Dean v. Doe #1 et al

Filing 42

DECISION AND ORDER denying 33 Motion to Dismiss for Failure to State a Claim; denying as moot 38 Motion for Miscellaneous Relief; denying as moot 40 Motion for Miscellaneous Relief. Signed by Hon. Elizabeth A. Wolford on 12/17/2019. (CDH)(A copy of this Decision and Order was mailed to Plaintiff)

FILED

UNITED STATES DISTRICT COURT

DEC 1 7 2019

WESTERN DISTRICT OF NEW YORK

^=^2^ districts^
TODD G. DEAN,

Plaintiff,

DECISION AND ORDER

6:I5-CV-06329 EAW

V.

ANDREW

ROBINSON

and

AARON

WARD,
Defendants.

INTRODUCTION

Pro se plaintiff Todd G. Dean ("Plaintiff) asserts a elaim against defendants
Andrew Robinson and Aaron Ward for deliberate indifference to his health and safety in

violation of the Fourteenth Amendment. (See Dkt. 21). Presently before the Court is
Ward's motion to dismiss Plaintiffs Amended Complaint as to him for failure to state a

claim pursuant to Federal Rule of Civil Procedure 12(b)(6). (Dkt. 33)'. For the reasons
that follow. Ward's motion is denied.

'

Plaintiff has also denoted his response to Ward's motion and his sur-reply in further

opposition thereto as "motions." (See Dkt. 38 (labeled "Motion and Responds to Dismiss
Amended Complaint Against Aaron Ward, Supervisor"); Dkt. 40 (labeled "Reply in
Further Support of Motion Not to Dismiss Amended Complaint Against Defendant
Supervisor Ward")). However, Plaintiff does not seek any affirmative relief in these
purported "motions" beyond asking the Court not to grant Ward's motion. The Court has
considered in full the arguments by Plaintiff in opposition to Ward's motion. Accordingly,
the Court denies Plaintiffs "motions" as moot.
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FACTUAL BACKGROUND

Unless otherwise noted, the following facts are taken from Plaintiffs Amended

Complaint. (Dkt. 18). As is required at this stage ofthe proceedings,the Court has treated
Plaintiffs allegations as true.

Initially, the Court takes judicial notice^ that on October 9, 2014, a criminal
complaint was filed in this District charging Plaintiff with having "(0 knowingly used
online cellular text messages ... in an attempt to persuade, induce, or entice an individual
he believed to be under the age ofeighteen, to engage in sexual activity, and (ii) knowingly

attempted to persuade a minor to produce child pornography, in violation of Title 18,
United States Code, Sections 2422(b), 2251(a) and 2251(e)." Criminal Complaint, United
States V. Dean, No. 15-cr-6064, Dkt. 1 (W.D.N.Y. Oct. 9, 2014).

By way of plea

agreement, on May 12, 2015, Plaintiff pled guilty to a one-count superseding Information
charging him with a violation of 18 U.S.C. § 2422(b)(coercion and enticement ofa minor).
See Plea Agreement, United States v. Dean, No. 15-cr-6064, Dkt. 18(W.D.N.Y. May 12,
2015).

At all times relevant to this action, Robinson and Ward were employees of the
United States Marshals Service, with Ward acting as Robinson's supervisor. Plaintiff
alleges that while Robinson was transporting him in connection with his criminal case.

^

It is well-established that a court may take judicial notice of its own records. See,

e.g., Lesch v. United States, No. 09-CV-0077 TJM DEP, 2009 WL 10700857, at *1 n.l
(N.D.N.Y. Apr. 3, 2009)("[A] court has the right to examine its own records and take

judicial notice thereof in regard to a proceeding formerly had therein by one ofthe parties
to the proceedings now before it." (quoting Dimmick v. Tompkins, 194 U.S. 540, 548
(1904))).
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Robinson said "foul, nasty words pertaining to his criminal case two times in front of

corrections officers and other inmates." (Dkt. 18 at 1-2). In particular, Plaintiff asserts
that Robinson referred to him as a "rapist" and a "child

[sic]." {Id. at 2). According

to Plaintiff, this caused him to have to "watch [his] back" and further led to threats and
extortion. {Id.).

