Opinion
No. 14 Civ. 4056 (CM)
09-18-2015
JOSE QUEZADA, Plaintiff, v. RICHARD ROY, et al., Defendants.
MEMORANDUM DECISION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS
:
Plaintiff Jose Quezada, proceeding pro se, brought this action against 21 corrections officers and administrators alleging that they violated his First, Eighth, and Fourteenth Amendment rights. He alleges that they retaliated against him for filing complaints, violated his right of access to the courts, denied him due process, and harassed him during his incarceration at Green Haven Correctional Facility ("Green Haven"). Before the Court is a motion to dismiss for failure to allege personal involvement filed by Defendants Richard Roy, Raymond Koskowski, Edward Burnett, Keith Schmitt, William Lee, Kevin O'Connor, and Stephanie Mryzglod (collectively, the "moving defendants").
Defendants' motion (Docket #80) lists Defendant Thomas Melville as one of the movants, but omits Defendant Edward Burnett. The Defendants' memorandum in law in support of the motion (Docket #81) lists Defendant Burnett, and omits Defendant Melville. I assume the motion is a mistake and treat the motion as if it included Defendant Burnett - and not Defendant Melville - because the Defendants' arguments in the accompanying memorandum relate to Defendant Burnett and not Defendant Melville. --------
For the reasons stated below, the court grants the motion with respect to Defendants Roy, Koskowski, Burnett, and Schmitt. The court denies the motion with respect to Defendants Lee, O'Connor, and Mryzglod.
BACKGROUND
Plaintiff alleges that, upon arriving at Green Haven - the complaint is not clear about his arrival date, but it was in or about 2006 - he was harassed and retaliated against for having filed a 42 U.S.C. § 1983 lawsuit based on events that occurred at his previous correctional facility.
Plaintiff filed a second § 1983 action in February 2009 against several of the defendants in this case. The present action is about harassment Plaintiff allegedly experienced while he was incarcerated at Green Haven. Plaintiff claims he was insulted, yelled at, made to wait for supplies, denied materials he needed to work on his legal papers, denied a valid ID card, and assaulted in retaliation for having filed the second § 1983 lawsuit.
The moving defendants are corrections officers and administrators who either worked at Green Haven or had some role overseeing operations there. In particular, at the time of the events giving rise to the complaint:
• Richard Roy was the Inspector General for the Department of Corrections and Community Supervision ("DOCCS");
• William Lee was Superintendent of Green Haven;
• Raymond Koskowski was the Deputy Superintendent for Security;
• Edward Burnett was a Captain at Green Haven;
• Keith Schmitt was a Lieutenant at Green Haven;
• Kevin O'Connor was a Sergeant at Green Haven; and
• Stephanie Mryzglod was a nurse at Green Haven.
Many of Plaintiff's allegations are vague, and he does not always provide dates for their purported occurrence. But he does allege several incidents with enough detail to describe below.
A. Harassment
In May 2009 - only a few months after he filed the second § 1983 suit - Plaintiff filed a grievance against Officers Macisaac and Cefaloni "because they threated the Plaintiff with planting a weapon in Plaintiff's cell or in his possession." (Am. Compl., ¶ 8.) Plaintiff says that he told Defendant Lee that the officers' actions constituted retaliation for filing the second lawsuit, and that Lee should not believe any reports accusing Plaintiff of possessing a weapon or otherwise misbehaving. (Id. at ¶ 9.) He alleges that Defendant Lee did not conduct "a full and/or complete investigation into this matter." (Id. at ¶ 10.)
B. Denial of Legal Supplies
Plaintiff alleges that, at some unspecified time or times, he tried to inform "several courts" that the defendants were denying him access to legal supplies, but that the defendants told him that "his mail never went out or arrived in the Correspondence unit, which means that his mail was destroyed or missing, and the Court or outside agencies never received his mail." (Am. Compl., ¶ 18.) He says this was "all in retaliation." (Id.)
Plaintiff also alleges that he lacked the supplies necessary to do his legal work, starting in January 2010. (Id. at ¶ 21.)
He says he told Defendant Lee and the Special Housing Unit ("SHU") supervisor that he lacked supplies, but they did not resolve the situation. (Id. at ¶ 21-22). Plaintiff ascribes the lack of supplies to defendants' intentionally denying him supplies in retaliation for having filed the second § 1983 lawsuit. (Id.) He alleges that he asked Defendant Lee to investigate the issue. (Id.)
