Brown v. Fischer et al

Filing 115

DECISION AND ORDER granting in part and denying in part Defendants' 80 Motion to Dismiss, denying Defendants' 80 Motion for Judgment on the Pleadings, and denying Plaintiff's 72 Motion for a Separation and Restraining Order. Signed by Hon. Elizabeth A. Wolford on 3/20/2020. (KAC) (A copy of this Decision and Order has been mailed to Plaintiff)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

TOMMY LEE BROWN,
Plaintiff,
DECISION AND ORDER
v.
6:15-CV-06108 EAW
MARK L. BRADT, et al.,
Defendants.

INTRODUCTION
Pro se prisoner Tommy Lee Brown (“Plaintiff”) asserts various constitutional
claims under 42 U.S.C. § 1983 stemming from his confinement at the Five Points
Correctional Facility (“Five Points”), Attica Correctional Facility (“Attica”), and Wende
Correctional Facility (“Wende”). (Dkt. 32). Presently before the Court are a motion to
dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) by defendants D. Gagnon
(“Gagnon”), T. Wright (“Wright”), Tracy Jones (“T. Jones”), Kristin Salotti (“Salotti”),
and L. Deming (“Deming”) (Dkt. 80); a motion for judgment on the pleadings pursuant to
Federal Rule of Civil Procedure 12(c) by W. Hughes (“Hughes”), Lisa Trapasso
(“Trapasso”), Yolevich, O’Neil, and Loraine Jones (“L. Jones”) (collectively the moving
defendants will be referred to herein as “Defendants”) (id.); and Plaintiff’s motion for a
separation and restraining order (Dkt. 72). For the following reasons, the Court grants in
part and denies in part Defendants’ motion to dismiss (Dkt. 80), denies Defendants’ motion

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for judgment on the pleadings (id.), and denies Plaintiff’s motion for a separation and
restraining order (Dkt. 72).
BACKGROUND
I.

Factual Background
The following facts are taken from the allegations in Plaintiff’s First Amended

Complaint and Plaintiff’s supplemental submissions. (Dkt. 18; Dkt. 18-1; Dkt. 32). The
Court omits the allegations pertinent to Plaintiff’s claims regarding Wende because the
Wende claims are not relevant to the instant motion to dismiss. As is required at this stage
of the proceedings, Plaintiff’s allegations are treated as true.
A. Attica Allegations
On February 27, 2012,1 Plaintiff, while incarcerated at Attica with a known history
of mental health issues including suicidal tendencies, was stabbed several times in the
recreation yard by another inmate, Geraldo Rodriguez, with a seven-inch shank. (Dkt. 32
at ¶¶ 88-89). Plaintiff sustained lacerations in the hands and arms as he attempted to defend
himself. (Id. at ¶ 89). Several prison officials, including defendants Bradt, Hughes, Lowe,
Mitchell and a number of unidentified John Doe Correction Officers, “participated [in]
and/or were aware of the Plaintiff being assaulted and, with deliberate indifference, failed
to provide proper aid and assistance to the Plaintiff.” (Dkt. 32 at ¶ 90; see Dkt. 1 at 15).
Plaintiff further alleges that, following Rodriguez’s attack, several correction officers

1

Although the First Amended Complaint prepared by counsel alleges that part of
these events took place on June 27, 2012 (Dkt. 32 at ¶ 88), it is clear from Plaintiff’s initial
complaint that the alleged attack by Rodriguez and the events that followed occurred in
February 2012 (Dkt. 1 at 16-19).
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assaulted him with batons and failed to provide medical attention until one hour after the
attack. (Id.). Defendants’ response to the Court’s request pursuant to Valentin v. Dinkins,
121 F.3d 72 (2d Cir. 1997), identified the potential officers who allegedly engaged in this
assault as Weston, Bucchett, Kazmierczak, and Wright. (Dkt. 41).
Plaintiff was seen at the Attica infirmary by Defendants Michalek and Rao, as well
as other John or Jane Doe employees. (Dkt. 33 at ¶ 102). Plaintiff alleges that the medical
staff’s “indifference to [his] condition” caused him to “sustain more pain and suffering”
and that “[he] now has nerve damage in his hands.” (Id. ¶¶ 102-03). After being seen at
the Attica infirmary, Plaintiff “needed to be transported to the hospital for further
treatment.” (Id. at ¶ 101).
After being assaulted, Plaintiff was falsely charged with “violating codes of conduct
including fighting and causing a disruption” (Dkt. 32 at ¶ 105), and was subsequently found
guilty and sentenced to one year in the special housing unit (“SHU”) by Defendant
Robinson. (See Dkt. 18 at 9).

