Brown v. Fischer et al

Filing 40

ORDER signed by Hon. Elizabeth A. Wolford on 8/29/2018. A copy of this Order, the Amended Complaint, and the supplemental pleading have been emailed to Ted O'Brien, Assistant Attorney General. A copy of this Order has been mailed to the Plaintiff at Five Points Correctional. (BK)

PS

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

TOMMY LEE BROWN,
ORDER

Plaintiff,
6:15-CV-06108EAW

V.

BRIAN FISCHER, et al..
Defendants.

INTRODUCTION

Currently before the Court is the Amended Complaint of pro se prisoner Tommy
Lee Brown ("Plaintiff) in which he asserts constitutional claims under 42 U.S.C. § 1983

stemming from his confinement at three New York State prisons. (Dkt. 32). Plaintiff

previously filed an original Complaint (Dkt. I) and a supplemental pleading concerning
incidents at the Wende Correctional Facility ("Wende") (Dkt. 16), which the Court

evaluated jointly under 28 U.S.C. §§ 1915(e)(2)(B) and 19I5A(a) in its prior screening
order (Dkt. 15). Thereafter, Plaintiff moved to amend the Complaint and submitted two

additional, separate pleadings concerning incidents at the Attica Correctional Facility
("Attica") (Dkt. 18) and the Five Points Correctional Facility ("Five Points") (Dkt. 18-1).
He also filed several motions seeking the appointment of counsel. (Dkt. 14; Dkt. 19; Dkt.

21). The Court granted Plaintiffs motion to appoint counsel and assigned a pro bono
attorney for the limited purposed of drafting the Amended Complaint. (Dkt. 23; Dkt. 24).

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The Court has evaluated the Amended Complaint pursuant to the 28 U.S.C.

§§ 1915(e)(2)(B) and 1915A(a) criteria, as discussed further below, and finds that some of
Plaintiffs claims are sufficient to survive initial review and proceed to service. In light of

Plaintiffs pro se status and the limited scope of counsel's representation, this Order directs
service ofthe Amended Complaint, along with the previously filed supplemental pleadings
(Dkt. 16; Dkt. 18; Dkt. 18-1), because they contain pertinent facts concerning the events
and conduct referred to in the Amended Complaint.
DISCUSSION

I.

Legal Standard

Section 1915 "provide[s] an efficient means by which a court can screen for and
dismiss legally insufficient claims." Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007).
The Court shall dismiss a complaint in a civil action in which a prisoner seeks redress from

a governmental entity, or an officer or employee of a governmental entity, if the court
determines that the action (1) fails to state a claim upon which relief may be granted or

(2) seeks monetary relief against a defendant who is immune from such relief. See 28

U.S.C. § 1915A(b)(l)-(2). Generally, the court will afford apro se plaintiff an opportunity
to amend or to be heard prior to dismissal "unless the court can rule out any possibility,
however unlikely it might be, that an amended complaint would succeed in stating a claim."
Abbas, 480 F.3d at 639 (internal quotation marks omitted). Leave to amend pleadings,

however, may be denied when amendment would be futile. See Cuoco v. Moritsugu, 222
F.3d 99, 112 (2d Cir. 2000).

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In evaluating the complaint, the Court must accept all factual allegations as true and
must draw all inferences in the plaintiffs favor. See Larkin v. Savage, 318 F.3d 138, 139
(2d Cir. 2003); King v. Simpson, 189 F.3d 284, 287 (2d Cir. 1999). "Specific facts are not

necessary," and the plaintiff"need only 'give the defendant fair notice ofwhat the... claim
is and the grounds upon which it rests.'" Erickson v. Pardus, 551 U.S. 89, 93, (2007)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks
and citation omitted); see also Boykin v. Keycorp, 521 F.3d 202, 213 (2d Cir 2008)

(discussing pleading standard in pro se cases after Twombly and stating that "even after
Twombly, dismissal of a pro se claim as insufficiently pleaded is appropriate only in the
most unsustainable of cases"). Although "a court is obliged to construe [pro se] pleadings

liberally, particularly when they allege civil rights violations," McEachin v. McGuinnis,
357 F.3d 197, 200 (2d Cir. 2004), even pleadings submitted pro se must meet the notice

requirements ofRule 8 of the Federal Rules of Civil Procedure. Wynder v. McMahon, 360
F.3d 73 (2d Cir. 2004).

