Opinion
9:19-CV-1527 (TJM/TWD)
11-09-2021
ANDREA LAPIETRA and DEASHON TARVER, Plaintiffs, v. OFFICER JAN MIKA, et al., Defendants.
ANDREA LAPIETRA DEASHON TARVER PLAINTIFFS, PRO SE EUGENIA K. CONDON, ESQ. ALBANY COUNTY ATTORNEY ATTORNEYS FOR DEFENDANTS C.O. BURNS, C.O. DUROCHER, C.O. HALEY, AND SGT. REMILLARD KEVIN M. CANNIZZARO, ESQ. ASSISTANT ALBANY COUNTY ATTORNEY
ANDREA LAPIETRA DEASHON TARVER PLAINTIFFS, PRO SE
EUGENIA K. CONDON, ESQ. ALBANY COUNTY ATTORNEY ATTORNEYS FOR DEFENDANTS C.O. BURNS, C.O. DUROCHER, C.O. HALEY, AND SGT. REMILLARD
KEVIN M. CANNIZZARO, ESQ. ASSISTANT ALBANY COUNTY ATTORNEY
ORDER AND REPORT-RECOMMENDATION
THÉRÈSE WILEY DANCKS, United States Magistrate Judge
Andrea LaPietra (“LaPietra”) and Deashon Tarver (“Tarver”) (together, “Plaintiffs”) commenced this action pursuant to 42 U.S.C. § 1983 claiming that law enforcement personnel, officers at different correctional facilities, and medical professionals violated their constitutional rights in a variety of ways, including through illegal searches, excessive force, and deliberate indifference to serious medical needs. (Dkt. No. 33 (the “amended complaint”).) This Court 1 reviewed the amended complaint in accordance with 28 U.S.C. § 1915, and found the following claims required a response:
(1) LaPietra's Fourth Amendment claims for illegal search and seizure against Officer Johnson, John Does 1-5, Jane Does 1 and 2, Sergeant Doe 8, and Officer Mika;
(2) Tarver's Fourth Amendment claims for false arrest and false imprisonment and related state-law claims against Officer Johnson, John Does 2-5, Jane Does 1 and 2, Sergeant Doe 8, and Officer Mika;
(3) Tarver's Fourteenth Amendment claims for excessive force and state-law claims for negligent infliction of emotional distress against Officer Iannacito and John Does 10 and 11; and
(4) Tarver's Fourteenth Amendment excessive force and failure to protect claims against C.O. Burns, C.O. Durocher, C.O. Haley, and Sgt. Remillard.(Dkt. No. 37; see also Dkt. Nos. 39, 45, 51.) Officers Johnson, Mika, and Iannacito have answered the amended complaint. (Dkt. No. 50.)
The Court assumed for purposes of initial review that Tarver was a pretrial detainee.
Plaintiff's motion for reconsideration of the Decision and Order adopting this Court's Report-Recommendation regarding the initial review of the amended complaint remains pending and will be decided in due course. (Dkt. No. 51.)
Rather than answering, C.O. Burns, C.O. Durocher, C.O. Haley, and Sgt. Remillard (together, “Defendants”) have moved to dismiss Tarver's Fourteenth Amendment excessive force and failure to protect claims. (Dkt. No. 53.) Plaintiffs opposed the motion. (Dkt. No. 60.) Defendants replied. (Dkt. No. 61.)
Defendants' motion has been referred for a Report-Recommendation by the Honorable Thomas J. McAvoy, Senior United States District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c). For the reasons that follow, the Court recommends that Defendants' motion be denied. 2
The background section is derived from relevant allegations in Plaintiffs' amended complaint and accepted as true for the purpose of Defendants' motion.
On March 13, 2018, Tarver was assaulted at Albany County Correctional Facility (“ACCF”) while certain officers performed a “shakedown” and “a squat and cough” in Tarver's cell. (Dkt. No. 33 at 2, 137, 217-218.) C.O. Burns punched Tarver in the face, pushed Tarver onto the bed, and sprayed him with mace. Id. at 218, 222. At the time of the assault, Tarver was naked and in a squat position, with his back facing the officers. Id. at 222. Sgt. Remillard, C.O. Durocher, and C.O. Haley were present during the assault and did not intervene on Tarver's behalf. Id. at 218, 222. As a result of being sprayed with mace, Tarver suffered swelling and burning in his eyes. Id. at 219.
