Opinion
02 CIV. 7668 (DLC)
September 25, 2003
Ruben A. Slacks, Elmira Correctional Facility, Elmira, N.Y. for Plaintiff
Hillary A. Tennant, Assistant Attorney General of the State of New York, New York, NY, for Defendant
OPINION AND ORDER
On September 3, 2002, the Pro Se Office of this district received a complaint filed pursuant to 42 U.S.C. § 1983 by Ruben A. Slacks ("Slacks") arising from injuries suffered during a softball game on April 27, 2002, at the Green Haven Correctional Facility ("Green Haven"). The complaint seeks damages and injunctive relief requiring Green Haven to allow softball games to be played in a larger space, specifically, the Fay Field ball field at the prison. The motion to dismiss filed by defendant Charles Greiner ("Greiner"), the former Superintendent of Green Haven, is granted in part.
The plaintiff filed an amended complaint on June 10, 2003. The amended complaint has not been served on the defendant.
BACKGROUND
The following facts are as alleged in the complaint, and in two instances, as alleged in the plaintiff's proposed amended complaint. On April 27, 2002, Slacks was hit in the face with a softball while other prisoners were playing softball in a small recreation area at Green Haven. Slacks has suffered severe pain from the injury, has received treatment to his left eye, and suffers migraine headaches. He has been told that there is nerve damage; the left side of his face is numb.
The allegations of the amended complaint parallel those in the original complaint except where noted.
The small recreation area where the injury occurred is too small for all of the prisoners — both softball players and non-players who are engaged in other recreational activities — during a softball game. Although prison officials require the use of "low flight" softballs in the recreational area, these low flight balls can still be hit substantial distances. The installation of television sets in the recreational area has increased the risk of harm since non-playing prisoners' attention is diverted from the field. Other non-playing prisoners have also been injured, according to the amended complaint, by these low flight softballs. The amended complaint also alleges that Grenier has personally visited the recreational area and observed the softball playing conditions.
On January 21, 2003, the defendant filed a motion to dismiss. The opposition was due June 13, 2003. While the plaintiff has not filed an opposition, he did file his amended complaint on June 10, 2003. In this motion, the defendant argues that the plaintiff has failed to allege sufficient facts to state a claim that the defendant failed to provide the safe environment required by the Eighth Amendment to the United States Constitution, has failed to allege sufficient facts of Greiner's personal involvement to support this claim against him, and that Greiner is entitled to qualified immunity. It is undisputed that Slacks exhausted administrative remedies before bringing this claim.
The deadline for plaintiff's opposition was extended to this date in June because of his transfer to a new facility and the inadvertent misdirection of court correspondence to his former facility.
DISCUSSION
The Second Circuit has recently confirmed that, for a motion to dismiss, the liberal notice pleading standard under Rule 8(a), Fed.R.Civ.P., is the applicable standard for evaluating the complaint of an inmate alleging an Eighth Amendment cause of action. Phelps v. Kapnolas, 308 F.3d 180, 186 (2d Cir. 2002). A complaint is sufficient if it gives "fair notice of what the plaintiff's claim is and the grounds upon which it rests." Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002) (citation omitted). It may appear on the face of the pleading that a "recovery is very remote and unlikely but that is not the test." Phelps, 308 F.3d at 185 (citation omitted). A court may only dismiss a complaint if the plaintiff can "prove no set of facts in support of his claim which would entitle him to relief." Id. at 184 (citation omitted).
When considering motions to dismiss a pro se complaint, "courts must construe the complaint broadly, and interpret it to raise the strongest arguments that it suggests." Weixel v. Bd. of Educ. of N.Y., 287 F.3d 138, 146 (2d Cir. 2002) (citation omitted). This is "especially true" when thepro se complaint alleges civil rights violations. Id. A court should not dismiss a pro se complaint 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. Davis v. Goord, 320 F.3d 346, 352 (2d Cir. 2003) (citation omitted).