Plaintiff further claims that Defendant Lee directed the law library supervisor to refuse to allow him to make copies (of what is not clear) unless Plaintiff provided a court order specifying the number of copies he was supposed to provide the court and opposing counsel. (Id. at ¶ 24.)
C. Safety Fears
Plaintiff alleges that he informed numerous officials about his safety fears and desire to be placed in protective custody or transferred to a cell block away from Officers Macisaac, Cefaloni, and Michael Mryzglod. (See Am. Compl., ¶ 26-27.) For example, he told Defendant Lee that these officers "already threatened Plaintiff with assaulting him again." (Id. at ¶ 27.) He also contacted Defendant Koskowski with his concerns about being placed in the same cell block as the officers. (Id. at ¶ 28.) He alleges that he also "made several requests to the administration requesting to be transferred for security reasons." (Id. at ¶ 28.) He does not date these requests.
D. "Snitch" Rumors and Inmate Assault
On April 1, 2010, Plaintiff was released into the general population from the SHU. (Am. Compl., ¶ 30.) Upon release, he was housed in H-Block despite allegedly asking Defendants Lee and Koskowski, among others, to assign him to E-Block or G-Block upon leaving the SHU. (Id. at ¶ 27, 30.)
Once he arrived in H-Block, Plaintiff wrote several letters complaining about his placement to Defendants Lee, Koskowski, Roy, and others. He asserted that his life was in danger because Officers Macissac and Cefaloni, who were defendants in his second lawsuit, worked in H-Block. He asked to be transferred out of Green Haven. (Id. at ¶¶ 31-43.)
Defendant Lee denied Plaintiff's transfer request on June 16, 2010. Plaintiff alleges that Lee denied the request out of indifference to Plaintiff's safety at Green Haven. (Id. at ¶¶ 44-45.)
On July 28, 2010, Plaintiff informed the Deputy Superintendent of Programs, who is not named as a defendant here, that some of the defendants from his prior lawsuit were spreading rumors that Plaintiff was a "snitch." (Id. at ¶ 48.) Plaintiff also filed a complaint with Defendants Lee and Roy against Officers Macissac, Cefaloni, and others, alleging the same thing. (Id. at ¶ 49.) Several inmates allegedly questioned Plaintiff about these rumors. (Id.)
Shortly thereafter, three unidentified inmates assaulted Plaintiff in the prison yard and accused him of being a snitch. (Id. at ¶ 50.) Plaintiff alleges that certain of the defendants continued to spread rumors that he was a snitch, while moving him from block to block within Green Haven. (Id. at ¶¶ 51-58.)
E. Diet Card Confiscation
On October 27, 2010, while Plaintiff was trying to get a therapeutic diet meal, Officer Henschel allegedly warned Plaintiff that he would attack Plaintiff if he made any trouble. (Id. at ¶¶ 60-62.) Plaintiff alleges that he was showing his diet card to another officer at the time and made no move to provoke Officer Henschel. (Id.)
On November 4, 2010, Plaintiff filed a complaint against Officer Henschel arising out of this incident. (Id. at ¶ 60.) Defendant Melville investigated the claim but was unable to substantiate it. (Id. at ¶ 62; Melville Investigation Letter, Am. Compl., Ex. 13.)
On December 7, 2010, Officer Henschel allegedly threatened and berated Plaintiff again when he went to check in for his diet meal. (Am. Compl., ¶¶ 63-64.) Plaintiff claims that he informed Defendant Badger, the head cook, about this confrontation, but that she refused to act on the information. (Id. at ¶ 64.) Plaintiff complained to Captain Burnett and then filed a grievance against Officer Henschel and Badger. (Id. at ¶¶ 64-65; Grievance GH-70696-10, Am. Compl., Ex. 15.)
Plaintiff alleges that Officer Henschel threatened him a third time, on December 8, 2010. (Id. at ¶ 67.) That afternoon, Plaintiff observed Badger and Officer Henschel talking, after which Badger confiscated Plaintiff's diet card. (Id. at ¶ 68.) Plaintiff alleges that Badger took the card in retaliation for mentioning her in his prior grievance. Plaintiff filed a subsequent grievance against her on December 23, 2010. (See Grievance GH-70764-11, Am. Compl., Ex. 16.) Defendant Lee denied both grievances, and on appeal the Central Office Review Committee ("CORC") upheld his decisions. (See Grievance GH-70696-10, Am. Compl., Ex. 15; Grievance GH-70764-11, Am. Compl., Ex. 16.)
