Briglin v. Baker et al

Filing 29

DECISION AND ORDER The motions to dismiss filed by defendants Brooks Baker, Philip Roche, Eric Tyner and Donald Lewis 17 , by defendants Eric Hurd and John Karasiewicz 23 , and by defendants Michelle Artus, Gregory Brewer, Marcia Fries, Eric M. Hur d, John Karasiewicz, J. McPhillips, J. McReady, and Gregory Saj 26 are granted, and the complaint is dismissed. Signed by Hon. David G. Larimer on 10/1/2018. Copy of this Decision and Order sent by First Class Mail to plaintiff Todd Briglin on 10/1/2018 to his address of record. (KAH)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________________
TODD BRIGLIN,
DECISION AND ORDER
Plaintiff,
15-CV-6162L
v.

BROOKS T. BAKER, ESQ., DA, et al.,
Defendants.
___________________________________________

Plaintiff, Todd Briglin, appearing pro se, commenced this action under 42 U.S.C. § 1983.
At the time he filed the complaint in March 2015, plaintiff was an inmate in the custody of the
New York State Department of Corrections and Community Supervision (“DOCCS”). Plaintiff
filed an amended complaint (Dkt. #9) on November 9, 2015. It appears from the DOCCS Inmate
Lookup Service, http://nysdoccslookup.doccs.ny.gov/, that plaintiff was released from custody in
May 2016.
Plaintiff has sued several defendants, as described in more detail below, but in general
they are associated either with Steuben County (“County defendants”) or New York State (“State
defendants”). Plaintiff alleges that defendants violated his federal constitutional rights in a
number of respects, arising out of his criminal prosecution, conviction, and subsequent
incarceration. Both the County and State defendants have moved to dismiss plaintiff’s claims

pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Plaintiff has not responded to
the motions.1

BACKGROUND
While plaintiff’s allegations in the amended complaint (Dkt. #9) are prolix and somewhat
convoluted, they may fairly be summarized as follows. In May 2012, plaintiff was arrested in
connection with an alleged burglary and illegal sale of firearms. During the ensuing prosecution,
he entered into a cooperation agreement, with the understanding that in exchange for his
cooperation, some charges would later be dropped, and that he would receive some leniency if he
were convicted and sentenced on the remaining charges.
Plaintiff alleges that as part of his cooperation, he provided investigators with information
concerning certain other individuals. He alleges that he was assured by investigators from the
Steuben County Sheriff’s Office and the New York State Police that the fact of his cooperation
would be kept confidential.
Based partly on the information provided by plaintiff, several other people were
eventually charged and convicted of certain crimes. Plaintiff alleges, however, that word of his
cooperation was leaked to the news media, and thereby made known to those individuals.
Plaintiff ultimately pleaded guilty to several charges, in January 2013, as part of a plea
deal. Apparently some other charges were dismissed, as promised. He alleges that he once again
received assurances from defendants, this time that he would not be placed in the same facility as

1

Unlike on a motion for summary judgment, a plaintiff’s failure to respond to a motion to dismiss does not
relieve the Court of its obligation to consider the merits of plaintiff’s claims. See McCall v. Pataki, 232 F.3d 321,
322 (2d Cir. 2000); Crenshaw v. Dondrea, 278 F.Supp.3d 667, 669 (W.D.N.Y. 2017).

2

his codefendants, i.e., the persons about whom he had provided information, and that he would
be kept safe from them.
Following his conviction, plaintiff was incarcerated at Livingston Correctional Facility
(“Livingston”). He states that upon arrival, he was interviewed by Sergeant Macready, and that
based on established intake procedures, plaintiff gave Macready a list of people in the prison
system who might pose a threat to plaintiff, in other words, his “enemies.”
After his arrival, however, plaintiff learned that Robert Mills was also an inmate there.
Mills was one of the individuals about whom plaintiff had made statements to investigators, and
he was one of the persons whom plaintiff identified to Macready as a potential enemy.
Plaintiff alleges that after he learned that Mills was also an inmate at Livingston, he
informed his mother in a telephone conversation about his concerns, and she contacted Assistant
Public Defender Philip Roche, who had been assigned to represent plaintiff during his criminal
prosecution. Roche allegedly told plaintiff’s mother that he would take steps to address
plaintiff’s concerns.
According to plaintiff, on July 17, 2013, while he was working in the maintenance
department, he was warned by a fellow inmate that someone planned to attack him for being a
“rat.” Plaintiff alleges that he then went to see his job supervisor, Gregory Brewer, and told him
about the impending assault. Brewer said that he would inform a sergeant.
About an hour and a half later, plaintiff was assaulted in the mess hall. Plaintiff states
that he was sitting at a table when an inmate (whom plaintiff does not identify) walked up and
struck plaintiff in the back of the head, repeatedly. Plaintiff alleges that there were about seven

