Opinion
Civil Action No. 03-CV-0787 (NAM/DEP).
August 29, 2005
PETER WHEELER, Pro Se, for Plaintiff.
HON. ELIOT SPITZER, Office of the Attorney General, MARIA MORAN, ESQ., Assistant Attorney General, Syracuse, NY, for Defendants.
REPORT AND RECOMMENDATION
Plaintiff Peter Wheeler, a New York state prison inmate who is proceeding pro se and in forma pauperis, has commenced this civil rights action pursuant to 42 U.S.C. § 1983, alleging deprivation of his constitutional rights by the Commissioner of the New York State Department of Correctional Services ("DOCS") and two other DOCS employees. In his complaint, plaintiff seeks to hold the defendants accountable for their failure to protect him from other inmates, and additionally alleges that he experienced retaliatory treatment after voicing concerns regarding his safety.
Currently pending before the court is a motion by the defendants seeking the entry of summary judgment dismissing plaintiff's complaint on several grounds, including 1) failure to exhaust available administrative remedies before commencing suit; 2) insufficiency of plaintiff's allegations and proof regarding the failure of prison officials to protect him; 3) the lack of a showing of adverse action taken in retaliation for plaintiff's complaints; and 4) in the case of defendant Goord, on the basis of the absence of any showing of his personal involvement in the violation alleged. Because it appears from the record now before the court, construed in a light most favorable to him, that plaintiff may have been misled by prison officials regarding the course of action to take in pursuing a grievance regarding his claims, I recommend against dismissal of plaintiff's complaint on the basis of failure to exhaust. Addressing the merits, I find that the record now before the court discloses the existence of a genuine, triable issue of material fact, limited to whether on January 13, 2003 defendants failed to protect the plaintiff from an attack by a fellow inmate, and therefore recommend that defendants' motion be denied. On the question of personal involvement, while issues of fact may exist surrounding whether Commissioner Goord was actually aware of plaintiff's complaints, there is no basis to hold him personally accountable, since an investigation regarding plaintiff's allegations was conducted by his office, resulting in a finding that no constitutional deprivation had occurred. Accordingly, I also recommend dismissal of plaintiff's amended complaint as against Commissioner Goord based upon the lack of his personal involvement in the constitutional violations alleged.
In their motion defendants also claim entitlement to qualified immunity. In light of my recommendation on the merits, I have not separately addressed the qualified immunity issue. Saucier v. Katz, 533 U.S. 194, 121 S. Ct. 2151 (2001).
I. BACKGROUND
Plaintiff, who has been in the custody of the DOCS and assigned to various prison facilities since October 18, 1995, was transferred in May, 2002 into the Franklin Correctional Facility ("Franklin"), where most of the events recited in his complaint occurred, and remained there until February 7, 2003, when he was transferred to another prison. Moran Aff. (Dkt. No. 45) Exh. A. Central to plaintiff's claims is an incident which occurred at Franklin on January 13, 2003, involving the plaintiff and another inmate. As will be seen, the parties' versions of the relevant events are significantly at odds.
According to Wheeler, on that date he was attacked by an inmate after taking a shower, and while in route back to his cube. Amended Complaint (Dkt. No. 10) ¶ 12. Plaintiff maintains that the other inmate attacked him with a can secreted in a sock, and that despite Wheeler's cries for help defendant G. Dupra, a corrections officer who at the time was smoking a cigarette outside of the dormitory, failed to intercede on his behalf. Amended Complaint (Dkt. No. 10) ¶ 12. Plaintiff asserts that as a result of the incident he suffered injuries to his mouth, requiring medical treatment. Id. ¶ 17.
Plaintiff's amended complaint, though not formally verified, has been considered as the equivalent of an affidavit for purposes of this motion in view of his pro se status. See Franco v. Kelly, 854 F.2d 584, 587 (2d Cir. 1998) (citations omitted); Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995).
The affidavits and exhibits supplied by the defendants in support of their motion recount a very different version of the January 13, 2003 incident. According to the defendants, plaintiff and the other inmate involved were observed by defendant Dupra, who at the time was making rounds in the I-2 dormitory recreation area, engaged in a fist fight. Dupra Aff. (Dkt. No. 45) ¶ 3. Dupra ordered the two inmates to stop fighting and telephoned Corrections Sergeant Frank Quimby, also a defendant in the case, to report the incident and request assistance. Id. ¶¶ 3-5. After making the call defendant Dupra observed plaintiff run into the other inmate's cube, "swinging a sock with a can in it", and hitting the inmate in the head. Id. ¶ 6. After defendant Dupra ordered the plaintiff to stop, Wheeler tried to once again hit the inmate. Id. When the inmate took the sock away from the plaintiff, Wheeler left but returned into the cube with another can, threatening to throw it at the prisoner. Id.