Plaintiff successfully appealed his disciplinary

determination, and his charges were dismissed after he served his full one-year SHU
sentence. (Dkt. 32 at ¶ 107).
B. Five Points Allegations
On June 19, 2013, Plaintiff was confined in a strip cell at Five Points when a
correction officer demanded that Plaintiff end his hunger strike or the food “will be shoved
into [him].” (Id. at ¶¶ 123-24). Defendants Ranger, Bailor, Novak, Burns, Schmitt, Relf,
Carey, and Jones, as well as the individuals identified in the Valentin response as
Paradowski, Gagnon, Gionowski, Avery, and Drayse, then pushed Plaintiff to the ground
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and assaulted him with batons and other objects, causing injuries to his shoulder. (Id. at
¶ 125; see Dkt. 18-1; Dkt. 41). Plaintiff further alleges that defendants Mott and Dadson,
healthcare officials at the prison, failed to provide adequate treatment. Plaintiff was later
charged with assaulting the aforementioned correction officers. (Dkt. 32 at ¶ 126).
II.

Procedural Background
On March 2, 2015, Plaintiff filed the initial complaint in the instant matter, which

alleged the incidents at Attica and Five Points. (Dkt. 1). Upon screening by the Court on
June 27, 2016, Plaintiff was granted leave to proceed in forma pauperis, as well as leave
to file an amended complaint to re-allege any claims dismissed by the Court in its screening
order. (Dkt. 15). Also on June 27, 2016, Plaintiff submitted a supplemental pleading
concerning the incidents at Wende. (Dkt. 16). On July 14, 2016, Plaintiff moved to amend
the complaint and submitted two additional, separate pleadings concerning incidents at
Attica (Dkt. 18) and Five Points (Dkt. 18-1). He also filed several motions seeking the
appointment of counsel. (Dkt. 14; Dkt. 19; Dkt. 21). On February 22, 2017, the Court
granted Plaintiff’s motion to appoint counsel and assigned a pro bono attorney for the
limited purposed of drafting the Amended Complaint. (Dkt. 23; Dkt. 24). The Amended
Complaint was filed on July 11, 2017.2 (Dkt. 32).

Pursuant to the Court’s February 22, 2017, Order, Plaintiff’s appointed counsel
ceased to be his counsel upon the filing of the Amended Complaint on July 11, 2017. (Dkt.
23 (“[U]pon the filing by pro bono counsel of an amended complaint, pro bono counsel’s
representation of Plaintiff in this matter will terminate, and pro bono counsel will have no
further obligations or responsibilities to Plaintiff or to the Court in this matter.”)).
2

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The Court evaluated the Amended Complaint pursuant to the 28 U.S.C.
§§ 1915(e)(2)(B) and 1915A(a) criteria and found that some of Plaintiff’s claims were
sufficient to survive initial review and proceed to service. (Dkt. 40). The Court directed
service of the Amended Complaint, along with the previously filed supplemental pleadings,
and requested that the Attorney General of the State of New York (“Attorney General”)
ascertain, if possible, the full names of the John and Jane Doe defendants named in this
action pursuant to Valentin. (Dkt. 40 at 10-11).
On October 4, 2018, the Attorney General filed a Valentin response wherein
potential John and Jane Does were named. Plaintiff was instructed to file any objections
to the potential names of the John and Jane Does by March 1, 2019. (Dkt. 44). Plaintiff’s
response, dated February 27, 2019, was filed on March 11, 2019. (Dkt. 50).
Plaintiff had no objection to substituting in the potential defendants listed in the
Valentin response. (See id. at 2 (“At this time, I am not striking no [sic] Defendants[.]”)).
With respect to Gagnon, Plaintiff stated: “I honestly do not recall writing in any of my
grievances nor do I recall seeing in my Civil Complaint any of these officers. So I am very,
very disturbed and confused by this, and I wish to have this matter looked into and
corrected, if need be.” (Id. at 3). Plaintiff also noted about Wright: “I honestly am not sure
about [this name]. I know I never wrote such name[] in my grievances nor in my Civil
Complaint. So I am not sure if [he was] a part of assaulting me and in violating my rights.”
(Dkt. 50 at 4). Plaintiff’s Amended Complaint was deemed amended to reflect the full
names of the John and Jane Does as listed in the Valentin response. (Dkt. 62).