F. Transfer Back to H-Block
On January 6, 2011, while Plaintiff was housed in F-Block, he was told he would be moving back to H-Block, where Officers Macisaac and Cefaloni worked. (Id. at ¶ 73.) Plaintiff refused to transfer and asked either to see his psychologist or to be placed in protective custody, because he feared the defendants working in H-Block. (Id. at ¶ 73.) Defendant O'Connor, the H-Block Supervisor, refused to place Plaintiff in protective custody, allegedly because inmates could not be placed in protective custody based upon fear of particular officers. Instead O'Connor escorted Plaintiff to the Mental Health Unit. (Id. at ¶¶ 75-76.) After speaking with his psychologists and Defendant O'Connor, Plaintiff claims he was told he would be moved to H-Block for just two days, and that he would be fed in his cell to avoid any problems with Officers Macisaac, Cefaloni, Henschel, and Michael Mryzglod. (Id. at ¶ 77.)
After Plaintiff was moved to H-Block and locked in his cell, someone allegedly turned off the water and electricity to his cell. (Id. at ¶ 79.) Plaintiff also did not receive a footlocker for his belongings. (Id.) Plaintiff complained to Officer Macisaac, who allegedly did nothing. (Id.) Plaintiff's family allegedly called the facility and complained about his condition. (Id.) On January 13, 2011, the water and electricity were restored, but Plaintiff never received a footlocker. (Id. at ¶ 80.)
On January 25, 2011, Plaintiff went to Building 12 to interview for transitional services. (Id. at ¶ 85.) While there, Officer Henschel allegedly defaced Plaintiff's ID card by scratching off Plaintiff's picture with his keys. (Id.)
On February 3, 2011, Plaintiff returned to transitional services and Officer Henschel allegedly defaced Plaintiff's ID card again - this time in front of Plaintiff - and threatened him with a ticket if he tried to retrieve the card before the end of his program. (Id. at ¶ 87.) Plaintiff complained to two of the teachers in the room, one of whom was the school supervisor. (Id. at ¶ 88.) As Plaintiff did so, Officer Henschel allegedly tried to intimidate him by raising a clenched fist. (Id.)
On February 9, 2011, Plaintiff tried to retrieve his ID card after a class, only to have Officer Henschel say that "he didn't know about the Plaintiff's ID card." (Id. at ¶ 89.) While one of the teachers went to get Plaintiff a new card, Officer Henschel allegedly told Plaintiff that he would never give the ID card back if Plaintiff kept making complaints. (Id.) After Plaintiff returned to his cell, another officer brought Plaintiff his ID card. (Id.) Plaintiff later filed a grievance against Officer Henschel for harassment and retaliation. (See Grievance GH-71071-11, Am. Compl., Ex. 22.)
On an unidentified day in March 2011, Plaintiff was approached by Defendant Brenda Surber, who allegedly berated him for filing complaints and lawsuits against officers she supervised. (Id. at ¶ 90.) Plaintiff tried to leave, but Officers Macisaac and Cefaloni restrained him until Surber told them to let him go. (Id. at ¶ 91.)
G. Missing Property
On March 22, 2011, Plaintiff was scheduled to go to court. (Id. at ¶ 94.) Officer Michael Mryzglod came to his cell to pack his papers for transit, which Plaintiff alleges filled two new draft bags. (Id.) When he arrived at Downstate Correctional Facility to await his court appearance, Plaintiff discovered that the bottom of one of the bags had been slashed open and several documents were missing. (Id. at ¶ 95.)
On April 5, 2011, while on another trip to court, Plaintiff filed a telephone complaint with the Inspector General's office against Surber, Macisaac, Cefaloni, and Michael Mryzglod. (Id. at ¶ 96; 4/5/11 Phone Complaint, Am. Compl., Ex. 25.)
Upon his return to Green Haven on April 8, 2011, Plaintiff did not receive a razor along with his property. (Am. Compl., ¶ 97.) He complained, and, on April 19, 2011, when Plaintiff returned from recreation, he was told that he hadn't received a razor because he was out of his cell. (Id. at ¶ 98.) Plaintiff wrote to Defendant Lee to apprise him of the situation so Plaintiff wouldn't "be issued a Misbehavior Report for not having the razor." (Id. at ¶ 99.) He received a razor the next day, but complained to Defendant Lee that he hadn't received a receipt for the razor because the defendants were trying to "get [him] in trouble." (Id. at ¶ 100.)