As a result of the incident, plaintiff was medically treated at the prison facility and placed in confinement within the Franklin Special Housing Unit ("SHU"). Quimby Aff. (Dkt. No. 45) ¶ 6. A misbehavior report was subsequently generated on January 13, 2003 by defendant Dupra, charging Wheeler with assaulting another inmate (rule 100.10), engaging in a fight (rule 100.13), creating a disturbance (rule 104.13), failure to obey a direct order (rule 106.10), and possession of an item classified as a weapon (rule 113.10). Moran Aff. (Dkt. No. 45) Exh. F. Following a Tier III disciplinary hearing, held on or about January 24, 2003, plaintiff was found guilty on all or most of the disciplinary charges, resulting in an imposition of seven months of disciplinary SHU confinement, with a corresponding deprivation of recreation, package, commissary, and telephone privileges, and a nine-month loss of good time credits., Moran Aff. (Dkt. No. 45) Exh. G. In addition, plaintiff was prosecuted criminally for promoting prison contraband, resulting in a guilty plea and corresponding conviction of attempted promotion of prison contraband and a sentence to an additional, indeterminate term of imprisonment of between one and one half and three years. Moran Aff. (Dkt. No. 45) Exh. H.
The DOCS conducts three types of inmate disciplinary hearings. Tier I hearings address the least serious infractions, and can result in minor punishments such as the loss of recreation privileges. Tier II hearings involve more serious infractions, and can result in penalties which include confinement for a period of time in the Special Housing Unit (SHU). Tier III hearings concern the most serious violations, and could result in unlimited SHU confinement and the loss of "good time" credits. See Hynes v. Squillace, 143 F.3d 653, 655 (2d Cir.), cert. denied, 525 U.S. 907, 119 S. Ct. 246 (1998).
That hearing determination was affirmed, on appeal, by Donald Selsky, DOCS Director of Special Housing/Inmate Disciplinary Program, on or about March 27, 2003. Moran Aff. (Dkt. No. 45) Exh. G.
Plaintiff's claims in this action stem principally from his contention that defendants failed to adequately protect him, despite requests for intervention. The parties also disagree regarding the events forming the basis for this claim.
Plaintiff asserts that while at Franklin he informed DOCS officials, including Commissioner Goord, on a number of occasions that he feared for his personal health and safety, attributing his concerns to the nature of his underlying conviction. See, e.g., Amended Complaint (Dkt. No. 10) ¶¶ 8-10. Plaintiff maintains that those complaints were disregarded, and intimates that defendant Dupra chose to ignore his fellow inmate's attack on January 13, 2003. Amended Complaint (Dkt. No. 10) ¶ 12.
Plaintiff reports that his incarceration stems from a conviction for attempted rape. Amended Complaint (Dkt. No. 10) ¶ 8.
Once again, defendants' submissions reveal an extremely different situation. Though it appears that protective custody for the plaintiff was discussed with prison officials at Franklin on several occasions, literally from the outset of his confinement there, plaintiff opted against such an arrangement, signing written protective custody waiver forms on June 7, 2002, July 15, 2002, August 1, 2002, and August 12, 2002. Moran Aff. (Dkt. No. 45) Exh. B. According to defendants' submissions, the matter of protective custody was once again raised by the plaintiff on December 19, 2002, when Wheeler wrote to Commissioner Goord reciting his experiences while at Franklin and several other facilities, and advising of his receipt of death threat notes, stating "I wish to be place [sic] into protective custody." Moran Aff. (Dkt. No. 45) Exh. C. Plaintiff's letter was received in the Commissioner's office on or about December 26, 2002. Id. Plaintiff's letter to Commissioner Goord generated a response dated January 9, 2003 from Deputy DOCS Commissioner Lucien J. Leclaire, Jr., which letter was copied to Acting Franklin Superintendent Sears. Moran Aff. (Dkt. No. 45) Exh. C. That communication makes reference to discussions by DOCS staff members with the plaintiff concerning his facility status and Wheeler's indication that he no longer requested protective custody status. Id. Significantly, the letter pointedly advised the plaintiff that in the event of further concerns regarding his safety he should communicate directly with Deputy Superintendent for Security Rock. Id.