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O’Neil filed an answer to the Amended Complaint on April 4, 2019 (Dkt. 59),
Yolevich filed an answer on April 24, 2019 (Dkt. 64), Hughes filed his on May 1, 2019
(Dkt. 65), and L. Jones and Trapasso filed their answer on May 6, 2019 (Dkt. 66). On May
23, 2019, Plaintiff filed his motion for a separation and restraining order. (Dkt. 72).
Defendants filed the motion to dismiss and motion for judgment on the pleadings
on July 2, 2019. (Dkt. 80). After receiving several extension of time within which to file
a response, Plaintiff filed his opposition to the motions on November 8, 2019 (Dkt. 98),
and Defendants filed their reply on November 26, 2019 (Dkt. 100).
DISCUSSION
I.

Defendants’ Motions
Defendants have filed a motion to dismiss pursuant to Rule 12(b)(6) and a motion

for judgment on the pleadings pursuant to Rule 12(c). The Court addresses both motions
together.
A.

Legal Standard
1.

Motion to Dismiss

“In considering a motion to dismiss for failure to state a claim pursuant to Rule
12(b)(6), a district court may consider the facts alleged in the complaint, documents
attached to the complaint as exhibits, and documents incorporated by reference in the
complaint.” DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010). To
withstand dismissal, a complaint must set forth “enough facts to state a claim to relief that
is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim
has facial plausibility when the plaintiff pleads factual content that allows the court to draw
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the reasonable inference that the defendant is liable for the misconduct alleged.” Turkmen
v. Ashcroft, 589 F.3d 542, 546 (2d Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)).
“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
entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation
of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (internal
quotations and citations omitted). “To state a plausible claim, the complaint’s ‘[f]actual
allegations must be enough to raise a right to relief above the speculative level.’” Nielsen
v. AECOM Tech. Corp., 762 F.3d 214, 218 (2d Cir. 2014) (quoting Twombly, 550 U.S. at
555).
2.

Motion for Judgment on the Pleadings

“Judgment on the pleadings may be granted under Rule 12(c) where the material
facts are undisputed and where judgment on the merits is possible merely by considering
the contents of the pleadings.” McAuliffe v. Barnhart, 571 F. Supp. 2d 400, 402 (W.D.N.Y.
2008). “In deciding a Rule 12(c) motion for judgment on the pleadings, the court should
‘apply the same standard as that applicable to a motion under Rule 12(b)(6), accepting the
allegations contained in the complaint as true and drawing all reasonable inferences in
favor of the nonmoving party.’” Aboushama v. EMF Corp., 214 F. Supp. 3d 202, 205
(W.D.N.Y. 2016) (quoting Mantena v. Johnson, 809 F.3d 721, 727-28 (2d Cir. 2015)).

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B.

Five Points Defendants

As a preliminary matter, L. Jones, the Deputy Superintendent of Five Points, was
dismissed with prejudice by the Court’s August 29, 2018, Screening Order (Dkt. 40 at 9,
11), and the Court has previously instructed her termination from the caption of this lawsuit
(Dkt. 44 at 2 n.2). Accordingly, Defendants’ motion is denied as moot as to L. Jones, and
the Clerk of Court is instructed to terminate “Deputy Supt. Loraine Jones” from the caption.
Defendants argue that because the Amended Complaint was prepared by counsel,
Plaintiff is not entitled to the special solicitude normally afforded pro se plaintiffs. “It is
well-settled that pro se litigants generally are entitled to a liberal construction of their
pleadings, which should be read to raise the strongest arguments that they suggest.” Green
v. United States, 260 F.3d 78, 83 (2d Cir. 2001) (quotations and citation omitted). Courts
apply this doctrine on a document-by-document basis. See Pflaum v. Town of Stuyvesant,
937 F. Supp. 2d 289, 295 n.1 (N.D.N.Y. 2013) (affording special solicitude to complaint
drafted by pro se plaintiff, but not to opposition to memorandum of law drafted by counsel).
Accordingly, even if the Amended Complaint is not entitled to special solicitude, the
documents submitted by Plaintiff—such as his responses to the motion to dismiss (Dkt. 98)
and to the Court’s Order regarding the Valentin response (Dkt. 50)—require a liberal
construction.
Defendant argues that Gagnon should be dismissed because he “is now a defendant
only because of his having been named in the Valentin response,” and notes that Gagnon’s
“name does not appear in any pleadings whatsoever.” (Dkt. 80-1 at 8). The Amended
Complaint alleges that Plaintiff was assaulted on June 19, 2013, by several named
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defendants and John Does “currently unknown to the Plaintiff despite his attempts to
determine the names of these Defendants.” (Dkt. 32 at ¶¶ 124-25). Plaintiff’s initial filing
that describes the alleged events of June 19, 2013, named 10 defendants involved in
Plaintiff’s alleged assault, none of which are Gagnon. (Dkt. 18-1 at 4). The Valentin
response listed Gagnon as a potential John Doe involved with the alleged attack on Plaintiff
at Five Points because he is listed on a log sheet as one of the officers that monitored
Plaintiff during a self-harm watch on June 19, 2013.