The defendant argues that the plaintiff has failed to state an Eighth Amendment claim. The Eighth Amendment prohibits cruel and unusual punishment. U.S. Const, amend. VIII; Webb v. Goord, 340 F.3d 105, 110 (2d Cir. 2003). Conditions of confinement can violate the Eighth Amendment.Farmer v. Brennan, 511 U.S. 825, 828 (1994). In such cases, a prisoner must prove both an objective element — that the condition was "sufficiently serious" — and a subjective element — that the defendant acted, or failed to act, with a "sufficiently culpable state of mind," i.e., with "deliberate indifference to inmate health or safety." Id. at 834 (citation omitted); Phelps, 308 F.3d at 185.
Regarding the "objective" requirement, prisoners may not be denied "the minimal civilized measure of life's necessities." Phelps, 308 F.3d at 185 (citation omitted). Prison officials may not expose prisoners to conditions that pose an "unreasonable risk of serious damage to their future health." Id. (citing Helling v. McKinney, 509 U.S. 25, 35 (1993)).
Concerning the subjective requirement, a prison official cannot be found liable "unless the official knows of and disregards an excessive risk to inmate health or safety." Farmer, 511 U.S. at 837; Phelps, 308 F.3d at 185-86. "This `deliberate indifference' element is equivalent to the familiar standard of `recklessness' as used in criminal law."Phelps, 308 F.3d at 186.
It is well recognized that the Eighth Amendment requires that prisoners receive some opportunity to exercise. Williams v. Greifinger, 97 F.3d 699, 704 (2d Cir. 1996); Anderson v. Coughlin, 757 F.2d 33, 35 (2d Cir. 1985). Restrictions on exercise are limited to "unusual circumstances" or circumstances in which exercise is "impossible" because of disciplinary concerns. Greifinger, 97 F.3d at 704.
The defendant contends that the complaint fails to state a claim because the plaintiff has only alleged an isolated incident. The plaintiff does allege in his amended complaint that other non-playing inmates were similarly injured. Even if the injury to the plaintiff were the sole injury alleged to have occurred as a consequence of the conditions that the plaintiff describes, that would be sufficient. The plaintiff may be able to show that the only space Green Haven provides for multiple forms of recreation is in an unreasonably confined space such that an unreasonable risk of serious harm to the health and safety of inmates exists.
Defendant argues that Slacks has not sufficiently alleged that Grenier knew of and disregarded a substantial risk of harm. This argument also fails. Again, there is no heightened pleading requirement for a Section 1983 claim. By alleging that Grenier knew of the dangerous condition, Slacks has sufficiently pleaded the subjective element of an Eighth Amendment violation. See Phelps, 308 F.3d at 186. There is no requirement that plaintiff "supplement his pleading with additional facts that support his allegations of knowledge either directly or by inference."Id. at 186-87. Nonetheless, the plaintiff has also alleged in his amended complaint that Grenier has personally observed the playing conditions in the recreational area. The defendant points out that prison officials sought to minimize the risk of injury by using `limited flight' softballs. That action does not provide a ground to dismiss the complaint. Whether prison officials took reasonable measures to ensure the safety of the inmates must be resolved at a later stage of this litigation.
In the investigative report of the accident attached to the plaintiff's application for counsel filed on March 7, 2003, the investigator indicates that
[W]ith all of the activity going on in the [recreational area] such as inmates watching all 3 T.V.'s, inmate spectators and inmates taking shower [sic] it is highly probable someone will be accidently struck by a thrown or batted softball.
This observation by the investigating officer combined with the fact that prison officials made an abortive attempt — through the use of limited flight balls — to address the precise type of accident experienced by Slacks is evidence that prison officials were aware of a risk of harm.
Defendant argues that plaintiff has not adequately alleged his personal involvement in the constitutional violation. It is well settled that "personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983." Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir. 2003) (citation omitted). The liability of a supervisor under Section 1983 can be shown in one or more of the following ways:
(1) actual direct participation in the constitutional violation, (2) failure to remedy a wrong after being informed through a report or appeal, (3) creation of a policy or custom that sanctioned conduct amounting to a constitutional violation, or allowing such a policy or custom to continue, (4) grossly negligent supervision of subordinates who committed a violation, or (5) failure to act on information indicating that unconstitutional acts were occurring.Id. at 145.