H. Assault in B-Block
On April 28, 2011, Plaintiff alleges that Sergeant Surber harassed him about his April 5 complaint to the Inspector General and threatened to transfer him to Attica Correctional Facility. (Id. at ¶ 103.) Plaintiff immediately filed another complaint against Sergeant Surber. (Id. at ¶ 104.) When he tried to give a copy of the complaint to Defendant Lee and the Hub Superintendent, Ada Perez, Sergeant John Conforti allegedly took it from him. (Id. at ¶ 105.)
On May 6, 2011, the block officer told Plaintiff he would be moving to B-Block. (Id. at ¶ 106.) Plaintiff alleges that another inmate told him that Sergeant Surber had arranged for the move so that she could assault or kill Plaintiff. (Id.) Plaintiff informed Defendant O'Connor that he would not move, and said he wanted to see his psychologist. (Id. at ¶ 107.) Defendant O'Connor told Plaintiff he could either go to B-Block or to the SHU. (Id.)
After he moved to B-Block, Plaintiff asked to be put in protective custody or to see his psychologist, a request that Defendant O'Connor allegedly denied. (Id. at ¶ 108.)
On May 16, 2011, Plaintiff was interviewed by Defendant Schmitt regarding his complaint against Surber, Macissac, and Cefaloni. (Id. at ¶ 111.)
After this interview, Plaintiff had a visit from his attorney. (Id. at ¶ 112.) While plaintiff was waiting to return to his cell, he saw Sergeant Surber enter the building, notice him, and leave. (Id. at 113.) Officer Brothers allegedly then told Plaintiff, "I'll see you later." (Id.)
Upon returning to his cell, Plaintiff was told that he was in transit - though he did not know if he was being transferred to another facility or in transit for a court appearance. (Id. at ¶ 114.) While packing his bags for transit, Plaintiff spoke with Defendant Burnett and told him that he was in transit, whereupon Defendant Burnett left the housing unit. (Id.)
Shortly thereafter, Officer Macisaac entered Plaintiff's cell. Plaintiff alleges that Officer Macisaac screamed, "Drop the weapon!" and then cut himself. (Id. at ¶ 116.) Officer Matthew Filipponi then entered Plaintiff's cell and allegedly yelled, "Stop resisting!" (Id. at ¶ 117.) Officers Macisaac and Filipponi, along with Officers Corbin, Tokarz, and Brothers, allegedly proceeded to assault and beat Plaintiff. (Id. at ¶¶ 118-19.) Sergeant Alexander allegedly watched and did nothing, at one point joining in on the purported assault. (Id. at ¶ 119.) Defendants then allegedly took Plaintiff out of his cell and continued to beat him in front of Defendant Melville, who did nothing to stop it. (Id. at ¶ 120.) Officer Sonya Rojas allegedly watched as well. (Id.)
Sergeant Alexander then told the other defendants to take Plaintiff to the SHU. (Id.) On the way, Officers Corbin and Brothers allegedly continued to beat Plaintiff. (Id. at ¶ 121.)
When Plaintiff arrived at the SHU, he was examined by Nurse D. Gusattney, who allegedly wrote up Plaintiff's injuries based on Sergeant Alexander's statements and only superficially examined him. (Id. at ¶ 122.) He was then examined by Dr. Ventivena, who ordered that Plaintiff be transferred to St. Luke's Hospital. (Id.)
While Plaintiff was awaiting transfer, a detective from the State Police interviewed him and told him that two other detectives had found a razor blade in his cell. (Id. at ¶ 123.)
Plaintiff was also interviewed by two investigators from the Inspector General's office as he was traveling through Green Haven in transit to the hospital. (Id. at ¶¶ 124-25.)
Plaintiff alleges that he suffered "cuts and lacerations on his body, left shoulder, legs and multiple other injuries including a fracture on his back, dislocation in his right shoulder," and other "serious injuries." (Id. at ¶ 127.) After he was examined, he was transferred to Shawangunk Correctional Facility. (Id. at ¶ 128.)
Plaintiff's remaining allegations concern events that occurred at other correctional facilities outside this district. They are the subject of a second lawsuit in the Northern District of New York.
PROCEDURAL HISTORY
Plaintiff filed his original complaint in this court on May 7, 2013. (Docket #3.) This court transferred the action to the Northern District of New York on July 22, 2013. (Docket #15.) On October 7, 2013, Plaintiff filed an Amended Complaint, which he describes as "virtually identical to the original Complaint . . . except that the amended complaint identified by name three John Doe defendants included in the complaint." (See Plaintiff's Memorandum of Law in Opposition to Defendants' Partial Motion to Dismiss Amended Complaint at 2, Docket #134.)