Page references to docket entries are to the page number the Court's CM/ECF system automatically assigns.
After the incident, Tarver was placed in “lockdown” without any writing utensils or access to his mail, was “blocked from and denied grievances” and denied phone calls. Id. at 2, 137. He was “kept in solitary confinement 24 hours a day.” Id. at 154. On April 5, 2018, Tarver was released from solitary confinement and subsequently transferred to Downstate Correctional Facility on April 21, 2018. Id. at 2.
Based on these allegations, as noted above, Tarver asserts Fourteenth Amendment excessive force and failure to protect claims against C.O. Burns, C.O. Durocher, C.O. Haley, and Sgt. Remillard.
Defendants principally argue Tarver's Fourteenth Amendment claims must be dismissed for failure to exhaust administrative remedies. (Dkt. No. 53-1 at 7-10.) C.O. Durocher, C.O. 3 Haley, and Sgt. Remillard also seek dismissal for lack of personal involvement and failure to state a claim upon which relief can be granted. Id. at 10-13.
II. MOTION TO DISMISS
A. Standard of Review
A defendant may move to dismiss a complaint for “failure to state a claim upon which relief can be granted” under Rule 12(b)(6) of the Federal Rules of Civil Procedure. The motion tests the legal sufficiency of the complaint and whether it conforms to Rule 8(a)(2) of the Federal Rules of Civil Procedure. To survive a motion to dismiss, the complaint must “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Determining whether a complaint states a plausible claim for relief . . . requires the . . . court to draw on its judicial experience and common sense . . . . [W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not shown-that the pleader is entitled to relief.” Id. at 679 (internal citation and punctuation omitted). “Factual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555.
A complaint may be dismissed pursuant to Rule 12(b)(6) only where it appears there are not “enough facts to state a claim to relief that is plausible on its face.” Id. at 570. While Rule 8(a)(2) “does not require detailed factual allegations, . . . it demands more than an unadorned, the-defendant-unlawfully-harmed-me-accusation.” Iqbal, 556 U.S. at 678 (citation and internal quotation marks omitted). In other words, a complaint which “tenders ‘naked assertion[s]' devoid of ‘further factual enhancement'” does not suffice. Id. (citation omitted). 4
“In reviewing a complaint for dismissal under Rule 12(b)(6), the court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor.” Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994). However, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.
Where a party is proceeding pro se, the court is obliged to “read [the pro se party's] supporting papers liberally, and . . . interpret them to raise the strongest arguments that they suggest.” See Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994); see also Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (courts remain obligated to construe pro se complaints liberally even after Twombly). Where a pro se complaint fails to state a cause of action, the court generally “should not dismiss without granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (citation and internal quotation marks omitted). An opportunity to amend is not required where “[t]he problem with [the plaintiff's] causes of action is substantive” such that “better pleading will not cure it.” Id.
B. Exhaustion of Administrative Remedies
Under the Prison Litigation Reform Act of 1995 (“PLRA”), “[n]o action shall be brought with respect to prison conditions under section 1983 . . . by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). “The PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and 5 whether they allege excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002).
To properly exhaust his administrative remedies, an inmate must complete the administrative review process in accord with the applicable state procedural rules. Jones v. Bock, 549 U.S. 199, 218-19 (2007). The PLRA contains one “textual exception to mandatory exhaustion.” Ross v. Blake, 578 U.S. 632, 642 (2016). “Under § 1997e(a), the exhaustion requirement hinges on the ‘availab[ility]' of administrative remedies: An inmate, that is, must exhaust available remedies, but need not exhaust unavailable ones.” Id. The Second Circuit has explained that “an administrative remedy may be unavailable when”: (1) “it operates as a simple dead end-with officers unable or consistently unwilling to provide any relief to aggrieved inmates”; (2) “an administrative scheme [is] so opaque that it becomes, practically speaking, incapable of use”; or (3) “prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Williams v. Corr. Officer Priatno, 829 F.3d 118, 123-24 (2d Cir. 2016) (quoting Ross, 578 at 643).