Plaintiff followed his communication to Commissioner Goord with a letter to Franklin Deputy Superintendent of Administration Sears, who appears at the time to have been the acting superintendent at the facility. Quimby Aff. (Dkt. No. 45) Exh. 1; see also Defendants' Local Rule 7.1(a)(3) Statement (Dkt. No. 45) ¶ 7. In that letter, plaintiff seemingly requested protective custody based upon death threats received by him. See Quimby Aff. (Dkt. No. 45) Exh. 1.
In apparent response to those letters defendant Quimby, a corrections sergeant, interviewed the plaintiff on December 26, 2002. Quimby Aff. (Dkt. No. 45) ¶ 2. During that interview, Wheeler advised Quimby that he did not wish to be placed in protective custody, and signed a protective custody waiver form to that effect, dated December 26, 2002. Id. ¶ 3, Exh. 2. According to the defendants, at no time between December 26, 2002 and the January 13, 2003 incident did Wheeler communicate further with either Sergeant Quimby or Corrections Officer Dupra requesting protective custody. Quimby Aff. (Dkt. No. 45) ¶ 4; Dupra Aff. (Dkt. No. 45) ¶ 9.
It appears that plaintiff signed a protective custody waiver form on January 13, 2003, following his fight with a fellow inmate. See Moran Aff. (Dkt. No. 45) Exh. E. There is no explanation given by the defendants, however, regarding the circumstances under which that waiver form was signed.
II. PROCEDURAL HISTORY
Plaintiff commenced this action on June 26, 2003, Dkt. No. 1, later amending his complaint, at the direction of the court, see Dkt. No. 9, on July 23, 2003. Dkt. No. 10. Named as defendants in plaintiff's amended complaint are Commissioner Goord, Corrections Sergeant Quimby, and Corrections Officer Dupra. Id. In his complaint, as amended, Wheeler alleges that by their failure to protect him and their retaliatory conduct, defendants violated his constitutional rights, and seeks recovery of $300,000 in damages. Dkt. No. 10.
Plaintiff's complaint also makes reference to "serious medical problems which are not being treated, or at last [sic] not being treated properly[.]" Amended Complaint (Dkt. No. 10) ¶ 16. Because neither plaintiff's amended complaint nor his submissions in opposition to defendants' motion provide specifics, and his amended complaint specifically announces his intention to commence a separate action alleging deliberate indifference to his serious medical needs, I have not construed the amended complaint in this action as alleging a deliberate indifference cause of action.
Following the joinder of issue by defendants' filing of an answer on November 24, 2003, Dkt. No. 29, defendants moved on December 23, 2004 for the entry of summary judgment dismissing plaintiff's complaint in its entirety. Dkt. No. 45. In their motion, defendants argue that 1) plaintiff failed to satisfy his administrative remedy exhaustion requirement before filing this action; 2) plaintiff's claims of failure to protect and retaliation are legally deficient on the merits; 3) defendant Goord is entitled to dismissal, based upon the lack of his personal involvement in the constitutional violations alleged; and 4) in any event, the defendants are entitled to qualified immunity. Id.
On January 19, 2005, plaintiff filed a response in opposition to defendants' motion for summary judgment. Dkt. No. 47. Wheeler's opposition asserts there are genuine issues of material fact precluding the entry of summary judgment, including both with regard to his efforts to pursue a grievance concerning defendants' failure to protect him, and on the merits. Dkt. No. 47.
Plaintiff's opposition papers do not specifically address the assertions of fact set forth in defendants' Local Rule 7.1(a)(3) Statement, nor do they articulate what triable issues of material fact, plaintiff contends, are in issue. While plaintiff's failure to comply with the important requirement of properly responding to defendants' Local Rule 7.1(a)(3) Statement could be regarded as his admission of each of the facts set forth therein, e.g., Elgamil v. Syracuse Univ., No. 99-CV-611, 2000 WL 1264122, at *1 (N.D.N.Y. Aug. 22, 2000) (McCurn, S.J.) (listing cases), in light of his pro se status I have chosen not to recommend this approach, and instead have reviewed the evidentiary materials now before the court to determine what, if any, facts are genuinely disputed. The Travelers Indemnity Ins. of Ill. v. Hunter Fan Co., No. 99 CIV 4863, 2002 WL 109567, at *7 (S.D.N.Y. Jan. 28, 2002) (citing Holtz v. Rockefeller Co., Inc., 258 F.3d 62, 73 (2d Cir. 2001)).
