Opinion
Civil Action 5:18-cv-204
07-01-2024
David “Cammie” Cameron, Plaintiff, v. Lisa Menard, Mark Potanas, and Joshua Rutherford, Defendants.
REPORT AND RECOMMENDATION (DOCS. 71, 78)
Kevin J. Doyle, United States Magistrate Judge
This is a civil rights action brought by Plaintiff David “Cammie” Cameron, a transgender female incarcerated during the relevant period at the Southern State Correctional Facility (SSCF). Cameron alleges that Defendants Lisa Menard, the former Commissioner of the Vermont Department of Corrections (DOC); Mark Potanas, the former Superintendent of SSCF; and Joshua Rutherford, the former Security and Operations Supervisor at SSCF, ignored Cameron's request to be incarcerated with female inmates, instead housing her with male inmates and placing inmate Francis Lajoice in a cell next to hers, resulting in Lajoice's assault of Cameron. (Doc. 1.) The Court has dismissed several claims from Cameron's Complaint, leaving only a claim under 42 U.S.C. § 1983 against Defendants in their individual capacities for failing to protect Cameron from assault by another inmate in violation of the Eighth Amendment to the United States Constitution.
This Report and Recommendation addresses two Motions for Summary Judgment, one filed by Defendant Potanas (Doc. 71) and the other jointly filed by Defendants Menard and Rutherford (Doc. 78), each requesting that the Court dismiss Cameron's remaining claim against them. For the reasons explained below, I recommend granting both Motions and entering judgment in favor of Defendants.
Background
I. Factual History
The following facts are principally drawn from the parties' statements of undisputed material facts, the responses to those statements, and the documents referenced in those documents. (See Docs. 72, 73-1, 78-1, 79-1, 80-1, 81-1, 82-1.) Where there is a genuine dispute as to the facts, the Court draws all inferences in favor of Cameron as the nonmoving party. See Scott v. Harris, 550 U.S. 372, 380 (2007) (citing Fed.R.Civ.P. 56(c)); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
During parts of 2014 and 2015, Cameron was incarcerated at Marble Valley Regional Correctional Facility, serving a sentence for the crime of breaking and entering. In March 2015, Cameron signed a DOC “Gender Identification Preference Form,” in which she checked a box stating that she identified as transgender and “request[ed] no accommodations.” (Doc. 72-4 at 2.) While at Marble Valley, Cameron engaged in several activities-including drinking cooking wine, participating in sexualized behavior with another inmate, and expressing interest in two other inmates-resulting in the periodic loss of her eligibility for “good time” credit. Given that loss, and the resulting inability to participate in work camp, Cameron requested a transfer to a different prison.
Throughout this Report and Recommendation, the Court cites the CMECF page numbers of filings, with the exception that the Court cites the original transcript pages of deposition transcripts and the transcript of Cameron's statement to the Vermont State Police.
In May 2015, Cameron was transferred to SSCF, signing a DOC “Offender/Inmate Orientation to ADA” form, in which she checked a box stating that she “d[id] not request a reasonable accommodation.” (Doc. 72-5 at 2.) Despite this representation by Cameron, a multidisciplinary team at SSCF, including Defendants Rutherford and Potanas, decided to place Cameron in the Medical Unit of the prison, otherwise known as the “Charlie Unit,” in part for her own safety given her transgender identification. The Medical Unit was a two-tier general population living unit with single occupancy cells, each with a solid door and a window that inmates could open and close on their own. The Unit was primarily designed for inmates with medical issues and elderly inmates who were deemed a low or very low safety risk to staff or other inmates.