3

correction officers nearby, but they did nothing to intervene. Eventually plaintiff was able to get
to his feet, whereupon he was escorted out by an officer.
Plaintiff was then taken to the medical building, where he was seen by a nurse. He
alleges that he received no medication or other treatment at that time.
Plaintiff’s symptoms worsened, however, to the point where he had two large swellings
on his head. Almost a month after the assault, he was taken to see Dr. Marcia Fries, a staff
physician at Livingston. She sent him for a consult with an ophthalmologist and a neurologist.
Both prescribed certain treatment, but plaintiff alleges that he has continued to have problems
with his right eye, and daily headaches.
In October 2014, plaintiff was transferred to Hale Creek Correctional Facility. There he
was seen by Dr. McPhillips. McPhillips prescribed propranolol, but due to the negative side
effects, plaintiff was taken off that medication and given ibuprofen instead.
In his amended complaint, plaintiff has asserted six causes of action, which will be
described in more detail below. The current named defendants are the County
defendants–Steuben County District Attorney Brooks Baker, Assistant Public Defender Philip
Roche, and Steuben County Sheriff’s Office Investigators Eric Tyner and Donald Lewis–and the
State defendants: State Police Investigators Eric Hurd and John Karasiewicz; Livingston
Superintendent Michelle Artus; Livingston Deputy Superintendent for Security (“D.S.S.”)
Gregory Saj; Maintenance Supervisor Gregory Brewer; Sergeant Macready; and doctors Fries
and Phillips. Plaintiff has also asserted claims against several “John Doe” defendants, who are
officers that were allegedly present, but failed to intervene, when plaintiff was assaulted. Those

4

defendants have not been identified or served. Plaintiff seeks compensatory and punitive
damages in an unspecified amount.

DISCUSSION
I. Claims Against the County Defendants
Plaintiff’s claims against the County defendants must be dismissed, for a variety of
reasons.
First, plaintiff’s claim against Roche (in the second cause of action, which alleges several
constitutional violations) must be dismissed. “Section 1983 establishes a private right of action
for money damages against state officials, acting ‘under color’ of law, who violate a
constitutional or statutory right.” Edrei v. Maguire, 892 F.3d 525, 532 (2d Cir. 2018) (quoting
42 U.S.C. § 1983). But as the Second Circuit has made clear, “public defenders or
court-appointed defense attorneys do not act ‘under color of law.’” Housand v. Heiman, 594
F.2d 923, 924-25 (2d Cir. 1979). There is thus no basis for a § 1983 claim against Roche.
The claims against defendant Baker (who is named in the first and second causes of
action) must also be dismissed. Plaintiff’s claims against Baker in these two counts are to a great
extent duplicative of each other, but the gist of them is that Baker assured plaintiff that if plaintiff
agreed to cooperate, his confidentiality would be protected, and he would not have to worry
about being placed in the same facility as any of the individuals named by plaintiff.
Baker is immune from liability, however. Prosecutors are entitled to absolute immunity
when they engage in activities “intimately associated with the judicial phase of the criminal
process,” Imbler v. Pachtman, 424 U.S. 409, 430 (1976), and done “in the course of [their] role
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as ... advocate[s] for the State,” Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993).
“Prosecutorial immunity from § 1983 liability is broadly defined, covering virtually all acts,
regardless of motivation, associated with the prosecutor’s function as an advocate.” O’Neal v.
Morales, 679 Fed.Appx. 16, 18 (2d Cir. 2017) (quoting Hill v. City of New York, 45 F.3d 653,
661 (2d Cir. 1995)).
The Second Circuit has held that plea bargaining is a prosecutorial function that confers
absolute immunity. See Kent v. Cardone, 404 Fed.Appx. 540, 542-43 (2d Cir. 2011) (citing
Taylor v. Kavanaugh, 640 F.2d 450, 453 (1981)). Baker’s alleged assurances to plaintiff about
the confidentiality of his cooperation were made in the context of plea bargaining negotiations.
Thus, he is absolutely immune from liability with regard to those statements.
Even if Baker’s alleged assurances we viewed as investigative, rather than prosecutorial,
Baker would still be entitled to dismissal of plaintiff’s claims against him on the basis of
qualified immunity. See O’Neal v. Morales, 679 Fed.Appx. 16, 17 (2d Cir. 2017) (only qualified
immunity attaches when a prosecutor performs “investigative” functions) (citing Buckley, 509
U.S. 259).
“Qualified immunity shields public officials from an action for civil damages, to the
extent that their challenged acts do not violate ‘clearly established statutory or constitutional
rights of which a reasonable person would have known.’” Ivery v. Baldauf, 284 F.Supp.3d 426,
442 (W.D.N.Y. 2018) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “[Q]ualified
immunity is an immunity from suit rather than a mere defense to liability ... .” Pearson v.
Callahan, 555 U.S. 223, 231 (2009). Accord Bryant v. Egan, 890 F.3d 382, 386 (2d Cir. 2018).