Because “[f]ailure to exhaust administrative remedies is an affirmative defense, ” it is “not a pleading requirement.” Id. at 122. Thus, “inmates are not required to specially plead or demonstrate exhaustion in their complaints.” Id. (quoting Jones, 549 U.S. at 216). “However, a district court still may dismiss a complaint for failure to exhaust administrative remedies if it is clear on the face of the complaint that the plaintiff did not satisfy the PLRA exhaustion requirement.” Id.
Here, Defendants argue Tarver's Fourteenth Amendment excessive force and failure to protect claims must be dismissed because it is clear from the face of the amended complaint, and it is entirely implausible, that Tarver exhausted his administrative remedies prior to commencing 6 this action. (Dkt. No. 53-1 at 7-10.) To that end, Defendants point to Plaintiff's “numerous contradictory allegations regarding the availability of the inmate grievance process at ACCF.” Id. at 7.
For example, Plaintiffs claim that after the alleged excessive force incident, he was placed in “lockdown”, denied access to writing materials and his mail, and was “blocked from grievance.” (Dkt. No. 33 at 137.) However, Plaintiffs claim Tarver submitted a “kite” on a “plain piece of paper as a formal grievance for his assault.” Id. at 253. Then, Plaintiffs claim Tarver “was unaware there even were grievance procedures because they never advised him in writing.” Id. at 255. Thus, according to Defendants, the amended complaint, “explicitly concedes by its own allegations that Plaintiff [Tarver] did not in reality attempt to properly follow the existing procedures because at the time Tarver was entirely unaware of the grievance procedure itself.” (Dkt. No. 53-1 at 8.) In sum, Defendants argue Plaintiffs' conflicting allegations are the “essence of implausibility and are in reality a smokescreen for the fact that the [amended] [c]omplaint taken together establishes one thing: Plaintiff [Tarver] did not exhaust his administrative remedies because he was unaware of either the ACCF grievance procedure or his responsibility to follow it.” Id. at 10.
Defendants also note that Tarver's claim that he had no access to a pen and paper is further contradicted by the allegations contained in the amended complaint indicating that he “dropped” “multiple slips” for toothache pain during the relevant time frame yet somehow was denied writing materials and mail. (Dkt. No. 53-1 at 9 n.3.)
Based upon the face of the amended complaint, it is not clear that Plaintiff failed to satisfy the PLRA exhaustion requirement. Not only is there no discussion whatsoever of the grievance procedures at ACCF, but taking Plaintiffs' allegations as true and drawing all 7 reasonable inferences in Plaintiffs favor as the Court must at this stage, Tarver was “blocked from and denied grievances” at ACCF and the grievance process was unavailable to him. (Dkt. No. 33 at 2, 137.) To be sure, as Defendants highlight, there are many conflicting claims regarding the availability of the grievance process. See, e.g., id. at 254 (“The CO [Tarver] handed the kite to probably never even submitted the grievance”), 255 (Tarver “was unaware there were even grievance procedures”); but see Id. at 253 (“Commission of Corrections had already been contacted and investigated the matter”). Nevertheless, “[w]here, as here, a plaintiff claims that the grievance process was unavailable to him, . . . it would be improper to grant [d]efendants' motion to dismiss.” Henry v. Liberty, 9:15-cv-01108 (MAD/DEP), 2016 WL 5462825, at *2 (N.D.N.Y. Sept. 29, 2016).
Courts typically examine a facility's grievance procedures to determine whether a claim has been exhausted. See Espinal v. Goord, 558 F.3d 119, 124 (2d Cir. 2009).
Therefore, at this early stage of the proceedings, the Court recommends denying Defendants' motion to dismiss on exhaustion grounds. The Court expresses no opinion on the viability of a dispositive motion for failure to exhaust following discovery on that issue.