On March 31, 2014, the Northern District severed the claims arising out of events at Green Haven from the claims arising out of correctional facilities located in the Northern District, and transferred the Green Haven claims back to this court. (Docket #38.) The case was given a new docket number, which explains why it is listed as a 2014 case when it was actually filed in 2013.
DISCUSSION
A. Legal Standard
"To survive a motion to dismiss under Rule 12(b)(6) . . . a complaint must contain sufficient factual matter accepted as true, to state a claim to relief that is plausible on its face." Mabry v. Neighborhood Defender Svc., 769 F. Supp. 2d 381, 389 (S.D.N.Y.2011) (citing Ashcroft v. Iqbal, 556 U.S. 662 (2009)). "[A] plaintiff's obligation . . . requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). "Although for the purposes of a motion to dismiss we must take all of the factual allegations in the complaint as true, we are not bound to accept as true a legal conclusion couched as a factual allegation." Iqbal, 556 U.S. at 678.
In deciding a motion to dismiss pursuant to Rule 12(b)(6), a court evaluates the sufficiency of the complaint under the "two-pronged approach" suggested by the Supreme Court in Iqbal. First, "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements," are not entitled to the assumption of truth and are thus not sufficient to withstand a motion to dismiss. Iqbal, 556 U.S. at 678; Hayden v. Paterson, 594 F.3d 150, 161 (2d Cir. 2010). Second, "When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief." Iqbal, 556 U.S. at 679. A claim is facially plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 678. "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id.
In an action under 42 U.S.C. § 1983, defendants cannot be held liable under a theory of respondeat superior. See Monell v. City of New York Dep't of Social Services, 436 U.S. 658, 691 (1978). "Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution." Iqbal, 556 U.S. at 676. At the supervisory level, a plaintiff must allege that a defendant specifically has a "direct and personal responsibility for the purportedly unlawful conduct of his subordinates." Black v. United States, 534 F.2d 524, 527-528 (2d Cir. 1976). "Iqbal precludes relying on a supervisor's mere knowledge of a subordinate's mental state (i.e., discriminatory or punitive intent) to infer that the supervisor shared that intent. But that is not to say that where the supervisor condones or ratifies a subordinate's discriminatory or punitive actions the supervisor is free of [§ 1983's] reach." Turkmen v. Hasty, 789 F.3d 218, 233 (2d Cir. 2015) (citations omitted). Indeed, under Second Circuit precedent:
The personal involvement of a supervisory defendant may be shown by evidence that: (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 of inmates by failing to act on information indicating that unconstitutional acts were occurring.Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995). Although Defendants try to evade it, I have already stated elsewhere my belief that, even post-Iqbal, "Colon remains the standard for establishing personal involvement by supervisory officials under 42 U.S.C. § 1983." Plunkett v. City of New York, 2011 WL 4000985, at *9 (S.D.N.Y. Sept. 2, 2011).
It is nonetheless well-established that, "Mere linkage in the prison chain of command is insufficient to implicate a state commissioner of corrections or a prison superintendent in a § 1983 claim." Richardson v. Goord, 347 F.3d 431, 435 (2d Cir. 2003). Broad, conclusory allegations that a high-ranking defendant was informed of an incident are also insufficient. See, e.g., Hernandez v. Goord, 312 F. Supp. 2d 537, 547 (S.D.N.Y. 2004). Receipt of letters or grievances, by itself, does not amount to personal involvement. See Mateo v. Fischer, 682 F. Supp. 2d 423, 431 (S.D.N.Y. 2010); Warren v. Goord, 476 F. Supp. 2d 407, 413 (S.D.N.Y. 2007). But, "A supervisor's detailed, specific response to a plaintiff's complaint suggests that the supervisor has considered the plaintiff's allegations and evaluated possible responses," which suffices to make the supervisor personally involved. See Mateo, 682 F. Supp. 2d at 430-31.
Because Plaintiff is proceeding pro se, "this Court will consider as true facts taken not just from plaintiff's complaint and accompanying exhibits, but also plaintiff's responsive memoranda." Hernandez, 312 F. Supp. 2d at 542-43. "The court may consider factual allegations made by a pro se plaintiff in opposition papers and other additional materials." Baskerville v. Blot, 224 F. Supp. 2d 723, 728 (S.D.N.Y. 2002). "In this regard, the court may treat the pro se plaintiff's response to the dismissal motion as a de facto amendment to, or clarification of, his complaint." Colon-Rodriguez v. New York City Dep't of Correction, 2009 WL 995181, at *3 (S.D.N.Y. Apr. 13, 2009).