(Dkt. 41; Dkt. 41-1 at 3).

Additionally, although Plaintiff noted that he did “not recall writing in any of my
grievances” or “seeing in my Civil Complaint” anything about Gagnon, he also stated he
was “not striking [any] defendants.” (Dkt. 50 at 2-3).
The Court finds it would not be appropriate to dismiss Gagnon at this time. Plaintiff
did not state that Gagnon was not involved in the alleged June 19, 2013, incident; only that
he does not recall including Gagnon in a grievance or in his Civil Complaint, which is
consistent with naming a John Doe defendant in a pleading. Carter v. Baney, No. 9:08CV-947 NAM/GJD, 2009 WL 3046385, at *2 (N.D.N.Y. Sept. 16, 2009) (“As for those
individuals whose names he does not know, for pleading purposes plaintiff can sue them
as ‘John Doe[.]’”). And although Plaintiff did not include John Doe defendants in his
initial submission regarding the alleged incident at Five Points, that submission is not the
operative pleading in this matter. The operative pleading—the Amended Complaint—does
list John Doe defendants as being involved with the alleged June 19, 2013, incident. (Dkt.
32 at ¶¶ 124-25); see Sanchez v. Nassau County, No. CV177335JFBAKT, 2019 WL
2438652, at *7 (E.D.N.Y. Feb. 28, 2019) (“[T]he Court finds Plaintiff’s allegations in his
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Amended Complaint to be controlling where, as here, there exists a factual
discrepancy[.]”), report and recommendation adopted, No. 17CV7335JFBAKT, 2019 WL
1253283 (E.D.N.Y. Mar. 18, 2019). The Court also notes that the Attorney General’s
Office provided Gagnon’s name in the Valentin response. If some of the names provided
in the Valentin response were provided in error, and Gagnon was not personally involved
in the alleged Five Points incident, see Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995)
(“It is well settled in this Circuit that personal involvement of defendants in alleged
constitutional deprivations is a prerequisite to an award of damages under § 1983.”
(internal quotation marks omitted)), that issue is more properly addressed during summary
judgment, see Green v. Harris, 309 F. Supp. 3d 10, 13 (W.D.N.Y. 2018) (granting motion
for summary judgment in lieu of answer where there was no dispute that defendant was not
involved). At this stage of proceedings, where the Court must draw all reasonable
inferences in Plaintiff’s favor, see Heller v. Consol. Rail Corp., 331 F. App’x 766, 767 (2d
Cir. 2009) (discussing that when reviewing a motion to dismiss pursuant to 12(b)(6) or
motion for judgment on the pleadings pursuant to 12(c), courts must “constru[e] the
complaint liberally, accept[] all factual allegations in the complaint as true, and draw[] all
reasonable inferences in the plaintiff’s favor”), and especially in light of Plaintiff’s
representation about not “striking” any defendants at this time, Defendants’ motion to
dismiss is denied as to Gagnon.
Defendants also contend that the claims against O’Neil should be dismissed because
there are no allegations of his personal involvement. In the Second Circuit, it is well settled
that “personal involvement of defendants in alleged constitutional deprivations is a
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prerequisite to an award of damages under § 1983.” Moffitt v. Town of Brookfield, 950
F.2d 880, 885 (2d Cir. 1991); McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir. 1977).
Plaintiff’s initial filing regarding the Five Points incident and the Amended
Complaint do not specify how O’Neil was involved in the alleged events. Instead, Plaintiff
alleges for the first time in his response to the instant motion to dismiss that O’Neil
“prevented the filing of [P]laintiff’s grievance,” and “did not lodge [P]laintiff’s
grievances.” (Dkt. 98 at 8). In other words, Plaintiff does not purport to assert an excessive
use of force claim against O’Neil as the Amended Complaint suggests, but an entirely
separate First Amendment denial of access to courts claim. “Plaintiff cannot amend his
Complaint to add additional causes of actions in his opposition papers.” Santana v. City of
New York, No. 15 CIV. 6715 (ER), 2018 WL 1633563, at *4 (S.D.N.Y. Mar. 29, 2018)
(collecting cases); see Mathie v. Goord, 267 F. App’x 13, 14 (2d Cir. 2008) (dismissing
claim asserted in pro se plaintiff’s opposition to motion to dismiss that was not
encompassed in plaintiff’s amended complaint). Even if Plaintiff had properly alleged a
denial of access to courts claim against O’Neil, dismissal would still be appropriate.
“[I]nterference with an inmate’s attempt to file a grievance will not give rise to a
constitutional claim, absent a showing that the defendants’ actions in that regard resulted
in actual prejudice to the inmate’s pursuit of a legal action,” Abney v. Jopp, 655 F. Supp.
2d 231, 234 (W.D.N.Y. 2009), and Plaintiff acknowledges that he was able to “file his
grievance in another facility” (Dkt. 98 at 8). Accordingly, the Court finds that dismissal
of the claims against O’Neil is appropriate and grants Defendants’ motion as to O’Neil.

