliberate unlocking of plaintiff’s cell door
to allow him to be attacked by other inmates. For such a claim to survive, plaintiff must allege an
agreement between two or more defendants to act in concert to inflict an unconstitutional injury,
and an overt act done in furtherance of that goal causing damages. See Pangburn v. Culbertson,
200 F.3d 65, 72 (2d Cir. 1999).
Conclusory allegations of a conspiracy will not suffice. See, e.g., Marrero v. Kirkpatrick,
659 F.Supp.2d 422, 425 (W.D.N.Y. 2009). “[C]omplaints containing only conslusory, vague, or
general allegations that the defendants have engaged in a conspiracy to deprive the plaintiff of his
constitutional rights are properly dismissed; diffuse and expansive allegations are insufficient,
unless amplified by specific instances of misconduct.” Ciambriello v. County of Nassau, 292 F.3d
307, 325 (2d Cir. 2002). See, e.g., Johnson v. Barney, No. 04 Civ. 10204, 2006 WL 3714442, at *2
(S.D.N.Y. Dec.13, 2006) (dismissing for failure to state a claim prisoner’s conclusory allegation that
defendant fabricated an investigative report as part of a conspiracy to cover up the wrongful acts of
other correction officers), aff’d, 360 Fed.Appx. 199 (2d Cir. 2010).
In addition, to make out a conspiracy action under section 1983, the plaintiff must allege an
underlying denial of his constitutional rights. See Myers v. Bowman, 713 F.3d 1319, 1332 (11th Cir.
2013); Richard v. Fischer, ___ F.Supp.2d ___, 2014 WL 3974158, at *6 (W.D.N.Y. Aug. 7, 2014).
See, e.g., Novotny v. Tripp County, 664 F.3d 1173, 1179 (8th Cir. 2011) (“because Novotny has not
adequately shown any underlying constitutional violations, his civil conspiracy claim must also
fail”); Sow v. Fortville Police Dep’t, 636 F.3d 293, 305 (7th Cir. 2011) (“the absence of any
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underlying violation of Plaintiff’s rights precludes the possibility of Plaintiff succeeding on a
conspiracy claim”).
Assuming the truth of plaintiff’s allegation that Olles and Shepanski intentionally failed to
preserve evidence in order to cover up Griffin’s wrongdoing, that could not have facilitated the
underlying constitutional violation, i.e., Griffin’s deliberate failure to protect plaintiff from physical
harm. That violation, assuming it occurred, had already happened by the time that Olles began his
investigation. Thus, the alleged Eighth Amendment violation arising out of Griffin’s alleged
opening or unlocking of plaintiff’s cell door cannot form the predicate violation for a conspiracy
claim arising out of a later alleged coverup.
Nor can plaintiff show any prejudice occasioned by the failure to preserve evidence, that
could rise to a constitutionally significant level. As stated, the misbehavior reports issued against
plaintiff, arising out of the incidents in question, were dismissed.
Plaintiff’s grievance alleging the wrongful destruction of evidence was denied.
The
superintendent stated that “staff improperly disposed of” the evidence, but that there was “no
evidence of malicious intent,” and that “[a]ppropriate corrective action is being taken to ensure
proper handling of evidence in this nature in the future.” Complaint Ex. G. Plaintiff’s underlying
allegation concerning the assault was found to be unsubstantiated. Id.
In some circumstances, a state actor’s destruction of evidence can give rise to a claim for
denial of a plaintiff’s constitutional right of access to the courts. See, e.g., Patterson v. Burge, 328
F.Supp.2d 878, 897 (N.D.Ill. 2004). That right does not apply to prison grievance proceedings,
however. See Mahon v. McCall, No. 13 Civ. 2076, 2014 WL 4589855, at *4 (S.D.N.Y. Sept. 15,
2014); Abney v. Jopp, 655 F.Supp.2d 231, 234 (W.D.N.Y. 2009). Therefore, interference with an
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inmate’s attempt to file or pursue a grievance will not give rise to a constitutional claim, absent a
showing that the defendants’ actions resulted in actual prejudice to the inmate’s pursuit of a legal
action. Abney, 655 F.Supp.2d at 234.
Plaintiff has not alleged any actual prejudice in this or any other judicial action, resulting
from defendants’ alleged conspiracy to destroy evidence. Plaintiff has not been prevented from
seeking judicial relief. See Fedor v. Kidrak, 421 F.Supp.2d 473, 483 (D.Conn. 2006) (plaintiff’s
denial-of-access claim failed, since plaintiff was not actually prevented from initiating litigation and
seeking appropriate remedies). In addition, if this action were to go to trial, plaintiff could seek an
instruction permitting the jury to draw an inference adverse to defendants, although I express no
opinion at this juncture whether such an instruction would be warranted. See Livingston v. Kelly,
423 Fed.Appx. 37, 42 n.5 (2d Cir. 2011).3
III. “Fire Hose” Claim
Plaintiff’s claim against Griffin, based on Griffin’s spraying plaintiff with a fire hose, must
be dismissed. Plaintiff brings this claim under the “cruel and unusual punishments” clause of the
Eighth Amendment, which protects inmates from the use of excessive force and from prison
officials' deliberate indifference to inmates' serious medical needs. See Hemphill v. New York, 380
F.3d 680, 681 (2d Cir. 2004); Thompson v. Maldonado, 309 F.3d 107, 108-09 (2d Cir. 2002).