In September 2015, Cameron asked to be placed in general population at SSCF in order to be with inmates with whom she was friendly. Cameron filed a grievance regarding this issue, stating that SSCF was keeping her “in a single cell for [her] ‘safety'” and “separating [her] from any inmate that [she] befriend[ed].” (Doc. 78-10 at 2.) In accordance with DOC policy, the SSCF's multidisciplinary team decided not to move Cameron out of the Medical Unit, again partially out of concern for her safety given her transgender identification. Later that month, Potanas learned of a grievance Cameron filed regarding alleged harassment, “inappropriate comments,” and “disparaging remarks” by SSCF inmates and DOC personnel toward Cameron. (Doc. 78-12 at 2.) Potanas also learned that Cameron “wanted to go to a different facility” and “wanted her good time [credit] back.” (Id.) Potanas instructed Defendant Rutherford or Assistant Superintendent Micaela Hammond to investigate Cameron's grievance “ASAP.” (Id.) Although Rutherford does not recall that he began an investigation thereafter, he “believe[s] one was conducted.” (Doc. 78-5 at 81:3.)
On or around December 2, 2015, Cameron sent a letter to Defendant Commissioner Menard, explaining that she was being ridiculed and treated disrespectfully and unfairly by SSCF inmates and officers. She asked that her good time credit be restored. A few days later,Cameron sent another letter to Menard, this time requesting a move to the “Chittenden [Regional] Correctional [F]acility,” an all-women facility, to permit her to be “housed according to [her] gender identification.” (Doc. 72-13 at 2.) Cameron's request was conditioned on “[her] good time [credit] . . . not . . . be[ing] given to [her] collectively.” (Id.) The letter states that Cameron “firmly believe[d] that this move would alleviate the major emotional difficulties that [she had] been enduring.” (Id.) Menard does not recall reading either of these letters.
This letter is undated but stamped “RECEIVED” by the Office of the Commissioner on December 10, 2015. (Doc. 72-13 at 2; see Doc. 78-4 at 40:23-41:2, 43:22-44:11.)
The parties have not submitted evidence showing that the Chittenden Regional Correctional Facility is an all-women's facility, but this appears to be an undisputed fact, as each party has stated this fact in various filings to the Court and Rutherford impliedly confirmed in his deposition. (See Doc. 78-1 at 6, ¶ 36; Doc. 78-5 at 89:10-22; Doc. 79 at 3-4, ¶ 15; Doc. 79-1 at 5, ¶ 10, at 12, ¶ 31, at 14-15, ¶ 39; Doc. 81 at 2, ¶ 6, at 5, ¶ 26; Doc. 81-1 at 3-4, ¶ 10.)
In approximately early December 2015, Lajoice asked to be moved off the first floor at SSCF for privacy reasons. Lajoice was moved to the cell next to Cameron on the second floor. Neither Cameron nor Lajoice had filed a grievance against the other prior to that move, and there was no indication that Lajoice had a problem with Cameron in particular or with people who identified as transgender in general. Rather, prior to this time period, Lajoice and Cameron had “talked and . . . got along,” and Lajoice would give Cameron “food and stuff like that.” (Doc. 78-17 at 13:4, 6.)
Cameron and Lajoice had two problematic interactions with each other prior to the altercation that is the subject of this lawsuit. First, Lajoice sexually propositioned Cameron. Although she had entertained similar proposals from other inmates, Cameron refused Lajoice's proposal and showed no sexual interest in Lajoice going forward. From then on, Cameron felt that Lajoice was rude to her. The second problematic incident occurred on December 21, 2015, the day of the assault. When Cameron was walking one way through a door and Lajoice was walking the other, Lajoice saw Cameron and “almost intentionally . . . hit [her] with the door,” but Cameron moved out of the way to avoid being struck. (Doc. 78-3 at 69:15-17; see id. at 62:13, 65-75.) Cameron turned around, swore at Lajoice, and called Lajoice an asshole. As a result of this interaction, Cameron was ordered back to the Medical Unit and locked into her cell for two hours.