Plaintiff brings this action pursuant to 42 U.S.C. § 1983. "To state a valid claim
under 42 U.S.C. § 1983, the plaintiff must allege that the challenged conduct (1) was

attributable to a person acting under color of state law, and (2) deprived the plaintiff of a
right, privilege, or immunity secured by the Constitution or laws of the United States."
Whalen v. County ofFulton, 126 F.3d 400, 405 (2d Cir. 1997). A prerequisite for liability
under a § 1983 claim is "personal involvement" in the alleged constitutional deprivation.
Spencer V. Doe, 139 F.3d 107, 112 (2d Cir. 1998).

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A defendant may be "personally involved" in causing a constitutional
deprivation if: (1) defendant participated directly in the alleged infraction; or
(2) acting in a supervisory capacity, defendant (a) failed to remedy a
continuing or egregious wrong after learning of a violation, (b) created a
policy or custom under which the unconstitutional practices occurred or
allowed such policy or custom to continue, or (c) was "grossly negligent" in
managing subordinates who actually caused the constitutional deprivation.

Candelaria v. Coughlin, 787 F. Supp. 368, 372 (S.D.N.Y. 1992) (citing Williams v. Smith,
781 F.2d 319, 323-24 (2d Cir. 1986)).
II.

PlaintifPs Allegations

A.

Attica Allegations

On February 27, 2012, 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 Rodriquez, with a seven-inch shank. Plaintiff
sustained lacerations in the hands and arms as he attempted to defend himself. Several

prison officials, including Defendants Bradt, Hughes, Robinson, Brown, Noeth, Thomas,
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 provideproper aid and assistance to the Plaintiff." (Dkt. 32 at 13). Plaintiff further
alleges that, following Rodriquez's attack, several John Doe Correction Officers assaulted
him with batons and failed to provide medical attention until one hour after the attack. {Id.
at 14-15).

Plaintiff was seen at the Attica infirmary by Defendants Michalek and Rao, as well

as other John or Jane Doe employees. Plaintiff alleges that the medical staffs "indifference

to [his] condition" caused him to "sustain more pain and suffering" and that "[he] now has
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nerve damage in his hands." {Id. at 15). After being seen at the Attica infirmary, Plaintiff
"needed to be transported to the hospital for further treatment." {Id.).
After being assaulted, Plaintiffwas falsely charged with "violating codes ofconduct
including fighting and causing a disruption," 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 had served his full one-year SHU sentence.
B.

Wende Allegations

On January 13, 2013, Plaintiff, while confined to the SHU and/or medical unit of
Wende, was provided with a razor by Correction Officer Reid, despite Plaintiffs placement
on suicide watch and his known mental health problems. Plaintiff used the razor to cut

himself in the shower. Rather than receiving immediate medical attention. Plaintiff was

restrained and assaulted by Officers Hamilton, Andrews, Reid, and Londono at the

direction of Sgt. Meara.

In his supplemental pleading. Plaintiff further alleges that

Hamilton used the razor blade to cut off Plaintiff s dreadlocks, stating, "Rastafarians are

not allowed in this SHU." (Dkt. 16 at 3). Plaintiff was then moved, naked, from the
bathroom to the medical unit, where Defendant Nurse Amy G. failed to provide adequate

medical attention and incorrectly recorded Plaintiffs weight as being 20 pounds higher
than his actual weight. (Dkt. 32 at 17).
C.

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
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into [him]." {Id. at 18). Defendants Ranger, Bailor, Novak, Bums, Schmitt, Relf, Carey,
and Jones then pushed Plaintiff to the ground and assaulted him with batons and other
objects, causing injuries to his shoulder. {Id.\ see Tiki. 18-1). 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.
III.

Constitutional Claims

A.

Excessive Force and Failure to Protect

The Supreme Court has "held repugnant to the Eighth Amendment punishments
which are incompatible with 'the evolving standards of decency that mark the progress of
a maturing society.'" Estelle v. Gamble, 429 U.S. 97, 102-03 (1976) (quoting Trop v.
Dulles, 356 U.S. 86,100-01 (1958)). The standard for determining whether prison officials

have violated the Eighth Amendment by using excessive physical force is "whether force
was applied in a good-faith effort to maintain or restore discipline, or maliciously and
sadistically to cause harm." Hudson v. McMillian, 503 U.S. 1, 7 (1992). To assess an

Eighth Amendment claim, the Court must consider both the subjective and the objective
components ofthe alleged violation. See Davidson v. Flynn, 32 F.3d 27,29 (2d Cir. 1994).
The objective component considers the "seriousness of the injury," while the subjective

component addresses whether the defendant possessed a "wanton" state of mind while
engaging in the use of force. Hudson, 503 U.S. at 6-7.