B. Fourteenth Amendment Excessive Force and Failure to Protect Claims
“It is widely recognized that all law enforcement officials have an affirmative duty to intervene to protect the constitutional rights of citizens from infringement by other law enforcement officers in their presence.” Terebesi v. Torreso, 764 F.3d 217, 243 (2d Cir. 2014) (internal quotation marks and citation omitted); accord Anderson v. Branen, 17 F.3d 552, 557 (2d Cir. 1994). Thus, “[w]hen a citizen is subjected to excessive force, ‘an officer who fails to intervene where he or she observes or has reason to know that excessive force is being used or a constitutional violation has been committed by a fellow officer is liable for the preventable harm caused by that officer.'” Boyde v. Deputy Uzunoff, No. 9:21-CV-0741 (TJM/ATB), 2021 WL 3185472, at *6 (N.D.N.Y. July 28, 2021) (quoting Portillo v. Webb, No. 16-CV-4731, 2017 WL 4570374, at *4 (S.D.N.Y. Oct. 11, 2017) 8 (collecting cases), report-recommendation adopted, 2018 WL 481889 (S.D.N.Y. Jan. 17, 2018)).
“As opposed to deliberate indifference claims brought by post-conviction prisoners- which arise under the Eighth Amendment-claims for deliberate indifference brought by state pretrial detainees arise under the Fourteenth Amendment.” Blake v. Kelly, No. 12 Civ. 7245(ER), 2014 WL 4230889, at *4 (S.D.N.Y. Aug. 26, 2014). The Second Circuit recently altered the analysis used in Fourteenth Amendment deliberate indifference cases following the Supreme Court's decision in Kingsley v. Hendrickson, 576 U.S. 389 (2015). Under current Second Circuit law, when a pretrial detainee plaintiff brings § 1983 claims alleging deliberate indifference, including claims alleging failure to protect or intervene, the plaintiff must satisfy a two-prong test by showing: (1) “he is incarcerated under conditions posing a substantial risk of serious harm, ” Hayes v. N.Y.C. Dep't of Corr., 84 F.3d 614, 620 (2d Cir. 1996), and (2) “the defendant-official acted intentionally . . . or recklessly failed to act with reasonable care to mitigate the risk . . . even though the defendant-official knew, or should have known, that the condition posed an excessive risk to health or safety.” Darnell v. Pineiro, 849 F.3d 17, 30, 35 (2d Cir. 2017); see, e.g., Taylor v. City of New York, No. 16 Civ. 7857 (NRB), 2018 WL 1737626, at *11 (S.D.N.Y. Mar. 27, 2018) (“Although Darnell involved a Fourteenth 9 Amendment challenge to a prisoner's conditions of confinement, its holding applies with equal measure to failure to protect claims.”); Corley v. City of New York, No. 1:14-cv-3202-GHW, 2017 WL 4357662, at *12 (S.D.N.Y. Sept. 28, 2017) (“[T]he second prong of this claim is measured by an objective standard: whether [the defendants] ‘knew or should have known' that a substantial risk [of] serious harm would result from their failure to intervene.” (citing Darnell, 849 F.3d at 35)); Molina v. Cty. of Westchester, No. 16 CV 3421 (VB), 2017 WL 1609021, at *2-3 (S.D.N.Y. Apr. 28, 2017) (applying the deliberate indifference standard articulated in Darnell to a failure to protect claim).
In Kingsley, the Supreme Court distinguished between Eighth and Fourteenth Amendment excessive force claims and held that a pretrial detainee need not demonstrate that an officer accused of using excessive force was subjectively aware that his use of force was unreasonable. Kingsley, 576 U.S. at 396-97. Rather, “to prove an excessive force claim, a pretrial detainee must show . . . only that the officers' use of that force was objectively unreasonable.” Id. In making that objective determination, the court must view the matter from “the perspective of a reasonable officer on the scene, ” and consider “the relationship between the need for the use of force and the amount of force used; the extent of the plaintiff's injury; any effort made by the officer to temper or limit the amount of force; the severity of the security problem at issue; the threat reasonably perceived by the officer; and whether the plaintiff was actively resisting.” Id. at 397.
