Vega v. Allen et al

Filing 14

ORDER The Clerk of Court is directed to terminate Steven Jimenez as a party to this action. It is further Ordered that the Amended Complaint is dismissed with prejudice for failure to state a claim on which relief may be granted and the Clerk of Cou rt is directed to close this case as dismissed with prejudice. It is further Ordered that Plaintiff's motions to appoint counsel 3 4 are denied as moot. It is further Ordered that the Court hereby certifies, pursuant to 28 U.S.C. § 1915 (a), that any appeal from this Order would not be taken in good faith and leave to appeal to the Court of Appeals as a poor person is denied. Further requests to proceed on appeal in forma pauperis should be directed on motion to the United S tates Court of Appeals for the Second Circuit in accordance with Rule 24 of the Federal Rules of Appellate Procedure. Signed by Hon. David G. Larimer on 10/12/2018. Copy of this Order sent by First Class Mail to plaintiff Jesus Vega on 10/12/2018 to his address of record. (KAH)-CLERK TO FOLLOW UP-

PS

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________
JESUS VEGA, et al.,
Plaintiff,
-v-

17-CV-6643L
ORDER

OFFICER ALLEN, et al.,
Defendants.
___________________________________

Pro se Plaintiff Jesus Vega is an inmate currently confined at the Attica
Correctional Facility. He filed this action seeking relief pursuant to 42 U.S.C. § 1983,
alleging that Defendant Officer Allen violated his constitutional rights by failing to protect
him while he was attacked by another inmate, during his prior confinement at the Wende
Correctional Facility (“Wende”). Docket No. 1. The Court previously had dismissed the
Complaint without prejudice for failure to state a claim upon which relief can be granted
and granted Plaintiff leave to file an Amended Complaint. Docket No. 12.
As directed, Plaintiff timely filed an Amended Complaint. Docket No. 13. Plaintiff
also moves for the appointment of counsel. Docket Nos. 3, 4. For the reasons discussed
below, the Amended Complaint is dismissed with prejudice pursuant to 28 U.S.C.
§§ 1915(e)(2)(B) and 1915A, and Plaintiff’s motions to appoint counsel are denied as
moot.

DISCUSSION
I.

Legal Standard
A. Sections 1915 and 1915A
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)
(citing Shakur v. Selsky, 391 F.3d 106, 112 (2d Cir. 2004)). 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)(1)-(2).
B. Section 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 of Fulton, 126 F.3d 400, 405 (2d Cir. 1997).
II.

Plaintiff’s Allegations
Plaintiff alleges in the Amended Complaint that on April 19, 2018, he was playing

cards in the basement of Wende when an inmate “came from behind and stab[bed] [him]
in the right eye.” Docket No. 13, p.6. He alleges that a correction officer, Defendant

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Allen, was present but did “nothing to protect” him. Id. He further alleges that “[he] has
a witness that was there--Inmate Steven Jimenez.1” Id.
III.

Constitutional Claim
The Court construes Plaintiff’s allegations as asserting an Eighth Amendment cruel

and unusual punishment claim based on Defendant’s failure to protect him or intervene
during the attack by the other inmate. “The Eighth Amendment requires prison officials
to take reasonable measures to guarantee the safety of inmates in their custody.” Hayes
v. N.Y. City Dep’t of Corr., 84 F.3d 614, 620 (2d Cir. 1996). 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. Id.
Although the failure to intervene in an isolated incident of attack, by itself, does not
state a basis for liability, the allegation that an officer did nothing to stop an attack can
state a claim under § 1983 if accompanied by allegations of the officer’s deliberate
indifference to the consequences of his conduct. See Williams v. Vincent, 508 F.2d 541,
546 (2d Cir. 1974) (“[O]ther than the mere claim that [the prison official] had an opportunity
to protect [plaintiff], the complaint is devoid of factual allegations of aggravating
circumstances to support a claim of deliberate indifference on the part of [the official]
which might rise to the l[e]vel of a constitutional violation.”); Rosen v. City of New York,
667 F. Supp. 2d 355, 360 (S.D.N.Y. 2009) (“In the context of a failure to intervene claim,