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On a motion to dismiss, the qualified immunity defense may be established if it is “based on facts
appearing on the face of the complaint.” McKenna v. Wright, 386 F.3d 432, 436 (2d Cir. 2004).
There is no clearly established right that could have been violated here, and Baker is
therefore entitled, at the least, to qualified immunity. For one thing, a state’s failure to protect an
individual from private violence does not amount to a due process violation. DeShaney v.
Winnebago County Dep't of Soc. Serv., 489 U.S. 189, 195 (1989); Sanchez v. City of New York,
__ Fed.Appx. __, 2018 WL 2670561, at *2 (2d Cir. June 5, 2018).2
The Second Circuit has recognized two exceptions to that general rule, however.
Specifically, a state “may owe a constitutional obligation to the victim of private violence” if
(1) there is a “special relationship” between the state and the individual; or (2) the state has
created the danger. See Matican v. City of N.Y., 524 F.3d 151, 155 (2d Cir. 2008). In addition to
showing that one of these exceptions applies, the plaintiff must also show that the defendant’s
conduct was “‘so egregious, so outrageous, that it may fairly be said to shock the contemporary
conscience.’” Id. (quoting County of Sacramento v. Lewis, 523 U.S. 833, 847 n.8 (1998)).
Neither exception applies here.
In a factually similar case, the district court in Johnson v. City of New York, No.
00CIV.3626, 2000 WL 1335865 (S.D.N.Y. Sept. 15, 2000), held that a prosecutor’s alleged
promise to protect an inmate who agreed to testify against his codefendants did not create a
2

Although plaintiff cites several other constitutional rights in his claims against Baker, they are
self-evidently inapplicable. Since there was no search or seizure here, the Fourth Amendment does not apply. See
Briggs v. County of Monroe, 293 F.Supp.3d 379, 386 (W.D.N.Y. 2018). And since there is no indication from the
complaint that Baker had any control over plaintiff’s conditions of confinement, there is no basis for an Eighth
Amendment claim against Baker. See Reimann v. Hanley, No. 16 C 50175, 2016 WL 5792679, at *6 (N.D.Ill. Oct.
4, 2016) (plaintiff’s claim against prosecutors, arising out of their alleged revealing of his identity as an informant,
was in the nature of a due process claim, not an Eighth Amendment claim, since “the police and prosecutors named
in plaintiff’s complaint were not his jailers”) (citing Coyne v. Cronin, 386 F.3d 280, 286-87 (1st Cir. 2004)).