“An officer who fails to intervene is ‘liable for the preventable harm caused by the actions of the other officers where that officer observes or has reason to know that excessive force is being used.'” Gochnour v. Burri, No. 6:15-CV-06174 EAW, 2018 WL 10944594, at *3 (W.D.N.Y. July 9, 2018) (quoting Anderson v. Branen, 17 F.3d at 557). “Thus, liability attaches where (1) the officer had a realistic opportunity to intervene to prevent the harm; (2) a reasonable person in the officer's position would have known that the victim's constitutional rights were being violated; and (3) the officer did not take reasonable steps to intervene.” Id. (citing Jean-Laurent v. Wilkerson, 438 F.Supp.2d 318, 327 (S.D.N.Y. 2006), aff'd, 461 Fed.Appx. 18 (2d Cir. 2012)); see Vann v. Sudranski, No. 16-cv-7367 (VB), 2020 WL 3001072, at *6 (S.D.N.Y. June 4, 2020) (“[F]or liability to attach, there must have been a realistic opportunity to intervene to prevent the harm from occurring.”) (quoting Jean-Laurent v. Wilkerson, 461 Fed.Appx. 18, 21 (2d Cir. 2012)). “Whether the officer had a ‘realistic opportunity' to intervene is normally a question for the jury, unless, considering all the evidence, a reasonable jury could not possibly conclude otherwise.” Sloley v. Vanbramer, 945 F.3d 30, 47 (2d Cir. 2019) (citation omitted). 10
Here, Defendants contend Plaintiffs have “utterly failed to assert sufficient factual allegations” that Sgt. Remillard, C.O. Durocher, and/or C.O. Haley “acted with the necessary deliberate indifference to render” a failure to protect or failure to intervene claim plausible. (Dkt. No. 53-1 at 10-11.) The Court disagrees and notes the deliberate indifference cases relied upon by Defendants are inapposite. See Leckie v. City of New York, No. 18-CV-3917, 2021 WL 84234, at *5 (E.D.N.Y. Jan. 11, 2021) (granting summary judgment to defendant officer on Fourteenth Amendment failure to protect/failure to intervene claim where the undisputed facts showed the officer responded to the altercation “by promptly activating the alarm, summoning a Probe Team, and separating Leckie from the other inmates.”); Clark v. Gardner, 256 F.Supp.3d 154, 167-68 (N.D.N.Y. 2017) (dismissing Eighth Amendment failure to protect/intervene claims on initial review where plaintiff failed to plead the defendant officer knew of any risk or danger the inmate may have faced, let alone that he acted with deliberate indifference thereto).
Contrary to Defendants' assertion, “[a]t the [motion to dismiss] stage, the issue is not whether a plaintiff is likely to prevail ultimately, but whether the claimant is entitled to offer evidence to support the claims. Indeed it may appear on the face of the pleading that a recovery is very remote and unlikely but that is not the test.” McGuire v. Warren, 207 Fed.Appx. 34, 35 (2d Cir. 2006) (citations and quotation marks omitted). Here, the Court finds the amended complaint plausibly alleges Sgt. Remillard, C.O. Durocher, and C.O. Haley “acted intentionally . . . or recklessly failed to act with reasonable care to mitigate the risk . . . even though the defendant-official knew, or should have known, that the condition posed an excessive risk to health or safety.” Darnell, 849 F.3d 17 at 35. As such, the Court recommends denying Defendants' motion on this ground. 11
Defendants further contend the amended complaint fails to plausibly establish Sgt. Remillard, C.O. Durocher, and C.O. Haley would have had a reasonable opportunity to intervene during the alleged March 13, 2018, incident. (Dkt. No. 53-1 at 11.) According to Defendants, the alleged incident between Tarver and C.O. Burns “was sudden and there was no reasonable opportunity for officers to prevent the incident.” (Dkt. No. 53-1 at 11.) Again, the Court disagrees. The Second Circuit has rejected the notion that there is any “bright-line” for the amount of time under which a failure to intervene claim is not actionable. Figueroa v. Mazza, 825 F.3d 89, 107 (2d Cir. 2016). Instead it has emphasized that:
Failure-to-intervene claims can arise out of a limitless variety of factual circumstances. In each case, the question whether a defendant had a realistic chance to intercede will turn on such factors as the number of officers present, their relative placement, the environment in which they acted, the nature of the assault, and a dozen other considerations. Among these considerations, of course, the assault's duration will always be relevant and will frequently assume great importance.Id.