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Defendants also contend that Plaintiff fails to state a claim against T. Jones, Salotti,
and Deming because he had not previously implicated them in his deliberate indifference
to a serious medical need claim. (Dkt. 80-1 at 9-11). Unlike the above situation with
O’Neil, the Amended Complaint does include a claim for failure to provide medical
treatment regarding the alleged June 19, 2013, incident at Five Points. (Dkt. 32 at ¶ 177).3
After receiving the Valentin response that suggested T. Jones, Salotti, and Deming as
potential Jane Doe defendants (Dkt. 41), Plaintiff indicated that those were the correct
names to substitute into his Amended Complaint (Dkt. 50 at 3). Plaintiff asserts in his
response to the motion to dismiss that T. Jones, Deming, and Salotti attended to his injuries
after the alleged incident on June 19, 2013, and that “they grossly ignored him and failed
to correctly document his injuries.” (Dkt. 98 at 8).
Courts in this Circuit have held:
[T]he mandate to read the papers of pro se litigants generously makes it
appropriate to consider a plaintiff’s papers in opposition to a defendant’s
motion to dismiss as effectively amending the allegations of the plaintiff’s
complaint, to the extent that those factual assertions are consistent with the
allegations in the plaintiff’s complaint.
Cusamano v. Sobek, 604 F. Supp. 2d 416, 461 (N.D.N.Y. 2009); see Gadson v. Goord, No.
96 CIV. 7544 (SS), 1997 WL 714878, at *1 (S.D.N.Y. Nov. 17, 1997) (“[T]he mandate to
read the papers of pro se litigants generously makes it appropriate to consider plaintiff’s
additional materials, such as his opposition memorandum.”). Plaintiff has asserted a

The claim states: “Defendant officers John Does and supervising officers owed a
duty of care to Mr. Brown to provide him with access to medical treatment after he had
been assaulted” (Dkt. 32 at ¶ 177), but also that it was asserted against “All Named Five
Points Defendants,” which included Jane Does (id. at 2, 29).
3

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deliberate indifference to medical needs claim against the Five Points defendants, and the
allegations against T. Jones, Salotti, and Deming in Plaintiff’s opposition are consistent
with the deliberate indifference allegations in the Amended Complaint when given the
special solicitude Plaintiff is entitled to as a pro se litigant.
However, the Court still finds that the deliberate indifference claims against T.
Jones, Salotti, and Deming should be dismissed. An Eighth Amendment claim arising out
of inadequate medical care requires a plaintiff-inmate to demonstrate that a defendant was
deliberately indifferent to a serious medical need. Estelle v. Gamble, 429 U.S. 97, 104
(1976); see also Farmer v. Brennan, 511 U.S. 825, 834 (1994). A claim for deliberate
indifference has both an objective and a subjective component. Wilson v. Seiter, 501 U.S.
294, 298-99 (1991). Objectively, a medical need is serious for constitutional purposes if it
presents “‘a condition of urgency’ that may result in ‘degeneration’ or ‘extreme pain.’”
Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998) (quoting Hathaway v. Coughlin,
37 F.3d 63, 66 (2d Cir. 1994)).