7

special relationship giving rise to a constitutional right to protection from those codefendants.
As to the “special relationship” exception, the court noted that the Second Circuit has
“considered and rejected claims against prosecutors for failure to protect a witness from attack by
a third party.” 2000 WL 1335865, at *4 (citing Barbera v. Smith, 836 F.2d 96, 100-01 (2d Cir.
1987); Ying Ging Gan v. City of New York, 996 F.2d 522, 533-34 (2d Cir. 1993)). The court
added that it was “aware of [no case] where it has been held that a prosecutor’s alleged promise
to protect an inmate who agrees to testify creates a special relationship that gives rise to a
constitutional right to protection from a third party.” Id.
The relevant law in this circuit has not changed since Johnson was decided. See
Delrosario v. City of New York, No. 07 Civ. 2027, 2010 WL 882990, at *12 (S.D.N.Y. Mar. 4,
2010) (stating that the “special relationship that exists between prison officials and inmates ... has
not been extended to reach other state actors”); Newman v. Gonzalez, 05 Civ. 5215, 2007 WL
674698, *2 (E.D.N.Y. Mar. 5, 2007) (Barbera “held that a prosecutor was entitled to qualified
immunity because there was no clearly established duty to protect the witness at the time of his
death. No right has since been established”) (internal citations omitted).
There is also no basis to apply the “state-created danger” exception. That “exception
does not apply ... where [state] actors took no affirmative action to encourage or assist the private
citizen” who injured the plaintiff. Sanchez, __ Fed.Appx. at __, 2018 WL 2670561, at *2. There
are no facts alleged here that would support such a finding with respect to Baker.
Furthermore, the attack here occurred over a year after plaintiff entered into the
cooperation agreement, and after he had been convicted and sent to prison. His conviction and
incarceration effectively ended Baker’s involvement in the case. See Delrosario, 2010 WL
8

882990, at *12 (“Plaintiff has cited no authority, and this Court can find none, that requires
prosecutors to step into the shoes of prison officials and safeguard prisoners”). Thus, any link
between Baker’s alleged actions and the assault is simply too attenuated to state a plausible claim
against Baker.
Among the County defendants, that leaves Investigators Tyner and Lewis. Plaintiff
alleges that they participated in the discussions leading up to plaintiff’s agreement to cooperate.
I find as a matter of law that Tyner and Lewis are entitled to qualified immunity, for the
same reasons stated with respect to Baker. Again, my finding that Baker is entitled to qualified
immunity was premised on the assumption, for the sake of argument, that Baker was acting in an
investigatory rather than a prosecutorial role. A fortiori, Tyner and Lewis are also entitled to
immunity, since they were unquestionably acting as investigators. Accepting the truth of
plaintiff’s allegations in the complaint, their involvement was no greater than Baker’s. Since, as
explained above, their actions did not violate any clearly established rights of which a reasonable
person would have known, they are immune from suit.
Aside from the flaws in plaintiff’s claims against the particular County defendants, his
claims against them fail in a broader substantive sense. Plaintiff’s conspiracy claims must be
dismissed, as he has alleged no more than vague, conclusory assertions, unsupported by factual
allegations. “It is well settled that claims of conspiracy ‘containing only conclusory, vague, or
general allegations of conspiracy to deprive a person of constitutional rights cannot withstand a
motion to dismiss.’” Gallop v. Cheney, 642 F.3d 364, 369 (2d Cir. 2011) (citation omitted).
Plaintiff’s claim of malicious prosecution fails for the obvious reason that plaintiff was
convicted of the charges against him. “In the context of § 1983 malicious prosecution cases, ...
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as in state malicious prosecution cases, the tort cannot stand unless the underlying criminal cases
‘finally end[ ] in failure.’” Poventud v. City of New York, 750 F.3d 121, 131 (2d Cir. 2014)
(quoting DiBlasio v. City of New York, 102 F.3d 654, 657 (2d Cir. 1996)) (en banc); see also
DiBlasio, 102 F.3d at 656-57 (affirming dismissal of § 1983 malicious prosecution cause of
action for failure to state a claim, because plaintiff did not allege that the criminal proceeding
against him terminated in his favor).
To the extent that plaintiff’s complaint can be read as implying the invalidity of his
conviction, such claims are barred by Heck v. Humphrey, 512 U.S. 447 (1994). In Heck, the
Supreme Court held that “when a state prisoner seeks damages in a § 1983 suit, the district court
must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity
of his conviction or sentence; if it would, the complaint must be dismissed.” Id. at 487.
Although plaintiff does expressly request that his conviction be overturned, he does allege
that Baker failed to live up to promises that plaintiff would not be charged with certain crimes,
that on at least one occasion he was interviewed without the benefit of counsel, and that the
purported factual basis for the charges against him was inaccurate. See Amended Complaint
¶¶ 7, 8, 11. Arguably, then, his complaint could be read as implying the invalidity of his
conviction. As explained, though, under Heck, any claims based on some alleged invalidity of
plaintiff’s conviction must be dismissed.