Immediately after her two-hour lock-in period ended, Cameron exited her cell and went to Lajoice's adjacent cell to confront him about their altercation earlier that day and Lajoice's generally rude behavior toward Cameron. When Cameron was at the doorway of Lajoice's cell, she initiated a conversation with Lajoice, saying words to the effect of “what the fuck is your problem?” and “what's your deal?” (Doc 72-14 at 17:15-17.) Lajoice then raised his hands and said something like, “put your fucking hands up and come fight me.” (Id. at 17:2-3.) Cameron responded: “I'm not that stupid, I'm not going to walk in your cell.” (Id. at 3-4.) Lajoice began to beat Cameron, and Cameron charged at Lajoice, pushing him into his cell and scratching him with her fingernails. Cameron suffered severe injuries in the fight, while Lajoice suffered minor injuries. As a result of the fight, Cameron received a disciplinary report charge of “Major A-5 Fighting where bodily injury is attempted or carried out” (Doc. 72-19 at 2), but she agreed to a modified charge of “Major B4” violation (Doc. 72-16 at 2) and waived her right to appear at a disciplinary hearing, signing a form stating that she “admitt[ed] [her] guilt and/or admitt[ed] that a preponderance of the evidence support[ed] [her] being found guilty of the Major disciplinary infraction that [she] ha[d] been accused of” (id.). Cameron understood that the general nature of the disciplinary action taken against her was for “fighting with . . . Lajoice.” (Doc. 72-2 at 106:16-17.)
DOC Directive 410.01 defines a “Major B4” violation as “fighting where serious bodily injury was not carried out.” (Doc. 78-21 at 20.)
On December 23, 2015, two days after Cameron and Lajoice's fight, DOC Director of Classification Cullen Bullard responded to Cameron's letter requesting to be moved to an allfemale prison. Bullard advised that Cameron had been assessed appropriately for housing, and that she should follow the grievance process if she wanted the matter reviewed.
II. Procedural History
On December 3, 2018, Cameron filed the Complaint in this action, seeking compensatory and punitive damages, as well as attorney fees and litigation costs. (Doc. 1 at 9.) The Complaint alleges three claims under 42 U.S.C. § 1983 and the Eighth Amendment: failure to protect, inadequate training of correctional officers, and ineffective supervision of correctional officers. (Id. at 4-7.) In addition, the Complaint alleges negligence and false-imprisonment claims under state law. (Id. at 7-8.) In September 2019, the Court partially granted Defendants' Motions to Dismiss the Complaint (Docs. 3, 6), dismissing all claims other than the Eighth Amendment failure-to-protect claim against each Defendant individually. (See Docs. 18, 19.)
The failure-to-protect claim essentially alleges that, by housing Cameron with the male inmate population at SSCF and by placing Lajoice in a cell next to Cameron, Defendants knowingly disregarded the general risks that Cameron faced as a transgender female housed with male inmates at SSCF and disregarded the specific risk that Lajoice posed to Cameron. (Doc. 1 at 2-5.) According to the Complaint, Cameron endured ridicule, threats, and harassment at SSCF, including “being called, ‘David,' instead of her requested name, ‘Cammie,'” and “being subjected to constant sexual harassment, comments, demands, and threats by male inmates in the presence of [DOC] officers including Defendants Potanas and Rutherford.” (Id. at 3, ¶ 15.) The Complaint describes Lajoice's assault of Cameron on December 21, 2015, and states that, “[i]n the aftermath of the attack, Cameron was found lying on the ground with blood pouring from her nose and mouth, her right eye was swollen shut and purple, and she had several bumps and bruises on her forehead and temple areas.” (Id. ¶ 17 (internal quotation marks omitted).) Cameron claims in the Complaint that she was hospitalized after the attack for “multiple contusions to her forehead, right eye, cheek[,] and jaw[;] a fractured nose[;] major closed head injury[;] left cerebral hemorrhage[; and] left subdural hematoma and concussion.” (Id. ¶ 18.)
After the Court dismissed several claims from the Complaint in its September 2019 Order, the parties engaged in discovery, two discovery motions were filed, and the Court issued rulings on those motions in July 2021 and September 2022, respectively (Docs. 53, 66). On May 8, 2023, Defendant Potanas filed his Motion for Summary Judgment (Doc. 71); and on June 15, 2023, Defendants Menard and Rutherford filed their Motion for Summary Judgment (Doc. 78). Each Motion includes a separate Statement of Undisputed Facts (Docs. 72, 78-1) and an Exhibit List with attached exhibits (Docs. 72-1-72-19, 78-2-78-22).