Defendants' motion, which is now ripe for determination, has been referred to me for the issuance of a report and recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B) and Northern District of New York Local Rule 72.3(c). See also Fed.R.Civ.P. 72(b).
III. DISCUSSION
A. Summary Judgment Standard
Summary judgment is governed by Rule 56 of the Federal Rules of Civil Procedure. Under that provision, summary judgment is warranted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits . . . show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S. Ct. 2505, 2509-10 (1986); Security Insurance Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 82-83 (2d Cir. 2004).
When summary judgment is sought, the moving party bears an initial burden of demonstrating that there is no genuine dispute of material fact to be decided with respect to any essential element of the claim in issue; the failure to meet this burden warrants denial of the motion. Anderson, 477 U.S. at 250 n. 4, 106 S. Ct. at 2511 n. 4; Security Insurance, 391 F.3d at 83. In the event this initial burden is met, the opposing party must show, through affidavits or otherwise, that there is a material issue of fact for trial. Fed.R.Civ.P. 56(e); Celotex, 477 U.S. at 324, 106 S. Ct. at 2553; Anderson, 477 U.S. at 250, 106 S. Ct. at 2511.
A material fact is genuinely in dispute "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248, 106 S. Ct. at 2510. Though pro se plaintiffs are entitled to special latitude when defending against summary judgment motions, they must establish more than merely "metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 1356 (1986); but see Vital v. Interfaith Med. Ctr., 168 F.3d 615, 620-21 (2d Cir. 1999) (noting obligation of court to consider whether pro se plaintiff understood nature of summary judgment process).
When deciding a summary judgment motion, a court must resolve any ambiguities, and draw all inferences from the facts, in a light most favorable to the nonmoving party. Wright v. Coughlin, 132 F.3d 133, 137-38 (2d Cir. 1998). Summary judgment is inappropriate where "review of the record reveals sufficient evidence for a rational trier of fact to find in the [non-movant's] favor." Treglia v. Town of Manlius, 313 F.3d 713, 719 (2d Cir. 2002) (citation omitted); see also Anderson, 477 U.S. at 250, 106 S. Ct. at 2511 (summary judgment is appropriate only when "there can be but one reasonable conclusion as to the verdict.").
B. Plaintiff's Failure to Exhaust Administrative Remedies
In their motion defendants first argue that plaintiff's complaint is procedurally defective, in that its filing was not preceded by the interposition and pursuit to completion of an internal DOCS grievance addressing the matters set forth in his complaint. Defendants assert that the failure to satisfy this procedural prerequisite warrants dismissal of plaintiff's complaint.
The Prison Litigation Reform Act of 1996 (" PLRA"), Pub.L. No. 104-134, 110 Stat. 1321 (1996), altered the inmate litigation landscape considerably, imposing several restrictions on the ability of prisoners to maintain federal civil rights actions. One such restriction introduced by the PLRA requires that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, 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 Supreme Court has held that the " PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 532, 122 S.Ct. 983, 992 (2002).
New York prison inmates are subject to an Inmate Grievance Program established by the DOCS, and recognized as an "available" remedy for purposes of the PLRA. See Mingues v. Nelson, No. 96 CV 5396, 2004 WL 324898, at *4 (S.D.N.Y. Feb. 20, 2004) (citing Mojias v. Johnson, 351 F.3d 606 (2003) and Snider v. Melindez, 199 F.3d 108, 112-13 (2d Cir. 1999)). The New York Inmate Grievance Program consists of a three-step review process. First, a written grievance is submitted to the Inmate Grievance Review Committee ("IGRC") within fourteen days of the incident. 7 N.Y.C.R.R. § 701.7(a). The IGRC, which is comprised of inmates and facility employees, then issues a determination regarding the grievance. 7 N.Y.C.R.R. § 701.7(a). If an appeal is filed, the superintendent of the facility next reviews the IGRC's determination and issues a decision. Id. § 701.7(b). The third level of the process affords the inmate the right to appeal the superintendent's ruling to the Central Office Review Committee ("CORC"), which makes the final administrative decision. Id. § 701.7(c). Only upon exhaustion of these three levels of review may a prisoner seek relief pursuant to section 1983 in federal court. Reyes v. Punzal, 206 F. Supp. 2d 431, 432 (W.D.N.Y. 2002) (citing, inter alia, Sulton v. Greiner, No. 00 Civ. 0727, 2000 WL 1809284, at *3 (S.D.N.Y. Dec. 11, 2000)).