Defendant's argument regarding personal involvement fails for the same reasons that defendant's argument regarding the subjective element of the Eighth Amendment claim fails. Under Rule 8, and liberally construing his pleadings, Slacks has adequately alleged the defendant's personal involvement in the constitutional violation.
Grenier argues that he is entitled to qualified immunity. The doctrine of qualified immunity protects public officials from liability for damages in civil lawsuits "if their actions were objectively reasonable, as evaluated in the context of legal rules that were `clearly established' at the time." Poe v. Leonard, 282 F.3d 123, 132 (2d Cir. 2002) (citation omitted). Before reaching the issue of whether an official is entitled to qualified immunity, however, it is ordinarily appropriate to decide whether the alleged conduct would constitute a violation of constitutional rights. Saucier v. Katz, 533 U.S. 194, 201 (2001); Poe, 282 F.3d at 132.
In deciding whether the alleged conduct was a violation of law that was clearly established at the time of the conduct, the contours of the legal right must have been "sufficiently clear" so that a reasonable official would have understood that what he did was a violation of that right.Anderson v. Creighton, 483 U.S. 635, 640 (1987); African Trade Info. Ctr., Inc. v. Abromaitis, 294 F.3d 355, 360 (2d Cir. 2002). "This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in the light of pre-existing law the unlawfulness must be apparent." Anderson, 483 U.S. at 640 (citation omitted); see also Poe, 282 F.3d at 135. In other words, the issue is whether the state of the law at the time of the alleged violation gave the defendant "fair warning" that his conduct was unconstitutional. Hope v. Pelver, 536 U.S. 730, 741 (2002). The existence of the right is clearly established when it is supported by the decisional law of the Supreme Court or the applicable circuit court.Abromaitis, 294 F.3d at 361.
Even if an official's conduct violated clearly established law, an official will still be entitled to qualified immunity if it was objectively reasonable for the official to believe that his actions did not violate the law. Anderson, 483 U.S. at 641; Kent v. Katz, 312 F.3d 568, 573 (2d Cir. 2002). The objective reasonableness test is met if "officers of reasonable competence could disagree" on the legality of the defendant's actions. Malley v. Briggs, 475 U.S. 335, 341 (1986); Kent. 312 F.3d at 573.
At least at this stage of the litigation, Grenier is not entitled to qualified immunity. As described earlier, the plaintiff has alleged conduct that might constitute a violation of a constitutional right. Second, the law requiring that prisoners be afforded an opportunity to exercise and that prison officials not place inmates in conditions that pose a substantial risk of serious harm was clearly established at the time of the plaintiff's injury. See Helling, 509 U.S. at 35; Phelps, 308 F.3d at 185; Greifinger, 97 F.3d at 704.
It cannot be determined at this juncture whether Grenier acted in an objectively reasonable manner under the circumstances. Defendant's argument that he "relied upon his security staff" to take reasonable measures, such as the use of low flight softballs, to ensure the safety of inmates may prove to be successful, but Slacks is entitled to discovery to test that proposition.
Finally, Slacks' claim for injunctive relief must be dismissed. A prisoner's transfer to a different correctional facility generally moots his request for injunctive relief against employees of the transferor facility. See Thompson v. Carter, 284 F.3d 411, 415 (2d Cir. 2002); Prins v. Coughlin, 76 F.3d 504, 506 (2d Cir. 1996) (per curiam). This is because "an actual controversy must be extant at all stages of the case, not just at the time the complaint is filed." Carter, 284 F.3d at 415 (citation omitted). Slacks has been transferred from Green Haven. He is currently incarcerated in the Elmira Correctional Facility. His claim for injunctive relief is therefore dismissed.
CONCLUSION
For the reasons stated, the defendant's motion to dismiss is granted in part. The plaintiff's claim for injunctive relief is dismissed. Having determined that Slacks has a potentially meritorious claim, the plaintiff's application for the appointment of counsel is granted.
SO ORDERED.