Plaintiffs Amended Complaint, which is the operative pleading in this matter,
contains no facts regarding Ward. However, in opposition to Ward's motion to dismiss.

Plaintiff has elaborated on his allegations against Ward.^ Plaintiff alleges that on one
occasion,Robinson called Ward to inform him that Plaintiffhad declined his escort to court

for "medical reasons," and that after the call was over, Robinson "started calling and
slanding [Plaintiffs] name and case in front ofother inmate's as he left the jail [sic]." (Dkt.

38 at 2). Plaintiff further alleges that on a later date. Plaintiffs attorney informed a judge
that Robinson had called Plaintiff a rapist and "child

[sic]," and that thejudge thereafter

met with Ward and Plaintiffs attorney in her chambers, whereupon Ward told the judge
and Plaintiffs attomey that Robinson would no longer be assigned to escort Plaintiff to
court. {Id. at 2-3). Finally, Plaintiff alleges that 90 days after Ward's conversation with
the judge,"up-pops ... Robinson to escort Plaintiff Dean, again with the same intentional

^

In light ofPlaintiffs pro se status, the Court has taken into account this elaboration

of his claims in considering the instant motion to dismiss. See Vallen v. Newson, No. 16CV-2632(JS)(ARL), 2019 WL 1317569, at *2(E.D.N.Y. Mar. 22, 2019)("While district
courts are not required to consider claims that are raised for the first time in a pro se
plaintiffs opposition to a motion to dismiss, the Court may consider factual allegations
contained in a plaintiffs submissions in opposition to a defendant's motion to dismiss, to

the extent that they are consistent with the complaint."(quotation and alterations omitted)).
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and traumatic mistreatment and abuse." {Id. at 3). Plaintiff claims that his attorney again
informed the judge ofRobinson's actions, at which point the judge ordered Ward to take a
statement from Plaintiff, {Id. at 3-4).
PROCEDURAL BACKGROUND

Plaintiffcommenced this action on April 23,2015. (Dkt. 1). Plaintiffinitially failed
to properly move for leave to proceed in forma pauperis, causing the matter to be
administratively terminated. (Dkt. 5). Plaintiffthereafter filed a properly supported motion
for informa pauperis status (Dkt. 7), which the Court granted (Dkt. 11). On February 19,
2016,the Court found that Plaintiffhad failed to state a claim and dismissed his Complaint.
(Dkt. 11).

On March 9, 2017, the Court filed a Decision and Order permitting Plaintiff to
replead his claims. (Dkt. 17). Plaintiff filed his Amended Complaint on May 3, 2017,
which named two John Doe defendants. (Dkt. 18). On September 13, 2018, the Court
entered a Decision and Order screening the Amended Complaint pursuant to 28 U.S.C.
§§ 1915(e)(2)(B)and 1915A(a). (Dkt. 21). The Court dismissed Plaintiffs claims brought

pursuant to the Federal Tort Claims Act without prejudice, but permitted Plaintiffs
Fourteenth Amendment deliberate indifference claim to proceed to service. {Id.). The
Court further asked that the United States Attorney produce information regarding the

identities of the John Doe defendants {id.), which the United States Attorney provided on
October 3,2018(Dkt. 22). Service was thereafter effectuated on Ward and Robinson. {See
Dkt. 28; Dkt. 30; Dkt. 31).

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Ward filed the instant motion to dismiss on August 9, 2019. (Dkt. 33). Plaintiff

filed his response on August 30,2019. (Dkt. 38). Ward filed a reply on September 9,2019
(Dkt. 39), and Plaintiff filed a sur-reply on September 23, 2019(Dkt. 40).
DISCUSSION
I.