The Inmate Grievance Program supervisor may waive the timeliness of the grievance submission due to "mitigating circumstances." 7 N.Y.C.R.R. § 701.7(a)(1).
In their motion defendants convincingly argue, based upon a search of inmate grievance records, that while plaintiff has filed and pursued to the CORC five separate grievances, complaining of a variety of matters, there is no record of any CORC appeal pertaining to a grievance addressing the failure of prison officials at Franklin to adequately protect him. Eagen Aff. (Dkt. No. 45) ¶ 4, Exh. A. Ordinarily, such circumstances would justify a dismissal for failure to satisfy the PLRA's exhaustion requirement. As the Second Circuit has noted, however, under certain, limited circumstances an inmate may be relieved of his or her exhaustion requirement under the PLRA. Hemphill v. New York, 380 F.3d 680, 686-91 (2d Cir. 2004); Giano v. Goord, 380 F.3d 670, 676-80 (2d Cir. 2004). In this instance plaintiff seemingly seeks to invoke those cases which under such narrow circumstances find that the PLRA's exhaustion requirement should not apply to bar a section 1983 claim.
Plaintiff's amended complaint is not particularly enlightening on the issue of exhaustion, failing to address his efforts to satisfy that critical prerequisite to commencement of suit. Plaintiff's original complaint, however, asserts — in response to a question regarding exhaustion on the form utilized by the plaintiff — that he was told by the grievance officer to write to Sergeant Coffee, but that after doing so he received no response to that letter. Complaint (Dkt. No. 1) ¶ 4(c). Neither plaintiff's original complaint nor more recent filings reveal any effort on his part to pursue the matter to the CORC.
The governing regulatory scheme provides that if an inmate who has filed a grievance does not receive a response from the IGRC within a prescribed period of time and the IGRC fails to seek an extension of that time period from the grievant, the inmate may appeal to the next level without awaiting administrative action. Plaintiff's failure to pursue the matter to the CORC after not having received a response to his grievance could be deemed as fatal to his claims in this action under the PLRA. Waters v. Schneider, No. 01 Civ. 5217, 2002 U.S. Dist. LEXIS 7166 (S.D.N.Y. Apr. 17, 2002).
In this instance, however, plaintiff's failure to take that measure could be attributed to his reliance upon the alleged representation to him by prison officials that to grieve the matter he should write to Sergeant Coffee. Under such circumstances, a question is presented as to whether administrative remedies were "available" to the plaintiff. See Hemphill v. State of New York, 380 F.3d 680, 686 (2d Cir. 2004); see also Jeffers v. Goord, No. 9:99 CV 0335, 2005 WL 928628, at *4-*5 (N.D.N.Y. Apr. 4, 2005) (Lowe, M.J.); Heath v. Saddlemyer, No. 9:96-CV-1998, 2002 WL 31242204, at *4-*5 (N.D.N.Y. Oct. 7, 2002) (Scullin, C.J.) (where letters were written by plaintiff to various prison officials concerning the matters asserted in his complaint, resulting in an investigation and plaintiff being told that he had followed the "correct procedure" for pursuing a grievance, complaint was not subject to dismissal under the PLRA for failure to exhaust).
Giving plaintiff the benefit of every doubt in resolving all ambiguities in his favor, I am unable to say as a matter of law that he failed to exhaust administrative remedies which were available to him. Accordingly, I recommend that defendants' request for dismissal of plaintiff's complaint on this basis be denied, without prejudice.
C. Merits Of Plaintiff's Claims 42 U.S.C. § 1983 empowers a court to grant relief when federally protected rights, including those under the Constitution, have been violated under color of state law. 42 U.S.C. § 1983; City of Oklahoma City v. Tuttle, 471 U.S. 808, 816, 105 S. Ct. 2427, 2432 (1985) (quoting section 1983). Section 1983 does not create or establish substantive rights, however; instead, that section merely provides a vehicle for enforcement of federal statutory and constitutional rights. Id. In this instance, plaintiff claims that defendants violated his constitutional rights under the Eighth and Fourteenth Amendments by their failure to protect him from an attack by another inmate.