Plaintiff does not allege that he suffered any physical injury as a result of Griffin’s act,
however. Although he does allege that he was injured by the inmates who assaulted him, that was a
separate act. In response to defendants’ motion, plaintiff alleges that being sprayed with water,
3
In fact, plaintiff has filed a motion for sanctions based on defendants’ alleged spoliation of
evidence, which is addressed below.
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while Griffin verbally taunted him, caused plaintiff “mental anguish and misery,” but the law is
clear that “[p]risoners bringing federal lawsuits ... ordinarily may not seek damages for mental or
emotional injury unconnected with physical injury.” Minneci v. Pollard, ___ U.S. ___, 132 S.Ct.
617, 625 (2012) (citing 42 U.S.C. § 1997e(e)); accord Toliver v. City of New York, 530 Fed.Appx.
90, 93 n.2 (2d Cir. 2013); Lloyd v. City of New York, ___ F.Supp.2d ___, 2014 WL 4229936, at *12
(S.D.N.Y. 2014).
If plaintiff’s failure-to-protect claim goes to trial, evidence that Griffin sprayed plaintiff, and
of the manner in which he did so, may be admissible to establish the overall course of events, or to
show Griffin’s state of mind. But it cannot form the basis of an independent Eighth Amendment
claim.
IV. Failure-to-Protect Claim against Prack
Plaintiff’s failure-to-protect claim is asserted against Griffin, Bradt and Prack. As stated,
defendants at this time do not seek dismissal of this claim as against Griffin and Bradt. Insofar as
this claim is asserted against Prack, however, it must be dismissed for lack of personal involvement.
It is well established that “[p]ersonal involvement of defendants in alleged constitutional
deprivations is a prerequisite to an award of damages under § 1983.” McKinnon v. Patterson, 568
F.2d 930, 934 (2d Cir. 1977). “Personal involvement” may be established in one of four ways: (1)
direct participation; (2) learning of the deprivation but failing to remedy the wrong; (3) creating a
policy or custom under which the deprivation occurred, or allowing such a policy or custom to
continue; or (4) gross negligence in managing subordinates who caused the deprivation. See
Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir. 1986).
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Prack is identified as the DOCCS Director of Special Housing, stationed in Albany. See
Complaint at 2; Dkt. #14. He is not alleged to have had any direct participation in the underlying
events, aside from plaintiff’s conclusory allegation that Prack and Bradt had plaintiff removed from
protective custody. Complaint ¶ 13. There are no allegations indicating that Prack was even aware
of plaintiff’s removal from protective custody, that he knew of any threats to plaintiff’s safety, or
that he could otherwise be held liable for the alleged violation of plaintiff’s rights. This claim is
therefore dismissed.
V. Official-Capacity Claims
Plaintiff has sued all defendants in their individual and official capacities. Since plaintiff
does not seek injunctive relief, there is no basis for any claims against defendants in their official
capacities.
All such claims are barred under the Eleventh Amendment to the United States
Constitution, and are dismissed. See O'Diah v. Artus, 887 F.Supp.2d 497, 502-03 (W.D.N.Y.
2012); Taylor v. Fischer, 841 F.Supp.2d 734, 736–37 (W.D.N.Y. 2012).
VI. Plaintiff’s Motion for Sanctions
Plaintiff has filed a motion for sanctions, based on defendants’ failure to preserve relevant
evidence. Plaintiff requests that defendants be precluded at trial from arguing that the alleged
assault by the other two prisoners did not occur, as well a monetary sanction of $5000.
Although there are circumstances in which sanctions are warranted based on a party’s
failure to preserve evidence, see G.W. v. Rye City Sch. Dist., 554 Fed.Appx. 56, 57 (2d Cir. 2014), I
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decline to do so at this time. This matter would be better addressed closer to trial. Plaintiff’s
motion is therefore denied without prejudice to his renewal of the motion in advance of trial.
CONCLUSION
Defendants’ motion to dismiss (Dkt. #11) is granted. All of plaintiff’s claims are dismissed,
other than his Eighth Amendment claims against defendants Bradt and Griffin, based on their
alleged failure to protect plaintiff.
Plaintiff’s motion for sanctions (Dkt. #15) is denied without prejudice.
IT IS SO ORDERED.
_______________________________________
DAVID G. LARIMER
United States District Judge
Dated: Rochester, New York
October 28, 2014.
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