Legal Standard

"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 LLC,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 All 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

the reasonable inference that the defendant is liable for the misconduct alleged." Turkmen
V. Ashcroft, 589 F.3d 542,546(2d Cir. 2009){(yiXO\m%Ashcroftv. 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 plaintiffs 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. AECOMTech. Corp., 762 F.3d 214, 218(2d Cir, 2014)(quoting Twombly, 550 U.S. at
555).
II.

Personal Involvement

Ward seeks dismissal of Plaintiffs claim against him on the basis that Plaintiff has

not plausibly alleged Ward's personal involvement in the alleged violation of his rights.
{See Dkt. 33-1 at 6-8). To establish liability against an official under § 1983, a plaintiff
must allege that individual's personal involvement in the alleged constitutional violation;
it is not enough to assert that the defendant is a link in the chain ofcommand. See McKenna

V. Wright, 386 F.3d 432,437(2d Cir. 2004); Colon v. Coughlin, 58 F.3d 865, 873(2d Cir.
1995). Moreover, the theory of respondeat superior is not available in a § 1983 action.
See Hernandez v. Keane, 341 F.3d 137, 144(2d Cir. 2003). A supervisory official can be

found to be personally involved in an alleged constitutional violation in one of several
ways:

(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 ofinmates by
failing to act on information indicating that unconstitutional acts were
occurring.
Colon, 58 F.3d at 873 (citing Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994)).

In this case, taking all ofPlaintiffs allegations as true and drawing all inferences in
his favor,see Elias v. Rolling Stone LLC,872 F.3d 97, 104(2d Cir. 2017), the Court finds
that Plaintiff has plausibly alleged personal involvement by Ward. Plaintiff has alleged
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that Ward was informed of Robinson's actions and told the judge that Robinson would no
longer be assigned to escort Plaintiff. However,in Plaintiffs version ofthe facts, Robinson

was subsequently assigned to escort Plaintiff again, and Robinson again engaged in
wrongdoing against Plaintiff. It is reasonable to infer from these allegations that Ward did
not take action to ensure that Robinson would no longer be assigned to escort Plaintiff,
Ward's statement to the judge notwithstanding. Plaintiffs allegations further support the
conclusion that Ward was on-duty and supervising Robinson on the day Robinson was
once again assigned to escort Plaintiff, because Plaintiff claims that Ward was called into
the judge's chambers and ordered to take a statement from Plaintiff on that occasion.

At this stage of the proceedings. Plaintiffs allegations are sufficient to support the

conclusion that Ward was on notice of Robinson's wrongdoing and failed to take the
appropriate corrective action. See, e.g., Keitt v. New York City, 882 F. Supp. 2d 412,424

(S.D.N.Y. 2011)(denying motion to dismiss where the plaintiff alleged the defendant was
fully aware that the plaintiffs disability was not being accommodated and "failed to take
action to remedy the ongoing violation"); Scott v. Hollins, No. 96-CV-0351C, 2006 WL

1994757, at *7 (W.D.N.Y. July 14, 2006)(finding that defendant's knowledge that the
plaintiff was being harmed by exposure to second-hand smoke and failure to act on his
complaints could establish personal involvement); Allah v. Goord, 405 F. Supp. 2d 265,
278 (S.D.N.Y. 2005) (denying motion to dismiss where defendants were aware that

prisoners in wheelchairs had been injured during transport and failed to remedy the

situation). The Court therefore finds that Plaintiffhas adequately alleged Ward's personal

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involvement in the alleged deprivation of his constitutional rights, and accordingly denies
Ward's motion to dismiss.
CONCLUSION

For the foregoing reasons. Ward's motion to dismiss(Dkt. 33)is denied. Plaintiffs
"motions" filed in response to Ward's motion(Dkt. 38; Dkt.40)are denied as moot. Ward
shall file an answer to the Amended Complaint in accordance with Federal Rule of Civil
Procedure 12(a)(4).
SO ORDERED.

States District Judge
Dated: December 17, 2019
Rochester, New York