1. Failure to Protect — Eighth Amendment
Unquestionably, under the Eighth Amendment prison officials are required to take reasonable measures to guarantee the safety of inmates; this duty includes within it an obligation to protect prisoners from harm caused by fellow inmates. Farmer v. Brennan, 511 U.S. 825, 833-34, 114 S. Ct. 1970, 1976-77 (1994) (citations omitted); see also Matthews v. Armitage, 36 F. Supp.2d 121, 124 (N.D.N.Y. 1999) (Homer, M.J.) (citing, inter alia, Farmer). When examining a failure to protect claim under the Eighth Amendment, a court must determine whether the inmate has demonstrated that 1) he or she was incarcerated under conditions posing a substantial risk of serious harm, and that 2) prison officials exhibited deliberate indifference to the inmate's plight. Farmer, 511 U.S. at 834, 837, 114 S. Ct. at 1977, 1979; Matthews, 36 F. Supp.2d at 124-25; Coronado v. Lefevre, 886 F. Supp. 220, 224 (N.D.N.Y. 1995) (Scullin, J.). As can be seen, this analysis entails both an objective and subjective inquiry.
a. Objective Test
In objective terms, a plaintiff must prove that an alleged deprivation is "sufficiently serious" such that it denied him or her the "minimal civilized measure of life's necessities." Dawes v. Walker, 239 F.3d 489, 493-94 (2nd Cir. 2001) (internal quotations and citations omitted), overruled on other grounds, Swierkiewicz v. Sorema N.A., 534 U.S. 506, 122 S.Ct 992 (2002). Specifically, as noted above, in situations where an inmate's safety is at issue, that person must demonstrate that he or she was incarcerated under conditions posing a substantial risk of serious harm. Farmer, 511 U.S. at 834, 837, 114 S. Ct. at 1977, 1979; Dawes, 239 F.3d at 493; Matthews, 36 F.Supp.2d at 124-25.
Based upon the record now before the court, resolving all the ambiguities and drawing all inferences in a light most favorable to the plaintiff, I am unable to say that plaintiff was not incarcerated under conditions posing a substantial risk of serious harm. Plaintiff's complaint recounts earlier stabbings, albeit at other facilities, as well as his claim to have received death threats, attributed by him as being due to the nature of his conviction. Defendants are therefore not entitled to summary judgment based upon plaintiff's alleged failure to satisfy the objective prong of the applicable test.
In his complaint, plaintiff alleges that this incident followed a stabbing which occurred at Great Meadow Correctional Facility in December of 1997, and another stabbing experienced on December 22, 2000 while at the Midstate Correctional Facility. Amended Complaint (Dkt. No. 10) ¶¶ 1, 18. Any claim for relief based upon the incident at Great Meadow would be precluded based upon the applicable three-year statute of limitations governing plaintiff's claims under 42 U.S.C. § 1983. Owens v. Okure, 488 U.S. 235, 249-51, 109 S. Ct. 573, 582 (1989). Moreover, there is no indication of involvement on the part of any of the three defendants in this action in the incidents at Great Meadow or Midstate. Accordingly, to the extent that plaintiff's complaint could be construed as complaining of those incidents, it is also subject to dismissal on the merits.
b. Subjective Test
Although Wheeler may be able to satisfy the objective prong of the Eighth Amendment inquiry, for the most part the evidence now before the court fails to satisfy the additional subjective state of mind requirement. To demonstrate that defendants were deliberately indifferent to his plight, Wheeler must show that prison officials actually knew of, but disregarded, an excessive risk to his health and safety — "the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer, 511 U.S. at 837, 114 S. Ct. at 1979; Matthews, 36 F.Supp.2d at 124-25.
Leaving aside the altercation on January 13, 2003, there is no evidence now before the court from which a reasonable factfinder could conclude awareness on the part of any of the three named defendants of a substantial risk of serious harm to plaintiff's health and safety, and their disregard of that risk. Commissioner Goord, assuming his receipt of plaintiff's December 19, 2002 letter, delegated the matter to a deputy commissioner who investigated and was apparently advised that plaintiff no longer requested protective custody. Plaintiff was advised of that finding and notified that in the event of a change of heart, he should communicate in writing to the deputy superintendent for security at the facility.
There is no evidence in the record to suggest that prior to January 13, 2003, Corrections Officer Dupra was aware of problems or safety concerns, and in fact he expressly disavows any such knowledge — without contradiction from the plaintiff. Dupra Aff. (Dkt. No. 45) ¶ 9. Similarly, Sergeant Quimby, who interviewed the plaintiff regarding his safety concerns, points out that on December 26, 2002 plaintiff executed a protective custody waiver, and that between then and January 13, 2003, the date of the incident involving Wheeler and his fellow inmate, Quimby had no further conversations with the plaintiff regarding his difficulties. Quimby Aff. (Dkt. No. 45) ¶¶ 3-4. Under these circumstances no reasonable factfinder could conclude that the three individual defendants were subjectively indifferent to a risk of harm to the plaintiff prior to the January 13, 2003 incident.