The only ground assigned for dismissal in Defendants' motion was lack of personal involvement. In their Reply Brief, the moving defendants finally note what was obvious to the court upon reading the complaint. Some of the allegations in the complaint (those listed as items A and B above) are most likely time barred because they took place more than three years before the original complaint was filed in May of 2013. See Evans v. Esparra, 2000 WL 1946822, at *4 (S.D.N.Y. Jan. 9, 2000). Plaintiff alleges that he complained to Defendant Lee about the incident of harassment described in Item A, but as pleaded this incident had been time barred for more than a year at the time this action was commenced. Defendant Lee was also allegedly involved in the incident involving the lack of legal supplies in Item B, but Plaintiff pleads that he first lacked supplies (January 11, 2010). Plaintiff must establish that the "supplies" incident involving Defendant Lee occurred after May 7, 2010 for his claim to be timely.
However, since Lee's motion must be denied on the ground that the complaint alleges acts involving him that occurred within the statute of limitations, there is no need to delve further into this issue. It can be properly raised, documented and briefed at a later date.
B. The Claims Against Roy, Koskowski, Burnett, and Schmitt Are Dismissed
1. Richard Roy
Defendant Roy was the DOCCS Inspector General. His position in the DOCCS hierarchy is not enough to hold him liable for the actions of others, and there is no allegation that Roy participated in any of the beatings or other retaliatory acts against Plaintiff. Plaintiff alleges that he sent grievances and complaints to Roy on several occasions, or copied Roy on grievances he submitted to Superintendent Lee. (See, e.g., Am. Compl., Exs. 6-7.) But the fact that Plaintiff sent grievances to Roy is also not enough to hold him liable. See, e.g, Hernandez, 312 F. Supp. 2d at 547. Nor is a prison official's failure to investigate a prisoner's grievances or complaints actionable under § 1983. See, e.g., Swift v. Tweddell, 582 F. Supp. 2d 437, 445-46 (W.D.N.Y. 2008); Torres v. Mazzuca, 246 F. Supp. 2d 334, 342 (S.D.N.Y. 2003).
Plaintiff argues that the fact that he was harassed and assaulted after sending copies of grievances and complaints to Roy means that Roy failed to correct the unconstitutional conduct of which Plaintiff complained. But Plaintiff alleges no facts suggesting that Roy knew about unconstitutional conduct by his subordinates and failed to intervene or was willfully blind to such conduct. In his responsive papers, Plaintiff also states legal conclusions, such as that Roy was grossly negligent in supervising his subordinates or deliberately indifferent to Plaintiff's complaints for help. But a court is "not bound to accept as true a legal conclusion couched as a factual allegation." Iqbal, 556 U.S. at 678. Even from a pro se plaintiff, reciting legal conclusions is insufficient to state a claim.
The claims against Defendant Roy are dismissed because Plaintiff fails to allege that Roy committed any actionable misconduct.
2. Raymond Koskowski
Defendant Koskowski was the Deputy Superintendent for Security at Green Haven. Plaintiff alleges that he sent numerous complaints to Koskowski, and that Superintendent Lee forwarded several of Plaintiff's complaints to Koskowski for investigation. (See., e.g., Am. Compl., ¶ 32 and Ex. 1.)
Mere receipt of complaints is not sufficient to establish liability. And, to the extent that Plaintiff alleges a failure to investigate his claims, failure to investigate a prisoner's complaints is not actionable under § 1983. E.g., Swift, 582 F. Supp. 2d at 445-46; Torres, 246 F. Supp. 2d at 342.
The claims against Defendant Koskowski are dismissed because Plaintiff fails to allege that Koskowski committed any actionable misconduct.
3. Edward Burnett
Defendant Burnett was a Captain at Green Haven. Plaintiff alleges that he complained to Defendant Burnett about his situation on two occasions. First, Plaintiff alleges that he wrote to Burnett about his housing assignment and to request a time-cut. (See Am. Compl., ¶ 20.) Second, Plaintiff claims that he complained to Burnett about Henschel's conduct concerning his diet card. (Id. at ¶ 64.) Plaintiff also alleges that on the day he was assaulted, he saw Burnett in his cell block and told Burnett that he was in transit. (Id. at ¶ 114.)