“Subjectively, the official charged with deliberate

indifference must have acted with the requisite state of mind, the ‘equivalent of criminal
recklessness.’” Lapierre v. County of Nassau, 459 F. App’x 28, 29 (2d Cir. 2012) (quoting
Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996)). Specifically, a plaintiff must
prove that the prison official knew of a serious medical condition and nonetheless
disregarded the plaintiff’s medical needs. Farmer, 511 U.S. at 837 (holding that a prison
official does not act in a deliberately indifferent manner towards an inmate unless he
“knows of and disregards an excessive risk to inmate health or safety”).

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Plaintiff alleges that T. Jones, Salotti, and Deming “grossly ignored” Plaintiff after
his alleged assault by officers. (Dkt. 98 at 8). The Court finds that such allegations are too
vague and conclusory to withstand a motion to dismiss. See Whitfield v. O’Connell, 402
F. App’x 563, 566 (2d Cir. 2010) (affirming dismissal of deliberate indifference claim
where “no non-conclusory allegations suggest that [the defendant] acted with a sufficiently
culpable state of mind”); Melvin v. County of Westchester, No. 14-CV-2995 (KMK), 2016
WL 1254394, at *10 (S.D.N.Y. Mar. 29, 2016) (collecting cases). Additionally, Plaintiff’s
allegations that T. Jones, Salotti, and Deming failed to correctly document his injuries (Dkt.
98 at 8) and negligently failed to provide him with medical treatment (Dkt. 32 at ¶¶ 176-77)
fail to plausibly allege anything more than malpractice or negligence, which is not
sufficient to state a constitutional claim for deliberate indifference to a serious medical
need. See Hill v. Curcione, 657 F.3d 116, 123 (2d Cir. 2011) (“Medical malpractice does
not rise to the level of a constitutional violation unless the malpractice involves culpable
recklessness[.]”); Carrasquillo v. City of New York, 324 F. Supp. 2d 428, 438 (S.D.N.Y.
2004) (“[M]ere allegations of medical malpractice or negligent failure to provide treatment
will not suffice to support an action under 42 U.S.C. § 1983.” (original alteration and
quotation omitted)). Accordingly, the Court finds the deliberate indifference and medical
negligence claims are insufficient as to T. Jones, Salotti, and Deming, and grants
Defendants’ motion as to those Defendants.

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C. Attica Defendants
Defendants argue Hughes should be dismissed from the instant matter because he is
a supervisory defendant, and Plaintiff has failed to allege his personal involvement. A
supervisory defendant’s personal involvement 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, 58 F.3d at 873.
In the instant matter, the allegations in the Amended Complaint against Hughes are
thin. Plaintiff alleges that Hughes as the superintendent of Attica would know the names
of the John Doe officers who allegedly attacked him on February 27, 2012. (Dkt. 32 at
¶ 94). Plaintiff also alleges that Hughes “owed a duty of care to the Plaintiff to prevent the
conduct alleged.” (Id. at ¶ 141). The supplemental complaint submitted by Plaintiff before
the Amended Complaint was filed also contained no allegations regarding Hughes. (Dkt.
18). However, the original complaint filed by Plaintiff included allegations that Hughes
was present “in the immediate area” of A Block where Plaintiff was allegedly beaten (Dkt.
1 at 15), and the Court did not dismiss the claims against Hughes in its initial screening of
the original complaint (Dkt. 15 at 9). Plaintiff discusses the allegations from the original
complaint in his opposition to the motion to dismiss (Dkt. 98 at 6), and those allegations
are consistent with the allegations and claims already in the Amended Complaint, see
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Cusamano, 604 F. Supp. 2d at 461. Additionally, when the Court screened Plaintiff’s
Amended Complaint, the Court incorporated its findings from the initial screening of
Plaintiff’s original complaint into the second Screening Order—the Court allowed the
allegations against Hughes to go forward despite the sparse allegations against Hughes in
the Amended Complaint, referencing Plaintiff’s allegations from the original complaint.
(See Dkt. 40 at 7 (allowing claim against Hughes to proceed after finding Plaintiff
“accused” Hughes of assaulting him “immediately after he was stabbed by a fellow
inmate”)). Accordingly, the Court finds that Plaintiff has sufficiently alleged Hughes’s
personal involvement and denies Defendants’ motion to dismiss as to Hughes.4
Defendants also contend that Trapasso and Yolevich should be dismissed from the
instant action because no specific claims were alleged against either of them in the
Amended Complaint. However, similar to Hughes, the Court allowed the claims alleged
in Plaintiff’s initial complaint against Trapasso and Yolevich to go forward in its initial
screening order (Dkt. 15 at 9-10), and incorporated those findings into its screening of the
Amended Complaint (see Dkt. 40 at 8 (allowing deliberate indifference to medical
condition claims to proceed against Yolevich and Trapasso, and noting they “are accused
of refusing to adequately document or treat Plaintiff’s medical and mental health