Plaintiff has named the witness, inmate Steven Jimenez, as a plaintiff in this action. However, a “pro se
litigant . . . is not empowered to proceed on behalf of anyone other than himself.” McCall v. Pataki, 232 F.3d
321, 322 (2d Cir. 2000) (citing 28 U.S.C. § 1654); see also Berrios v. N.Y. City Hous. Auth., 564 F.3d 130,
133 (2d Cir. 2009). A pro se litigant cannot represent the legal interests of another individual without being
authorized to practice law. Accordingly, the Clerk of Court will be directed to terminate Jimenez as a party
to this action.
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an officer displays deliberate indifference when he has adequate time to assess a serious
threat against an inmate and a fair opportunity to protect the inmate without risk to himself,
yet fails to intervene.”) (internal quotation marks omitted).
An actionable failure to intervene claim is asserted where it is alleged:
(1) that the officer observed or had reason to know that the Plaintiff was involved
in a physical altercation with another inmate;
(2) that the officer had a reasonable opportunity to intervene to prevent the attack
from continuing. A reasonable opportunity to intervene means that the attack must
have been of sufficient duration that an officer present at the scene would have
had a reasonable opportunity to attempt to prevent the attack from continuing.
However, in circumstances where a corrections officer reasonably concludes that
further intervention would threaten the health and safety of all concerned, including
correctional staff, his failure to intervene is not a constitutional violation;
(3) that in failing to intervene the officer was deliberately indifferent to a substantial
risk of harm to Plaintiff; and
(4) that the officer's deliberate indifference to a substantial risk of harm was a risk
that caused Plaintiff some harm. In order to show sufficient harm to constitute a
constitutional violation, Plaintiff need not prove that he suffered a serious physical
injury, but only that he suffered some injury beyond a most minor one.
Rosen, 667 F. Supp. 2d at 360 (alterations omitted) (quoting Williams v. Russo, No.
01-CV-6401, 2009 WL 185758, at *4 (W.D.N.Y. Jan. 26, 2009).
In the Amended Complaint, Plaintiff has simply repeated the allegations of the
initial Complaint, which had been found to fall short of alleging an Eighth Amendment
claim. Plaintiff’s claim in this case is based on only his allegation that Defendant Allen
failed to protect him when another inmate attacked him. There is no allegation that the
Defendant had knowledge that Plaintiff faced a substantial risk of serious harm at the
hands of another inmate prior to the assault, see, e.g., Robinson v. U.S. Bureau of
Prisons, 244 F. Supp. 2d 57, 64 (N.D.N.Y. 2003) (finding the allegation that one

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corrections officer supervised inmates with “violent proclivities, without more, is an
insufficient basis” to conclude that defendants were aware of an excessive risk to attacked
inmate’s safety), nor does Plaintiff allege a history of similar incidents or that Defendant
stood by and let the attacker injure Williams further, Williams, 508 F.2d at 546. There is
no basis to conclude that Defendant had reason to know that Plaintiff faced a substantial
risk of harm and was deliberately indifferent to such a risk. Plaintiff’s allegations are
insufficient to support an Eighth Amendment claim and, therefore, the Amended
Complaint must be dismissed with prejudice for failure to state a claim on which relief may
be granted.
ORDER
IT HEREBY IS ORDERED, that the Clerk of Court is directed to terminate Steven
Jimenez as a party to this action;
FURTHER, that the Amended Complaint is dismissed with prejudice for failure to
state a claim on which relief may be granted and the Clerk of Court is directed to close
this case as dismissed with prejudice;
FURTHER, that Plaintiff’s motions to appoint counsel are denied as moot;
FURTHER, that the Court hereby certifies, pursuant to 28 U.S.C. § 1915(a), that
any appeal from this Order would not be taken in good faith and leave to appeal to the
Court of Appeals as a poor person is denied. Coppedge v. United States, 369 U.S. 438
(1962). Further requests to proceed on appeal in forma pauperis should be directed on

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motion to the United States Court of Appeals for the Second Circuit in accordance with
Rule 24 of the Federal Rules of Appellate Procedure.
IT IS SO ORDERED.

_______________________________________
DAVID G. LARIMER
United States District Judge
Dated: Rochester, New York
October 12, 2018.

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