None of these allegations is sufficient to hold Burnett liable.
Plaintiff does not allege that Burnett determined his housing assignment. Nor does he allege that Burnett failed to take action in response to Plaintiff's complaints about Officer Henschel. The fact that Plaintiff complained to Burnett is insufficient, because mere knowledge of subordinates' alleged misconduct is not sufficient to hold Burnett liable for their actions. See., e.g., Iqbal, 556 U.S. at 672, 678.
In addition, Burnett's mere presence in Plaintiff's cell block the day Plaintiff was allegedly assaulted is not sufficient to state any claim against Burnett. Plaintiff only alleges that Burnett spoke to him briefly that day and then left. Plaintiff does not allege that Burnett took part in the alleged assault - or, indeed, that he was even aware it occurred.
In Plaintiff's opposition papers, he tries to add factual allegations responding to this argument. He now says Burnett "was already aware that plaintiff w[ould] be assaulte[d]," and that "he directed the assault because plaintiff didn't stopped [sic] filing grievances and complaint[s]." (Plaintiff's Opposition to Defendants' Partial Motion to Dismiss at 35-36, Docket #134.) But this is pure conjecture. Plaintiff offers no facts that would support either new contention, so it is not plausible that Burnett was involved. As Iqbal cautions, there must be "more than a sheer possibility that a defendant has acted unlawfully" to state a claim. Iqbal, 556 U.S. at 678.
The claims against Defendant Burnett are dismissed because Plaintiff fails to allege that Burnett committed any actionable misconduct.
4. Keith Schmitt
Defendant Schmitt was a Lieutenant at Green Haven. Plaintiff alleges that Schmitt interviewed him on May 16, 2011 about his complaint against Sergeant Surber, Officer Macisaac, and Officer Cefaloni. (See Am. Compl., ¶ 111.) In his opposition papers, Plaintiff claims that during that interview, Schmitt asked Plaintiff to withdraw the complaint.
Failure to process or investigate prisoner complaints it not actionable under § 1983. Swift, 582 F. Supp. 2d at 445-46.
The claims against Defendant Schmitt are dismissed because Plaintiff fails to allege that Schmitt committed any actionable misconduct.
C. The Claims Against Lee, O'Connor, and Mryzglod Are Not Dismissed
1. William Lee
Defendant Lee was the Superintendent at Green Haven. The majority of Plaintiff's allegations against Defendant Lee relate to Plaintiff's grievances and complaints, but Lee's receipt of these complaints is not sufficient to state a claim against him. To the extent that Plaintiff seeks to hold Lee liable based on rejecting his grievances, the fact that Lee rejected Plaintiff's grievances when they were appealed to him is also insufficient. See McKenna v. Wright, 386 F.3d 432, 437 (2d Cir. 2004). Nor is forwarding complaints to subordinates for response actionable. See Sealey v. Giltner, 116 F.3d 47, 51 (2d Cir. 1997).
But beyond Lee's mere receipt of complaints and grievances, Plaintiff sufficiently alleges Lee's personal involvement. In particular, Plaintiff alleges that he requested a transfer for security reasons, and that Lee "had full knowledge of a risk of physical abuse to the Plaintiff and he failed to act in deliberate indifference to that risk." (Am. Compl., ¶ 45.) He further alleges that Lee "personally participated in the infliction of the Plaintiff's injuries" and "knew that if the Plaintiff stayed in Greenhaven Correctional Facility he would be exposed to a substantial risk of physical abuse or to be killed in the facility." (Id.)
Plaintiff also suggests that Lee responded to several of his complaints in a detailed and specific manner. (See Plaintiff's Opposition to Defendants' Partial Motion to Dismiss at 8-9, Docket #134.) And because "[a] supervisor's detailed, specific response to a plaintiff's complaint suggests that the supervisor has considered the plaintiff's allegations and evaluated possible responses," it suffices to make the supervisor personally involved. See Mateo v. Fischer, 682 F. Supp. 2d 423, 430-31 (S.D.N.Y. 2010).
Such allegations, particularly from a pro se plaintiff, are sufficient to allege the personal involvement of Defendant Lee. Because Plaintiff alleges sufficient personal involvement of Defendant Lee, the claims against him are not dismissed.