Potanas argues that he is entitled to summary judgment because the undisputed facts demonstrate that: (1) he was not aware of an excessive risk to Cameron's safety, and even if he was, he did not consciously disregard that risk; (2) he was not personally involved in a constitutional deprivation; (3) he is protected by qualified immunity because he did not violate any clearly established right; (4) Cameron's own voluntary conduct was the proximate cause of the resulting harm to her; and (5) Cameron's claim is barred by the “favorable-termination rule” set forth in Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). (See Doc. 71.) Menard and Rutherford advance similar arguments in their Motion. (See Doc. 78.)
Cameron opposes each Motion for Summary Judgment, contending that genuine disputes of material fact preclude summary judgment. (Docs. 79, 81.) Cameron also argues that the assault “would never have happened” had Defendants followed DOC and PREA guidelines, which Cameron asserts are “specifically drafted to prevent the exact type of beating that occurred in th[is] case.” (Doc. 79 at 1; see also Doc. 81 at 1.) Cameron's opposition briefs include Responses to Defendants' Statements of Undisputed Facts (Docs. 79-1, 81-1) and Exhibit Lists with attached exhibits (Docs. 79-2-79-13, 81-2-81-11). Defendant Potanas and Defendants Menard and Rutherford have replied to Cameron's opposition briefs and responded to Cameron's response to Defendants' Statements of Undisputed Facts. (See Docs. 80, 80-1, 82, 82-1.)
Analysis
I. Legal Standards
A. Section 1983
Cameron brings this action under 42 U.S.C. § 1983, which provides a federal cause of action for damages against anyone who, acting under state law, deprives another of “any rights, privileges, or immunities secured by the Constitution and laws” of the United States. “The purpose of § 1983 is to deter state actors from using the badge of their authority to deprive individuals of their federally guaranteed rights and to provide relief to victims if such deterrence fails.” Wyatt v. Cole, 504 U.S. 158, 161 (1992). To succeed on a § 1983 claim, a plaintiff must establish that: “(1) the defendant acted under color of state law; and (2) as a result of the defendant's actions, the plaintiff suffered a denial of her federal statutory rights, or her constitutional rights or privileges.” Annis v. County of Westchester, 136 F.3d 239, 245 (2d Cir. 1998). “Section 1983 itself creates no substantive rights; it provides only a procedure for redress for the deprivation of rights established elsewhere.” Thomas v. Roach, 165 F.3d 137, 142 (2d Cir. 1999) (citing Okla. City v. Tuttle, 471 U.S. 808, 816 (1985)).
Cameron seeks redress for the alleged deprivation of her right under the Eighth Amendment of the United States Constitution “to reasonable safety and humane conditions of confinement.” (Doc. 1 at 4, ¶ 20.)
B. Summary Judgment
A motion for summary judgment should be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). An issue is “genuine” if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson, 477 U.S. at 248. A factual dispute is “material” if it might affect the outcome of the case under governing law. Id. Factual disputes that are “irrelevant or unnecessary” are not material and thus cannot preclude summary judgment. Id. If the moving party on a motion for summary judgment demonstrates that there are no genuine issues of material fact, the burden shifts to the nonmoving party, who must present “‘significantly probative supporting evidence' of a disputed fact.” Hamlett v. Srivastava, 496 F.Supp.2d 325, 328 (S.D.N.Y. 2007) (quoting Anderson, 477 U.S. at 249). Where the nonmoving party “‘fail[s] to come forth with evidence sufficient to permit a reasonable juror to return a verdict in his or her favor' on an essential element of a claim on which the [nonmoving party] bears the burden of proof,” the moving party is entitled to summary judgment. Jean-Laurent v. Wilkerson, 461 Fed.Appx. 18, 22 (2d Cir. 2012) (summary order) (quoting In re Omnicom Grp., Inc., Sec. Litig., 597 F.3d 501, 509 (2d Cir. 2010)).