With respect to failure to protect, the Second Circuit has explained as follows:

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The Eighth Amendment requires prison officials to take reasonable measures
to guarantee the safety of inmates in their custody. Moreover, under 42
U.S.C. § 1983, prison officials are liable for harm incurred by an inmate if
the officials acted with "deliberate indifference" to the safety of the inmate.
However, to state a cognizable section 1983 claim, the prisoner must allege
actions or omissions sufficient to demonstrate deliberate indifference; mere

negligence will not suffice.
The test for deliberate indifference is twofold. First, the plaintiff must
demonstrate that he is incarcerated under conditions posing a substantial risk
of serious harm. Second, the plaintiff must demonstrate that the defendant
prison officials possessed sufficient culpable intent. The second prong of the
deliberate indifference test, culpable intent, in turn, involves a two-tier
inquiry. Specifically, a prison official has sufficient culpable intent if he has
knowledge that an inmate faces a substantial risk of serious harm and he
disregards that risk by failing to take reasonable measures to abate the harm.

Hayesv. N.Y.C. Dep'tofCorr., 84F.3d614,620 (2dCir. 1996) (internal citations omitted)
{citing Farmer V. Brennan, 511 U.S. 825, 833 (1994)).
In this case, the Court finds that, under the Eighth Amendment framework discussed

above. Plaintiff has adequately alleged, for purposes of initial review, claims of excessive
force and failure to protect against: Attica Defendants Bradt, Hughes, Lowe, Mitchell, and
the unidentified John Doe Correction Officers 1-8, who are accused of assaulting Plaintiff

immediately after he was stabbed by a fellow inmate and/or failing to protect Plaintifffirom
assault; Wende Defendants Meara, Hamilton, Andrews, Reid and Londono, who are

accused of assaulting Plaintiff immediately after he harmed himself with a razor while on
suicide watch and/or failing to protect him from assault; and Five Points Defendants

Ranger, Bailor, Novak, Bums, Carey, Schmitt and John and Jane Doe Correction Officers
1-8, who are accused of assaulting Plaintiff and striking him with batons and/or failing to
protect him from assault.

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C.

Deliberate Indifference to Medical Condition

A claim of inadequate medical care rises to the level of a constitutional violation
only where the facts alleged show that a defendant was deliberately indifferent to a
plaintiffs serious medical needs. See Estelle, 429 U.S. at 104-05; Ross v. Kelly, 784 F.
Supp. 35, 43-44 (W.D.N.Y.), aff'd, 970 F.2d 896 (2d Cir. 1992). "A serious medical

condition exists where 'the failure to treat a prisoner's condition could result in further

significant injury or the unnecessary and wanton infliction of pain.'" Harrison v. Barkley,
219 F.3d 132, 136-37 (2d Cir. 2000) (quoting Chance v. Armstrong, 143 F.3d 698, 702 (2d

Cir. 1998) (internal quotation marks omitted)). "[An] isolated failure to treat, without more
may in fact rise to the level of a constitutional violation if the surrounding circumstances

suggest a degree of deliberateness, rather than inadvertence, in the failure to render
meaningful treatment."

Gil v. Vogilano, 131 F. Supp. 2d 486, 492 (S.D.N.Y. 2001)

(internal quotation marks and alterations omitted).
Plaintiff has adequately alleged, for purposes of initial review, claims of deliberate

indifference to medical condition against: Attica Defendants Bradt, Hughes, Lowe,
Mitchell, and John Doe Officers, who allegedly assaulted Plaintiff instead of providing
medical assistance after he was stabbed by a fellow inmate; Attica medical and mental

health staff, including Defendants Rao, Yolevich, Michalek, and Trapasso, who are

accused of refusing to adequately document or treat Plaintiffs medical and mental health
conditions; Wende Defendants Hamilton, Andrews, Reid, Meara, Londono, Graham, and

Amy G., who are accused of assaulting Plaintiff and/or failing to provide medical attention
immediately after he cut himself with a razor; and Five Points Defendants Mott and
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Dadson. Plaintiff alleges that he sustained permanent injuries as a result of the delayed
medical treatment, including nerve damage in his hands.
The Court concludes, however, that there are no allegations in the Amended

Complaint or the supplemental pleadings that Defendants Abbasey and Mental Health Unit
Chief Doe, and Nurse Brenda Jones were personally involved in any deliberate delay of

treatment or failure to provide medical care to Plaintiff.