Here, although the exact duration of the alleged excessive force incident is unclear, Plaintiffs allege C.O. Burns engaged in a series of violent acts: first punching Tarver, then pushing him to the bed, and finally spraying him with mace. (Dkt. No. 33 at 218.) These allegations plausibly suggest that entire incident was of long enough duration that Sgt. Remillard, C.O. Durocher, and C.O. Haley, all of whom were alleged to be present and participated in the “shakedown” of Tarver's cell and witnessed C.O. Burns' actions, could have interceded at some point. Accordingly, the Court recommends that Defendants' motion be denied on this ground. 12
Moreover, “[w]hether the officer had a realistic chance to intervene is normally a question for the jury, unless, considering all the evidence, a reasonable jury could not possibly conclude otherwise.” Terebesi v. Torreso, 764 F.3d 217, 244 (2d Cir. 2014) (cleaned up); see, e.g., Mason v. Moore, No. 9:17-CV-1086 (GLS/DJS), 2020 WL 555943, at *5 (N.D.N.Y. Jan. 13, 2020) (rejecting the defendant officers' argument that because the excessive force incident in question lasted only approximately fifteen to twenty seconds, summary judgment was appropriate on the ground that the defendants would not have had an opportunity to intervene), report-recommendation adopted, 2020 WL 554816 (N.D.N.Y. Feb. 4, 2020).
Defendants next contend Plaintiffs have failed to establish the personal involvement of Sgt. Remillard, C.O. Durocher, and C.O. Haley in the excessive force claim. (Dkt. No. 53-1 at 13.)
“It is well settled in this Circuit that ‘personal involvement of defendants in alleged constitutional depravations is a prerequisite to an award of damages under § 1983.'” Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (quoting Moffit v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir. 1991)). Thus, “[i]n order to prevail on a section 1983 cause of action against an individual, a plaintiff must show some tangible connection between the constitutional violation and that particular defendant.” Green v. Walsh, No. 9:05-CV-00327 (TJM/DEP), 2008 WL 4517975, at *5 (N.D.N.Y. Sept. 29, 2008).
Here, Defendants argue the Fourteenth Amendment excessive force claims must be dismissed against Sgt. Remillard, C.O. Durocher, and C.O. Haley because there are “absolutely no factual allegations that could be plausibly read to suggest these officers engaged in excessive force against” Tarver. (Dkt. No. 53-1 at 13.) However, when the alleged constitutional violation is excessive force, “an officer may be personally involved in the use of excessive force if he either directly participates in the assault or if he was present during the assault, yet failed to intervene on behalf of the victim, even when he had the opportunity to so.” Jordan v. Fischer, 773 F.Supp.2d 255, 274 (N.D.N.Y. 2010). As noted, all three of officers were alleged to be present and failed to intervene to protect Tarver from C.O. Burns' use of excessive force. See, 13 e.g., Dkt. No. 33 at 137 (“Tarver . . . was assaulted by C.O. Burns, Sgt. Remillard, and the C.O.s listed in the incident report on March 13, 2018.”), 217 (“Each C.O. participated in the shakedown of Mr. Tarver's cell and the squat and cough. Mr. Tarver was assaulted as part of that squat and cough on March 13, 2018[, ] and C.O. Durocher, C.O. Haley failed to stop what was happening to Mr. Tarver and to protect him. C.O. Burns punched Mr. Tarver, pushed Mr. Tarver on the bed, and maced/pepper sprayed him. [Sgt.] Remillard stood outside the cell watching.”). At this stage, Plaintiffs have plausibly alleged the personal involvement of Sgt. Remillard, C.O. Durocher, and C.O. Haley in the excessive force incident. Therefore, the Court recommends denying Defendants' motion on this ground.