II. Claims Against the State Defendants
As stated, plaintiff has sued eight named State defendants, as well as several unnamed
“John Doe” defendants.
10

Two of the state defendants, Hurd and Karasiewicz, are New York State Police
investigators. Their involvement in the underlying events was largely the same, in all material
respects, as Tyner’s and Lewis’s. See Amended Complaint ¶¶ 6-23. The only distinction among
them of note is that plaintiff alleges that on one occasion, when plaintiff was in Investigator
Lewis’s office at the Steuben County Jail, Karasiewicz told him “that he was sorry that
[plaintiff’s] name was in the paper and that he could not keep his promise [of confidentiality] as
the people above him made the call.” Amended Complaint ¶ 9.
For the reasons stated with respect to Tyner and Lewis, the Court finds that the claims
against Hurd and Karasiewicz must be dismissed. As stated above, even assuming the truth of
plaintiff’s factual allegations, the investigators, county or state, did not violate any clearly
established rights of which a reasonable person would have known. DeShaney, 489 U.S. at 195;
Johnson, 2000 WL 1335865, at *4. Karasiewicz’s alleged statement that he was “sorry” about
plaintiff’s name being in the paper does not indicate any wrongdoing on his part, and does not
alter the fact that he did not violate any of plaintiff’s constitutional rights, much less any clearly
established rights.
Sergeant Macready is named in the third, fourth and fifth claims. In the third claim,
plaintiff alleges that he gave Macready a list of his enemies in the prison system, including
Robert Mills, and that although Macready took down the names, he apparently failed to ensure
that the information was entered in plaintiff’s file. Plaintiff alleges that “this error of judgment”
on Macready’s part put plaintiff in danger of assault. Amended Complaint ¶ 27.
In the fourth claim, plaintiff alleges the facts surrounding his assault by another inmate.
The only mention of Macready in this claim is that “[t]he fault [on defendants’ part] also reverts
11

back to claim three against Sargent [sic] Macready for not placing anyone on my enemy list or
turning in the proper paper work.” Id. ¶ 36. The fifth claim relates several other matters
involving plaintiff’s interactions with, and fear of Robert Mills, but does not allege any particular
facts concerning Macready. Thus, this claim too seems to “revert[] back to claim three.”
The claims against Macready fail for the simple reason that plaintiff has not alleged facts
plausibly showing that any of Macready’s acts or omissions were a proximate cause of the later
assault. Plaintiff does not allege that the inmate who assaulted him was one of the persons that
he named among his “enemies.” In fact, plaintiff does not even name the inmate. He simply
describes the inmate as his “attacker.” Amended Complaint ¶ 31. He alleges that he eventually
was informed that the assault was carried out by or on behalf of a certain prison gang, because
plaintiff had “ratted out” Robert Mills, who was a member of the gang. Id. ¶ 33.3 Even if
Macready had properly submitted plaintiff’s “enemies” list, then, there is no reasonable basis to
think that the assault would not have occurred.
Furthermore, plaintiff himself describes Macready’s alleged omission as an “error in
judgment,” which is not enough to give rise to an Eighth Amendment claim. See Walker v.
Schult, 717 F.3d 119, 125 (2d Cir. 2013) (“To meet the subjective element [of an Eighth
Amendment claim], the plaintiff must show that the defendant acted with ‘more than mere
negligence’”) (quoting Farmer v. Brennan, 511 U.S. 825, 835 (1994)); Crow v. Montgomery,
403 F.3d 598, 602-03 (8th Cir. 2005) (“negligence cannot give rise to an Eighth Amendment

3

Plaintiff states that “[t]here was an inmate by the name of Brink” who plaintiff thought “had something to
do with this assault,” Amended Complaint ¶ 33, but he does not say that Brink committed the assault. All he alleges
is that Brink “was part of the gang that was behind this assault.” Id. He does not state that Brink was one of his
listed “enemies.”