2. Kevin O'Connor
Defendant O'Connor was a Sergeant at Green Haven. Plaintiff initially alleges that Defendant O'Connor "notified Lieutenant Carey that he was present and saw the Plaintiff while he was processed through the H-Gate Corridor, but he covered up the Defendants' misconduct and refused to investigate the incident." (See Am. Compl., ¶ 10.) Plaintiff does not describe what alleged incident he is talking about, when that incident took place, or who was involved. Accordingly, there is no basis to find O'Connor liable based on these allegations.
Plaintiff also alleges that, on two occasions, O'Connor refused to put Plaintiff into protective custody despite Plaintiff's suspicions that certain of the defendants intended to harm him. (Id. at ¶¶ 74-75, 107-08.) Although it is true that correction officers and prison officials are not required to put prisoners in protective custody simply because they ask for it, see Veytruba v. Coughlin, 1984 U.S. Dist. LEXIS 19224, at *4 (S.D.N.Y. Feb. 23, 1984), Plaintiff alleges that O'Connor knew or should have known that Plaintiff needed to be in protective custody and ignored such knowledge, (Am. Compl., ¶ 74). In fact, Plaintiff alleges that he told O'Connor he wanted protection from some of the defendants, and that O'Connor bluntly responded: "prison inmates are not allowed to be placed in Protective Custody against officers because it would be conceding that a problem does exist between the Plaintiff and C.O.s Macisaac, Cefaloni, Mryzglod and Henschel and they have to protect the Plaintiff from the Defendants." (Id. at ¶ 75.)
Plaintiff also alleges in his opposition papers that O'Connor told Plaintiff that he knew about the "retaliation, harassment, intimidation and other violations, against the plaintiff but this information was off the record because if plaintiff said something O'Connor was going to den[y] the allegation." (See Plaintiff's Opposition to Defendants' Partial Motion to Dismiss at 22, Docket #134.)
Because these statements sufficiently allege personal involvement by Defendant O'Connor, the claims against him are not dismissed.
3. Stephanie Mryzglod
Defendant Stephanie Mryzglod, who is married to Defendant Michael Mryzglod, was a nurse at Green Haven. Plaintiff alleges that she was a defendant in his second § 1983 action, the earlier action involving Green Haven personnel. (See Am. Compl., p. 3, ¶ 28; p. 5.) Plaintiff also alleges that he told the Medical Director that he had a medical hold improperly put on him by "someone . . . to make sure the Plaintiff stayed in Greenhaven Correctional Facility and be assaulted or even killed and because the Defendants were planning to do something to the Plaintiff in conjunction with Defendants (Stephanie Mryzglod and her husband Michael Mrysglod and Macisaac and Cefaloni)." Id. at ¶ 40. Such conclusory allegations that "someone" placed a hold on Plaintiff so a group of Defendants could do "something" to him is not enough to allege Mryzglod's personal involvement.
But in Plaintiff's opposition papers, he adds new allegations about Defendant Mryzglod. He alleges that she covered up staff misconduct in retaliation for Plaintiff's naming her in his prior lawsuit. (See Plaintiff's Opposition to Defendants' Partial Motion to Dismiss at 28-29, Docket #134.) He further alleges that "Mryzglod falsified medical records to cover up the beating against the plaintiff and . . . participated in the self-inflicted injuries to Macisaac at the clinic on 5/16/11." (Id. at 29.) Plaintiff claims that another inmate told Plaintiff that he overheard Mryzglod discussing with other nurses and officers how they would falsely accuse Plaintiff of the attack on Officer Macisaac. (Id.) According to this inmate, "They then resolved to concoct and fabricate a false report to justif[y] the malicious[] physical assault on plaintiff." (Id.). Plaintiff alleges that Mryzglod was a part of the conspiracy to assault him and cover it up. (Id. at 30.)
Because these statements sufficiently allege Defendant Mryzglod's personal involvement, the claims against her are not dismissed.
CONCLUSION
For the foregoing reasons, Defendants' motion to dismiss for lack of personal involvement is granted with respect to Defendants Richard Roy, Raymond Koskowski, Edward Burnett, and Keith Schmitt, and denied with respect to Defendants William Lee, Kevin O'Connor, and Stephanie Mryzglod.
Defendants Lee, O'Connor, and Mryzglod have made a separate motion for summary judgment on the ground of qualified immunity; I will address that issue in another opinion.
The Clerk of the Court is directed to remove Docket #80 from the Court's list of pending motions. Dated: September 18, 2015
/s/_________
U.S.D.J. BY ECF TO ALL COUNSEL