Moreover, in their response to Defendants' motion, Plaintiffs state that Sgt. Remillard, C.O. Durocher, and C.O. Haley were “participating” in the “squat and cough” and “these same several officers” pushed Tarver onto the bed and “then continued to mace him ever after he was down on the bed.” (Dkt. No. 60 at 11.) Plaintiffs further state that Sgt. Remillard and C.O. Burns provided “statements in the incident report where [C.O.] Burns admitted to restraining Mr. Tarver on the bed and handcuffing him. He also admits in a statement that Sgt. Remillard applied pepper spray to Mr. Tarver.” Id. at 17. Plaintiffs further claim the officers “were responsible for restraining [Tarver] on the bed after he had been maced by C.O. Burns, and they, as a group, continued to mace him while Mr. Tarver was already restrained on the bed. So they were involved in his assault.” Id.
Here, the Court agrees with Defendants that Plaintiffs have supplemented the factual allegations of the amended complaint by adding additional facts in their opposition papers. (Dkt. No. 61 at 5; compare Dkt 60 at 10-11, 17 with Dkt. No. 33 at 217-219.) Nevertheless, Plaintiffs are not “bound by the allegations contained in the four corners” of their pleading. (Dkt. No. 61 14 at 5.) To be sure, while some of this information was not initially pleaded in the amended complaint, which this Court previously described as a rambling, disjointed mix of allegations, legal articles, statutes, and caselaw, (Dkt. No. 36 at 3), “where a pro se plaintiff has submitted other papers to the Court, such as legal memoranda, the Court may consider statements in such papers to supplement or clarify the plaintiff's pleaded allegations.” Sommersett v. City of New York, No. 09-cv-5916, 2011 WL 2565301, at *3 (S.D.N.Y. June 28, 2011); see Walker v. Schult, 717 F.3d 119, 122 n.1 (2d Cir. 2013) (“A district court deciding a motion to dismiss may consider factual allegations made by a pro se party in his papers opposing the motion.”); Brooks v. Jackson, No. 11-cv-6627, 2013 WL 5339151, at *3 (S.D.N.Y. Sept. 23, 2013) (“[B]ecause a pro se plaintiff's allegations must be construed liberally, it is appropriate for a court to consider factual allegations made in a pro se plaintiff's opposition memorandum, as long as the allegations are consistent with the complaint.”).
In sum, drawing “all reasonable inferences” in Plaintiffs' favor, as required in ruling on a motion to dismiss, see Interworks Sys. Inc. v. Merchant Fin. Corp., 604 F.3d 692, 699 (2d Cir. 2010), the Court finds the amended complaint plausibly alleges Fourteenth Amendment excessive force and failure to protect claims against Defendants.
Accordingly, the Court recommends denying Defendants' motion for failure to state a claim. It bears repeating that this recommendation is based on the relatively lenient standard applicable to Rule 12(b)(6) motions. It remains to be seen whether, after discovery, summary judgment may be appropriate. 15
III. CONCLUSION
For the reasons stated above, the Court finds Plaintiffs' amended complaint plausibly alleges unavailability of administrative procedures and states Fourteenth Amendment excessive force and failure to protect claims against Defendants.
ACCORDINGLY, it is hereby
RECOMMENDED that Defendants' motion to dismiss (Dkt. No. 53) be DENIED; and it is further
ORDERED that the Clerk provide to Plaintiff a copy of this Order and Report-Recommendation, along with copies of the unpublished decisions cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen (14) days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN (14) DAYS WILL PRECLUDE APPELLATE REVIEW . Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec 'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72. 16
If you are proceeding pro se and are served with this Order and Report-Recommendation by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the Order and Report-Recommendation was mailed to you to serve and file objections. Fed.R.Civ.P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed.R.Civ.P. 6(a)(1)(C).