While the record now before the court falls short of establishing an overall failure by the defendants to protect Wheeler from harm, the conflicting accounts regarding the January 13, 2003 altercation preclude summary dismissal of plaintiff's claims as a matter of law. On that occasion, according to the plaintiff, defendant Dupra ignored Wheeler's cries for help upon being attacked by a fellow inmate. However skeptical one may be about the likelihood of plaintiff establishing his version of the relevant events at trial, based upon his subsequent disciplinary and criminal convictions growing out of the incident, when the facts are viewed in a light most favorable to him, a reasonable factfinder could conclude that defendants, and in particular defendant Dupra, failed to protect the plaintiff on that occasion, thus giving rise to a constitutional violation. Candelaria v. Coughlin, No. 91 Civ. 2978, 1996 WL 88555, at *9-*10 (S.D.N.Y. Mar. 1, 1996) (citing Morales v. New York State Dept. of Corrs., 842 F.2d 27 (2d Cir. 1988)).
2. Failure to Protect — Fourteenth Amendment
Claims involving the alleged failure of prison officials to protect an inmate from harm are also subject to review under the Fourteenth Amendment's substantive due process provision. Though the requisite mental state for establishing a Fourteenth Amendment failure to protect claim is somewhat unclear, it is at least apparent that to be legally cognizable under that provision, the actions alleged on the part of a defendant must transcend mere negligence. Davidson v. Cannon, 474 U.S. 344, 347-48, 106 S. Ct. 668, 670 (1986) (lack of due care simply does not approach the sort of abusive government conduct that the Due Process Clause was designed to prevent); Daniels v. Williams, 474 U.S. 327, 328, 106 S. Ct. 662, 663 (1986) (same); Morales v. New York State Dep't of Corrs., 842 F.2d 27, 30 (2nd Cir. 1988) (section 1983 does not provide cause of action for negligent failure of prison officials to protect an inmate from injury); Abdul-Matiyn v. New York State Dept of Corr. Servs., 871 F.Supp. 1542, 1546-47 (N.D.N.Y. 1994) (Chin, J.) (citing Morales).
For the reasons already articulated, except as to the January 13, 2003 incident, plaintiff has failed to provide evidence suggesting that defendants' conduct exceeded that of mere negligence. Accordingly, his failure to protect claim also fails to reach the Fourteenth Amendment threshold and is subject to dismissal, other than as related to the January 13, 2003 fight.
3. Retaliation
Generously construed, plaintiff's complaint also asserts a claim of unlawful retaliation. Plaintiff contends that he engaged in several forms of protected activity, including the filing of grievances at Franklin, and that in response to those complaints defendants did nothing, instead placing him in SHU confinement.
In order to state a prima facie claim under section 1983 for retaliatory conduct, a plaintiff must advance non-conclusory allegations establishing that 1) the conduct at issue was protected; 2) the defendants took adverse action against the plaintiff; and 3) there was a causal connection between the protected activity and the adverse action — in other words, that the protected conduct was a "substantial or motivating factor" in the prison officials' decision to take action against the plaintiff. Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576 (1977); Dawes v. Walker, 239 F.3d 489, 492 (2d Cir. 2001). If the plaintiff carries this burden, the defendants must show by a preponderance of the evidence that they would have taken action against the plaintiff "even in the absence of the protected conduct." Mount Healthy, 429 U.S. at 287, 97 S.Ct. at 576. If taken for both proper and improper reasons, then, state action may be upheld if the action would have been taken based on the proper reasons alone. Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996) (citations omitted).
The record now before the court fails to support plaintiff's claim of unlawful retaliation. Undeniably — and defendants do not argue otherwise — plaintiff's alleged filing of grievances and writing of letters to prison authorities, including to Commissioner Goord, constituted protected activity within the ambit of First Amendment retaliation jurisprudence. Graham v. Henderson, 89 F.3d 75, 80 (2d Cir. 1996). And, while defendants argue otherwise, it does appear that liberally construed, plaintiff's complaint alleges a corresponding adverse action, in the form of his disciplinary SHU confinement. What is lacking from plaintiff's complaint and the record before the court, however, is any evidence whatsoever of a nexus linking the protected activity with that adverse action. Indeed, the record before the court convincingly establishes that plaintiff's SHU confinement arose from the January 13, 2003 altercation and the resulting disciplinary hearing. The record is wholly devoid of any evidence which would suggest or give rise to an inference that plaintiff's SHU confinement was motivated by his lodging of complaints against prison officials for their failure to protect him or based upon other protected conduct. Plaintiff's retaliation claim is therefore legally deficient, and subject to dismissal as a matter of law.