Therefore, the deliberate

indifference to medical condition claims against them are dismissed with prejudice. With

respect to the remaining Defendants, the Court finds that the pleadings are devoid offactual
allegations against former DOCCS Commissioner Fischer, Attica Deputy Superintendent
Artus, Attica Captain Robinson, Attica Captain Brown, Defendant Noeth, Lt. Thomas,
Attica Lt. John Doe, Attica C.O. Hembrook, Attica Grievance Supervisor Janes, and Attica

Sergeants Doe 1-3, and Five Points Superintendent Sheehan, Deputy Superintendent Jones,

SuperintendentThoms, Deputy Superintendent Coveny, and Lt. Marcado. The Court finds
that because Plaintiff has failed to assert the personal involvement of these Defendants in

a constitutional deprivation, the claims against them arising under § 1983 are dismissed
with prejudice. See Candelaria, 787 F. Supp. at 372.
D.

Remaining Claims

In its prior order, this Court found that Plaintiff had sufficiently pleaded a violation
of his right to the free exercise of religion against Wende Defendants Meara and Hamilton

in his supplemental pleading. (Dkt. 15 at 11; see Dkt. 16 at 3). Therefore, Plaintiffs
federal free exercise claim shall proceed to service against Meara and Hamilton in
accordance with the prior order. (Dkt. 15 at 11).

Finally, the Amended Complaint also asserts a number state law claims sounding in
assault and negligence. Insofar as Plaintiffs federal and state claims "derive from a

common nucleus of operative fact," the state claims fall under the Court's supplemental
jurisdiction and shall proceed to service with the federal claims. Frederick v. State, 232 F.

Supp. 3d 326, 331 (W.D.N.Y. 2017) (quoting United Mine Workers ofAm. v. Gibbs, 383
U.S. 715, 725 (1966)).
E.

John and Jane Doe Defendants

As noted above. Plaintiff has listed eight Attica John Doe Correction Officers and

eight Five Points John and Jane Doe Correction Officers. Pursuant to Valentin v. Dinkins,

121 F.3d 72 (2d Cir. 1997) (per curiam), the Court again requests that the Attorney General
of the State of New York ascertain, if possible at this time, the full names of these

Defendants. The Attorney General is also requested to provide the addresses where these

Defendants can currently be served. The Attorney General need not undertake to defend
or indemnify these individuals at this juncture. This Order merely provides a means by
which Plaintiff may name and properly serve the defendants as instructed by the Second
Circuit in Valentin.

The Attorney General of the State of New York is hereby requested to produce the
information specified above regarding the identities of these Defendants within 35 days.
Once this information is provided to the Court, Plaintiffs complaint shall be deemed
amended to reflect the full names of the John and Jane Does, summonses shall be issued
and the Court directs service on those Defendants.

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The Clerk of Court shall send a copy of this Order, the Amended Complaint, (Dkt.
32), and the supplemental pleadings (Dkt. 16; Dkt. 18; Dkt. 18-1), to Ted O'Brien,

Assistant Attorney General in Charge, 144 Exchange Street, Rochester, New York 14614.
CONCLUSION

For the reasons set forth above, the Amended Complaint (Dkt. 32) and supplemental
pleadings (Dkt. 16; Dkt. 18; Dkt. 18-1) shall proceed to service in accordance with this
Order.
ORDER

IT HEREBY IS ORDERED that Plaintiffs federal claims against Defendants

Abbasey, Mental Health Unit Chief Doe, Nurse Brenda Jones, former DOCCS
Commissioner Fischer, Attica Deputy Superintendent Artus, Attica Captain Robinson,

Attica Captain Brown, Defendant Noeth, Lt. Thomas, Attica Lt. John Doe, Attica C.O.
Hembrook, Attica Grievance Supervisor Janes, and Attica Sergeants Doe 1-3, and Five
Points Superintendent Sheehan, Deputy Superintendent Jones, Superintendent Thoms,

Deputy Superintendent Coveny, and Lt. Marcado are dismissed with prejudice, and these
Defendants are terminated from this action;

FURTHER, that the Clerk ofthe Court is directed to cause the United States Marshal

to serve copies of the Summons, the Amended Complaint (Dkt. 32) and the supplemental
pleadings (Dkt. 16; Dkt. 18; Dkt. 18-1) and this Order upon the remaining named
Defendants and John and Jane Doe Correction Officers, once identified, without Plaintiffs

payment therefor, unpaid fees to be recoverable ifthis action terminates by monetary award
in Plaintiffs favor;
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FURTHER, the Clerk of Court is directed to forward a copy of this Order by email
to Ted O'Brien, Assistant Attorney General in Charge, Rochester Regional Office

<Ted.O'[e-mail]>;
FURTHER, that, pursuant to 42 U.S.C. § 1997e(g), Defendants are directed to
respond the Amended Complaint upon service.
SO ORDERED.

tates District Judge
Dated: August 29, 2018
Rochester, New York

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