12

failure-to-protect claim”); Porter v. Goord, No. 04-CV-0485, 2009 WL 2180580, at *13
(W.D.N.Y. July 22, 2009) (“In the context of an alleged Eighth Amendment failure to protect
claim, ‘mere negligence will not give rise to a constitutional violation’”) (quoting Hendricks v.
Coughlin, 942 F.2d 109, 113 (2d Cir. 1991)).
Superintendent Artus is named as a defendant in the fifth claim, and D.S.S. Saj is named
in the fourth and fifth claims. Plaintiff’s claims against both Artus and Saj must be dismissed for
lack of personal involvement.
It is well established that imposing individual liability under § 1983 requires “personal
involvement ... in alleged constitutional deprivations.” Back v. Hastings on Hudson Union Free
Sch. Dist., 365 F.3d 107, 122 (2d Cir. 2004)(internal quotation marks omitted). Personal
involvement may be shown where the defendant directly participated in the violation, or, if the
defendant was a supervisory employee or official, where the defendant: failed to remedy the
violation after it was brought to his or her attention; created or fostered a policy or custom that
allowed or caused such violations to occur; was grossly negligent in supervising subordinates
who committed the violation; or showed deliberate indifference to the rights of others by failing
to act on information that constitutional violations were occurring. Crenshaw v. Korbar, No.
09-CV-6167, 2013 WL 1681833, at *4 (W.D.N.Y. Apr. 17, 2013) (citing Colon v. Coughlin, 58
F.3d 865, 873 (2d Cir. 1995)).
Plaintiff has not alleged facts showing Artus’s or Saj’s personal involvement. Aside from
being named as a defendant, Artus is not even mentioned in plaintiff’s fifth claim. The same is
true of Saj, except for plaintiff’s allegation that Saj “forced” plaintiff “to sign into Protective
Custody against Robert Mills ... .” Plaintiff alleges that Saj told him that if he did not sign, he
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would be sentenced to six months in the Special Housing Unit. Plaintiff alleges that he
“[r]eluctantly” signed and was “released after they moved Robert Mills.” Amended Complaint
¶ 43.
All that shows is that Saj took steps to protect plaintiff. That hardly shows a culpable
state of mind on Saj’s part. See Farmer, 511 U.S. at 834 (to establish a constitutional violation
for failure to protect, an inmate must show that the conditions of his incarceration posed a
substantial risk of serious harm and that prison officials were deliberately indifferent to his
safety). Apparently, plaintiff believes that the correct response to the threat would have been to
move Mills, rather than to put plaintiff into protective custody. But that disagreement
notwithstanding, it is plain that Saj was not deliberately indifferent to a threat to plaintiff’s safety.
Plaintiff’s sixth claim names two defendants, doctors Fries and McPhillips. Plaintiff
alleges that he did not see Dr. Fries “for almost one month after the assault.” Amended
Complaint ¶ 49. He alleges that in October 2014 he was transferred to Hale Creek Correctional
Facility, where he was seen by Dr. McPhillips. He alleges that their treatment was inadequate.
The purported basis for the claim against them is “Medical Malpractice and Medical
Negligence.” Id.
This claim is deficient on its face. To demonstrate that a lack of, or inadequate, medical
treatment constituted “cruel and unusual punishment” prohibited by the Eighth Amendment, a
prisoner plaintiff must show that the defendant’s actions or omissions amounted to “deliberate
indifference to a serious medical need.” Estelle v. Gamble, 429 U.S. 97, 106 (1976). The
“deliberate indifference” standard comprisess two elements. The first element is objective, and
measures the severity of the alleged deprivation, while the second element is subjective and
14

requires the prison official to have acted with a “sufficiently culpable state of mind.” Id. at 104.
See, e.g., Lawrence v. Evans, 136 F.Supp.3d 486, 489 (W.D.N.Y. 2015).
All that plaintiff alleges is that there was some delay in his being seen by a doctor, and
that when he was seen by doctors Fries and McPhillips, he was dissatisfied with the treatment he
received. That is not enough to support an Eighth Amendment claim. See Lawrence v. Evans,
136 F.Supp.3d 486, 490 (W.D.N.Y.), aff’d, 669 Fed.Appx. (2d Cir. 2016); Lee v. Frederick, 519
F.Supp.2d 320, 328 (W.D.N.Y. 2007).
The sole remaining named state defendant is Gregory Brewer, who is identified in the
fourth claim as a civilian maintenance supervisor. Plaintiff alleges that he told Brewer about the
impending assault, about ninety minutes before it occurred.
From plaintiff’s own allegations, however, it appears that Brewer did take steps to protect
plaintiff. According to the complaint, after the assault occurred, and plaintiff had struggled to his
feet, he was escorted out of the mess hall by a female correction officer. He states,
On the way out the door, I requested that Mr. Brewer be contacted, as he was aware that
this was going to take place. Her response was that you were the one he was talking
about. This shows that Mr. Brewer did contact a Sargent and informed him and the
Corrections Officers but nothing was done in time to prevent this assault. This assault
was reasonably foreseeable, but not stopped by any of the officers or Sargent’s.
Amended Complaint ¶ 31.
If there was some culpable failure to protect plaintiff, then, the fault cannot be laid at
Brewer’s feet. Plaintiff himself has alleged that Brewer–who was a civilian maintenance
supervisor, not a correction officer–evidently did pass on word of the threat, and that it was not
acted on. There is no basis for a claim against Brewer.