D. Personal Involvement
Plaintiff's claims against Commissioner Goord are based principally on his supervisory position as the Commissioner of the DOCS. In their motion, defendants argue that plaintiff's allegations against defendant Goord, which are limited to the assertion that he wrote letters to the Commissioner regarding the incident, are insufficient to establish his personal involvement and, thus liability for, the constitutional violations alleged.
A supervisor cannot be liable for damages under section 1983 solely by virtue of being a supervisor — there is no respondeat superior liability under section 1983. Richardson v. Goord, 347 F.3d 431, 435 (2d Cir. 2003); Wright, 21 F.3d at 501. A supervisory official can, however, be liable in one of several ways: 1) the supervisor may have directly participated in the challenged conduct; 2) the supervisor, after learning of the violation through a report or appeal, may have failed to remedy the wrong; 3) the supervisor may have created or allowed to continue a policy or custom under which unconstitutional practices occurred; 4) the supervisor may have been grossly negligent in managing the subordinates who caused the unlawful event; or 5) the supervisor may have failed to act on information indicating that unconstitutional acts were occurring. Richardson, 347 F.3d at 435; Wright, 21 F.3d at 501; Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir. 1986).
Although it is unclear from the record whether Commissioner Goord personally viewed any of the letters sent by the plaintiff, including the December 19, 2002 letter referenced in plaintiff's papers, the letters were apparently routed to the Commissioner's subordinates for review, and an investigation was undertaken to address plaintiff's allegations. Under these circumstances there is no basis to find Commissioner Goord personally accountable for any violation of plaintiff's constitutional rights. See Reid v. Artus, 984 F.Supp. 191, 195 (S.D.N.Y. 1997) (no basis for supervisory liability when defendant assigned an officer to investigate complaint and informed plaintiff that investigation had been commenced); Gonzalez v. Coughlin, No. 92 CIV. 1263,1996 WL 496994, at *3 (S.D.N.Y. Sept. 3, 1996) (no personal involvement when defendant delegated investigation, received follow-up report, and closed the investigation). Accordingly, I recommend dismissal of plaintiff's claims against defendant Goord on the independent basis of his lack of personal involvement in the conduct forming the basis of the constitutional violation alleged.
IV. SUMMARY AND RECOMMENDATION
The record now before the court reveals that the plaintiff failed to file and pursue a grievance regarding the matters now complained of through to the CORC. Because this failure, when the record is interpreted in a light most favorable to the plaintiff, could be attributed to the actions of prison officials in advising the plaintiff that he should write to Sergeant Coffee regarding his grievance, I recommend against dismissal of plaintiff's claims for failure to satisfy the PLRA's administrative exhaustion requirement, without prejudice. Turning to the merits of plaintiff's complaint, I find that because it fails to allege, and the proof now before the court does not establish, the requisite degree of awareness on defendants' part of the danger to the plaintiff and their failure to protect him from a perceived danger, other than as relates to his claim that defendants failed to protect him on January 13, 2003 from an attack by a fellow inmate, plaintiff's claims asserted under the Eighth and Fourteenth Amendments are subject to dismissal as a matter of law, except as they relate to that incident. I also recommend dismissal of plaintiff's claim of retaliation, based upon the lack of a showing of any connection between his complaints and subsequent disciplinary SHU confinement, and further recommend dismissal of his claims against defendant Goord on the additional, independent ground of the lack of proof of his personal involvement in the constitutional violations alleged.
Based upon the foregoing it is hereby
RECOMMENDED that defendants' motion for summary judgment (Dkt. No. 45) be GRANTED in part, including with respect to all claims against defendant Goord, and that plaintiff's complaint be DISMISSED, except to the extent it alleges the failure of defendants Quimby and Dupra to protect the plaintiff by coming to his aid following an attack on January 13, 2003 by a fellow inmate.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court within TEN days. FAILURE TO SO OBJECT TO THIS REPORT WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993).
It is hereby ORDERED that the clerk of the court serve a copy of this Report and Recommendation upon the parties by regular mail.