Tony McGee v. McGreadyTony McGee v. McGready
- Reporters:
- ,
- Before:
- Nelson S. Román
NELSON S. ROMÁN, United States District Judge:
Plaintiff, Tony McGee (“Plaintiff“), an incarcerated pro se inmate at Sing Sing Correctional Facility, brings this action pursuant
FACTUAL BACKGROUND
The following facts are taken from Plaintiff‘s Amended Complaint and are deemed true for the purpose of this motion.
Plaintiff alleges that on or about July 22, 2013, while in the mess hall he was assaulted by a fellow “gang related Hispanic inmate” who made a derogatory or offensive statement. In response to the statement, Plaintiff punched the inmate in the face resulting in an altercation.
On or about July 11, 2013, approximately eleven days prior to the altercation, Plaintiff spoke to Jackson and requested that he be placed in protective custody because he was threatened and being targeted by “gang-related Hispanic inmates.” Jackson purportedly prepared a request for “voluntary protective custody,” and informed Plaintiff he would be contacted sometime later. Later that day, Plaintiff was interviewed by Sgt. Murray concerning his request for protective custody. Plaintiff purportedly informed Sgt. Murray of the threats and being targeted. Plaintiff was once again informed he would be contacted sometime later. Plaintiff‘s request was not granted. Plaintiff suggests had he been placed in protective custody, as requested, he would not have been assaulted and injured. Additionally, Plaintiff asserts that Defendant Black failed to process multiple sick-call grievances by failing to forward them to Central Office Review Committee (“CORC“). Plaintiff asserts claims under the Eight and Fourteenth Amendments.
STANDARD OF REVIEW
Rule 12(b)(6)
On a
Where a pro se Plaintiff is concerned, Courts must construe the pleadings in a particularly liberal fashion. Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009). The Court must therefore interpret the pleading “to raise the strongest arguments that [it] suggest[s].” Harris v. City of N.Y., 607 F.3d 18, 24 (2d Cir. 2010) (internal quotations and citation omitted). Nevertheless, a pro se plaintiff‘s pleading must contain factual allegations that sufficiently “raise a right to relief above the speculative level” (Jackson v. N.Y.S. Dep‘t of Labor, 709 F. Supp. 2d 218, 224 (S.D.N.Y. 2010)), and the Court‘s duty to construe the complaint liberally is not “the equivalent of a duty to re-write it.” Geldzahler v. New York Medical College, 663 F. Supp. 2d 379, 387 (S.D.N.Y. 2009).
Exhaustion
The Prison Litigation Reform Act (“PLRA“) precludes the filing of an action “with respect to prison conditions under [
Notably, exhaustion is an affirmative defense, not a pleading requirement; thus, inmate plaintiffs need not “specially plead or demonstrate exhaustion in their complaints.” Jones, 549 U.S. at 216. Instead, Defendants must demonstrate lack of exhaustion. Colon v. N.Y.S. Dep‘t of Corr. & Cmty. Supervision, No. 15-CV-7432(NSR), 2017 WL 4157372, at *5 (S.D.N.Y. Sept. 15, 2017) citing Key v. Toussaint, 660 F. Supp. 2d 518, 523 (S.D.N.Y. 2009).
Dismissal on a 12(b)(6) motion for failure to exhaust is permissible where “it is clear on the face of the complaint that the plaintiff did not satisfy the PLRA exhaustion requirement.” Williams, 829 F.3d at 122; see also Parris v. N.Y.S. Dep‘t Corr. Servs., 947 F. Supp. 2d 354, 261 (S.D.N.Y. 2013) (citing Johnson v. Westchester Cnty. Dep‘t of Corr. Med. Dep‘t, No. 10-CV-6309, 2011 WL 2946168, at *2 (S.D.N.Y. July 19, 2011) for proposition that denial of motion was appropriate where complaint was ambiguous as to exhaustion). Further, on such a motion, where a court is confined to the four corners of the complaint, the documents attached thereto, and things of which it is entitled to take judicial notice (see, e.g., Kleinman v. Elan Corp., 706 F.3d 145, 152 (2d Cir. 2013); Gonzalez v. Hasty, 651 F.3d 318, 321 (2d Cir. 2011)), a court is only permitted to consider outside documents related to exhaustion and submitted by defendants under limited circumstances. See, Smith v. Miller, No. 15-CV-9561 (NSR), 2017 WL 4838322, at *5 (S.D.N.Y. Oct. 23, 2017) (noting courts can take judicial notice of administrative records in Section 1983 cases in limited circumstances). Those include instances where “the complaint a) was the standard pro se form complaint that has a check-box regarding exhaustion, b) contained
Qualified Immunity
“Qualified immunity shields federal and state officials from money damages unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). “If the law was clearly established, the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct.” Harlow, 457 U.S. at 818-19. It is within the Court‘s discretion to determine the order in which the two prongs are analyzed. Pearson v. Callahan, 555 U.S. 223, 236 (2009).