15

That disposes of all the named defendants. Plaintiff has also asserted claims against nine
unnamed, “John Doe” defendants. Plaintiff’s fifth claim is brought against “John Does (1-7),”
identified only as correction officers at Livingston, and against “John Doe (8 & 9),” identified as
sergeants at Livingston. The precise nature of this verbose claim is unclear, but in general it
relates to defendants’ failure to keep plaintiff safe from Robert Mills and other “enemies” of
plaintiff.
This claim fails. Plaintiff alleges only that at certain times, he was placed in fear for his
safety, but he does not allege that he suffered actual harm as a result. He requests this Court to
issue orders of protection against certain individuals, but “it is far from clear that federal courts
have the authority to issue orders of protection.” Newman v. Hoyt, No. 3:17-CV-0808, 2017 WL
479844, at *4 n.4 (N.D.N.Y. Sept. 19, 2017) (citing Kanhoye v. Atlanta, Inc., No. 05-CV-4308,
2000 WL 35605091, at *2 (E.D.N.Y. Dec. 3, 2000) (denying defendants’ motion for an order of
protection because they had failed to cite any legal basis for the requested relief).
Even construing the fifth claim as a request for injunctive relief against state officials,
which might be within the general power of this Court to grant, plaintiff has not alleged facts
showing a basis for such relief. As stated, plaintiff is no longer in the custody of DOCCS. There
is thus no basis to believe that such relief is warranted, within the context of this lawsuit. If
plaintiff believes that he needs an order of protection concerning the individuals in question, he
can seek such relief in the state courts.
In his fourth claim, plaintiff alleges that at the time of the assault in the mess hall, there
were several correction officers on duty in the immediate area, and that they did not intervene to

16

prevent or stop the attack. Amended Complaint ¶ 31. But he has not named those officers,
apparently because he does not know their names.
Under some circumstances, a plaintiff’s failure immediately to identify individual
defendants by name might not, in itself, be cause to dismiss a claim. That is why litigants are
permitted to pursue claims, at least for a while, against “John Doe” defendants.
But as stated, plaintiff has not even responded to the motion to dismiss, despite being
given clear warning that his failure to respond could result in the dismissal of his complaint. His
deadline to respond came and went over two months ago. In short, he appears to have no interest
in pursuing this action.
Under those circumstances, I see no reason to allow this case to continue. It would be
pointless to keep this case open, against unnamed defendants, when plaintiff himself has shown
no inclination to prosecute the case. Plaintiff’s claims against the John Doe defendants are
therefore dismissed as well. See Hidalgo v. Gilbert, No. 10-CV-6522, 2012 WL 473462, at *1
n.1 (W.D.N.Y. Feb. 13, 2012) (dismissing claims against John Doe defendants where plaintiff
failed to respond to motion to dismiss).

CONCLUSION
The motions to dismiss filed by defendants Brooks Baker, Philip Roche, Eric Tyner and
Donald Lewis (Dkt. #17), by defendants Eric Hurd and John Karasiewicz (Dkt. #23), and by

17

defendants Michelle Artus, Gregory Brewer, Marcia Fries, Eric M. Hurd, John Karasiewicz, J.
McPhillips, J. McReady, and Gregory Saj (Dkt. #26) are granted, and the complaint is dismissed.
IT IS SO ORDERED.

_______________________________________
DAVID G. LARIMER
United States District Judge
Dated: Rochester, New York
October 1, 2018.

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