4

Defendants argue that Artus and Fischer were also supervisory defendants and have
both been terminated, and so Hughes should be too. (Dkt. 80-1). However, unlike Hughes,
there were no allegations regarding the personal involvement of Artus or Fischer in any of
Plaintiff’s submissions. Additionally, Bradt, who was also sued in his supervisory
capacity, has not yet been terminated because much like Hughes, Plaintiff alleged that
during the incident on February 27, 2012, Bradt “stood there watching and did not stop the
assault.” (Dkt. 18 at 7).
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conditions”)). As a result, the Court finds Plaintiff has made specific allegations as to
Trapasso and Yolevich and denies Defendants’ motion as to those Defendants.
Defendants also make an argument for dismissing Wright similar to what they
argued for dismissing Gagnon: Defendants argue that Wright’s name does not appear
anywhere in the pleadings and that he was only substituted in as a defendant because his
name was provided in the Valentin response. (Dkt. 80-1 at 12-13). They further argue that
even though John Does were listed in the Amended Complaint with regards to the alleged
incident at Attica on February 27, 2012, Plaintiff did not list John Does in his July 14, 2016,
supplemental submission about the alleged Attica incident—which was filed before the
Amended Complaint—and as a result, the Court should find that Wright was improperly
substituted as a defendant. (Id. at 13).
Similarly to Gagnon, the Court finds it would not be appropriate to dismiss Wright
at this time. Plaintiff has not stated that he does not think Wright was involved in the
alleged Attica incident, only that he is “not sure about” Wright’s name, and that he is “not
sure” if Wright was “a part of assaulting me.” (Dkt. 50 at 4). Plaintiff’s representation is
consistent with naming a John Doe defendant in a pleading. See Carter, 2009 WL
3046385, at *2. Additionally, Plaintiff’s supplemental submission regarding Attica is not
the operative pleading in this matter, the Amended Complaint is. Like with Gagnon, the
Amended Complaint lists John Doe defendants as being involved with the alleged February
27, 2012, incident. (See Dkt. 32 at ¶¶ 99, 102). The Court once again notes that the
Attorney General’s Office provided Wright’s name in the Valentin response, and
evaluating the propriety of the Valentin response’s contents is more properly addressed
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during summary judgment. See Green, 309 F. Supp. 3d at 13. At this stage of proceedings
where the Court must draw all reasonable inferences in Plaintiff’s favor, and especially in
light of Plaintiff’s representation about not “striking” any defendants at this time, Plaintiff’s
claims against Wright will be allowed to proceed.
II.

Plaintiff’s Motion for a Separation and Restraining Order
Plaintiff requests a separation and restraining order preventing him from being