DISCUSSION
Plaintiff asserts § 1983 claims under the Eighth Amendment against Defendants Black and Johnson. The essence of Plaintiff‘s claim is a failure to protect. Plaintiff‘s complaint suggest that Defendants’ failure in processing or approving his request for voluntary confinement resulted in his subsequent assault. Or, construing the allegations liberally as the Court is required to do, but for Defendants’ failure in placing him in voluntary protective custody, Plaintiff would not have been attacked and injured by a fellow inmate.
Plaintiff‘s 1983 complaint is that he was subjected to cruel and unusual punishment in violation of the Eighth Amendment, made applicable to the States by the Fourteenth. See Estelle v. Gamble, 429 U.S. 97, 102 (1976) citing Robinson v. California, 370 U.S. 660 (1962). “To prevail on an Eighth Amendment claim, an inmate must first show that his injury is objectively a ‘sufficiently serious’ one.” Brims v. Burdi, No. 03-CV-3159 (WHP), 2014 WL 1403281, at *2
Deliberate indifference requires a showing that the conditions of incarceration posed a substantial risk of serious harm, and that prison officials possessed sufficient culpable intent. Hayes v. New York City Dep‘t Of Corr., 84 F.3d 614, 620 (2d Cir. 1996) citing Farmer v. Brennan, 511 U.S. 825, 834 (1994). The deliberate indifference requires a two prongs analysis: substantial risk of serious harm, objective prong; and sufficient culpable intent, subjective prong. Farmer, 511 U.S. at 834; Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996). Here, the objective prong is meet and not disputed.
Subjectively, the prison official acts with the requisite sufficient culpable state of mind when he (or she) “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.” Hayes, 84 F.3d at 620. Courts have denied deliberate indifference claims based upon surprise attacks. See Fernandez v. N.Y.C. Dep‘t of Corr., No. 08-CV-4294 (KMW), 2010 WL 1222017, at *4 (S.D.N.Y. Mar. 29, 2010); Zimmerman v. Macomber, No. 95-CV-0882(DAB), 2001 WL 946383 (S.D.N.Y. Aug. 21, 2001). Plaintiff alleges he provided advance notice to Jackson and Black of threats and a possible attack. Plaintiff‘s allegation also suggest he identified the attacker(s), “gang related Hispanic inmates” at the facility. Plaintiff‘s allegations suggest that Black and Jackson failed to take reasonable measures to abate the impending attack. Thus, Plaintiff has pled a plausible Eighth Amendment claim.
In support of their motion, Defendants submit a declaration from Karen Bellamy (“Bellamy“), the Director of the Inmate Grievance Program (“IGP“). Bellamy avers that she is the custodian of records maintained by the CORC, which is tasked with rendering administrative decisions on grievances filed by inmates. Based upon her review of the records, she found that Plaintiff made other complaints concerning meals, conditions of the facility, and “problems with security staff” on December 17, 2013. Plaintiff, however, did not file a grievance concerning the July 22nd incident nor his request for voluntary confinement. Though Plaintiff attempts to rebut Defendants’ showing, mere conclusory statements in opposition is insufficient. Accordingly, Plaintiff‘s Eighth Amendment claims must be dismissed.
Plaintiff also asserts a claim based on Defendant Black‘s failure to process his grievances, including his “5 sick call grievances.” It is well settled that in order to succeed on a § 1983 claim, Plaintiff must show that he has been deprived of a constitutional or other federal right.
CONCLUSION
For the foregoing reasons, Defendants’ motion is GRANTED in part and DENIED in part. Plaintiff‘s Eighth Amendment and claims premised on the failure to process his grievances are dismissed. The Clerk of the Court is respectfully directed to terminate the motion at ECF No. 29. The parties are directed to confer, complete and submit to the Court a completed case management plan (blank form attached) within thirty (30) days of the date of this opinion.
SO ORDERED.
Dated: April 30, 2018
White Plains, New York
NELSON S. ROMÁN
United States District Judge