housed at either Attica, Five Points, or Wende. (Dkt. 72). Plaintiff alleges that he was
“intentionally” transferred to Five Points, and that upon his transfer there, the staff at Five
Points has retaliated against him by delaying his receipt of mail, keeping his mail from
being sent to the Court, and destroying his legal documents. (Id.). Plaintiff is no longer
housed at Five Points and has instead been transferred to the Sullivan Correctional Facility.
(See Dkt. 97).
“In the Second Circuit, the standard for a temporary restraining order is the same as
for a preliminary injunction.” Jackson v. Johnson, 962 F. Supp. 391, 392 (S.D.N.Y. 1997).
In order to obtain a preliminary injunction, the moving party must establish the following:
(1) a likelihood of irreparable harm absent preliminary relief; (2) a likelihood of success
on the merits; (3) the balance of equities tipping in favor of the moving party; and (4) the
public interest is served by an injunction. See Winter v. Nat. Res. Def. Council, Inc., 555
U.S. 7, 20 (2008).
As an initial matter, Plaintiff’s submission does not contain any representations
regarding Wende or Attica. Accordingly, the Court finds Plaintiff has failed to establish
any of the elements necessary to obtain preliminary injunctive relief as to those facilities.
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Additionally, even if Plaintiff’s statements regarding his past treatment at Five
Points are true, the Court finds Plaintiff has failed to establish irreparable harm regarding
any future housing at Five Points. “It is well settled that a prisoner has no constitutional
right to serve a sentence in any particular institution or to be transferred or not transferred
from one facility to another.” Fox v. Lee, No. 915CV390TJMCFH, 2018 WL 5729289, at
*3 (N.D.N.Y. Nov. 2, 2018) (quoting Fisher v. Goord, 981 F. Supp. 140, 176 (W.D.N.Y.
1997)), appeal dismissed, No. 18-3544 (2d Cir. Mar. 5, 2019). While “prison authorities
may not transfer an inmate in retaliation for the exercise of constitutionally protected
rights,” Amaker v. Fischer, No. 10-CV-0977A SR, 2014 WL 8663246, at *8 (W.D.N.Y.
Aug. 27, 2014) (citing Davis v. Kelly, 160 F.3d 917, 920 (2d Cir. 1998)), report and
recommendation adopted, No. 10-CV-0977, 2015 WL 1822541 (W.D.N.Y. Apr. 22, 2015),
a plaintiff seeking relief from potential future harm must show more than a mere possibility
of irreparable harm, see Winter, 555 U.S. at 22 (“Issuing a preliminary injunction based
only on a possibility of irreparable harm is inconsistent with our characterization of
injunctive relief as an extraordinary remedy that may only be awarded upon a clear showing
that the plaintiff is entitled to such relief.”).

Plaintiff has failed to present facts

demonstrating that he will be transferred back to Five Points in the future, or that even if
he is, that he would face retaliatory conduct. See, e.g., Agostini v. Backus, No. 14-CV6188 CJS, 2015 WL 1579324, at *3 (W.D.N.Y. Apr. 9, 2015) (“Plaintiff’s request for
injunctive relief must be denied, since Plaintiff’s concern about future retaliation, even if
sincere, is speculative, and therefore is not sufficient to establish irreparable harm.”
(collecting cases)); Ward v. LeClaire, No. 9:07-CV-0026, 2007 WL 1532067, *2
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(N.D.N.Y. May 24, 2007) (“Plaintiff’s request for injunctive relief against future threats or
harassment by inmates and/or prison officials is too speculative to meet the irreparable
harm requirement.

Although Plaintiff claims that he will face future threats and

harassment, Plaintiff cannot claim with any certainty how, when, or where he will be
retaliated against, or that the retaliation will result in irreparable harm to Plaintiff.” (citation
and footnote omitted)). Accordingly, Plaintiff’s motion for a separation and restraining
order (Dkt. 72) is denied.
CONCLUSION
For the foregoing reasons, the Court grants in part and denies in part Defendants’
motion to dismiss (Dkt. 80), denies Defendants’ motion for judgment on the pleadings (id.),
and denies Plaintiff’s motion for a separation and restraining order (Dkt. 72). Defendants’
motion for judgment on the pleadings is denied as moot as to L. Jones; and is denied on
the merits as to Hughes, Trapasso, Yolevich, and O’Neil. Defendants’ motion to dismiss
pursuant to Rule 12(b)(6) is granted as to T. Jones, Salotti, and Deming; and is denied as
to Gagnon and Wright. The Clerk of Court is instructed to terminate “Deputy Supt. Loraine
Jones,” “Tracy Jones,” “Kristin Salotti,” and “L. Deming” from the caption, and to enter
judgment in favor of T. Jones, Salotti, and Deming.
SO ORDERED.

________________________________
ELIZABETH A. WOLFORD
United States District Judge
Dated: March 20, 2020
Rochester, New York
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