In considering a motion for summary judgment, the court is “required to resolve all ambiguities and draw all factual inferences in favor of the nonmovant.” Robinson v. Concentra Health Servs., Inc., 781 F.3d 42, 44 (2d Cir. 2015) (internal quotation marks omitted); see SEC v. Sourlis, 851 F.3d 139, 144 (2d Cir. 2016) (“party against whom summary judgment is sought [must be] given the benefit of all permissible inferences and all credibility assessments”). But the nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Jeffreys v. City of New York, 426 F.3d 549, 554 (2d Cir. 2005) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)); see Anderson, 477 U.S. at 252 (“The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.”). The nonmoving party “cannot defeat summary judgment by relying on the allegations in his complaint, conclusory statements, or mere assertions that affidavits supporting the motion are not credible.” Hamlett, 496 F.Supp.2d at 328 (citing Gottlieb v. County of Orange, 84 F.3d 511, 518 (2d Cir. 1996)); see Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998) (“Conclusory allegations, conjecture, and speculation . . . are insufficient to create a genuine issue of fact.”).
The court's role in adjudicating a motion for summary judgment “is not to resolve disputed questions of fact but only to determine whether, as to any material issue, a genuine factual dispute exists.” Kaytor v. Elec. Boat Corp., 609 F.3d 537, 545 (2d Cir. 2010). “Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.” Proctor v. LeClaire, 846 F.3d 597, 608 (2d Cir. 2017) (internal quotation marks omitted); see Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir. 1996) (“Assessments of credibility and choices between conflicting versions of the events are matters for the jury, not for the court on summary judgment.”).
C. Separate Statements of Material Facts
Federal Rule of Civil Procedure 56(c)(1) explains the parties' evidentiary obligations in filing or responding to a motion for summary judgment:
A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.(emphases added). In addition, Local Rule 56 provides that: (a) a motion for summary judgment “must be accompanied by a separate and concise statement of undisputed material facts”; and (b) the party opposing the motion “must provide a separate, concise statement of disputed material facts.” These rules are not “mere formalit[ies]”; rather, they are “essential tools intended to relieve the district court of the onerous task of hunting through voluminous records without guidance from the parties.” Cao-Bossa v. N.Y. State Dep't of Lab., 1:18-CV-0509 (GTS/TWD), 2021 WL 3674745, at *1 (N.D.N.Y. Aug. 19, 2021), supplemented, 2021 WL 5321946 (Nov. 16, 2021), aff'd, 21-2593-cv, 2023 WL 2376071 (2d Cir. Mar. 7, 2023).
Cameron's Responses to Defendants' Statements of Undisputed Facts (see Docs. 79-1, 81-1 (“Cameron's Separate Statements”)) do not fully comply with these Rules. Specifically, Cameron's Separate Statements include both responses containing no evidentiary support for facts critical to Cameron's claim, and as Defendants note, responses containing “a mixture of responses to Defendants' asserted undisputed material facts and novel assertions of fact which may or may not have any relation to the paragraph to which they are nominally responding” (Doc. 82 at 1).
For example, in paragraph 39 of Menard and Rutherford's Statement of Undisputed Facts (“Menard and Rutherford's Separate Statement”), they assert that prior to the assault, Cameron “did not notify SSCF that she was the victim of a physical assault, an attempted physical assault[,] or a threatened physical assault.” (Doc. 78-1 at 7, ¶ 39.) In response, in paragraph 39 of Cameron's Separate Statement, Cameron does not state whether Menard and Rutherford's statement is disputed or undisputed, but instead states that Cameron “complained on multiple occasions,” in letters addressed to Menard and other methods of communication to other prison staff members, “that she had been receiving constant ridicule, sexual comments, mistreatment, and disparagement throughout her time at SSCF”; and that she “voiced her many safety concerns and her desires to be transferred to an all-women's facility” to Rutherford in “face to face discussions.” (Doc. 81-1 at 12, ¶ 39.) This is not responsive to the fact asserted in paragraph 39 of Menard and Rutherford's Separate Statement because it does not speak to an attempted, threatened, or actual assault. The response also adds new facts, including that Cameron experienced verbal harassment at SSCF and wanted to be transferred to an all-women's facility. As discussed in more detail below, however, an inmate's vague claims of derogatory comments and a desire to move to a different facility are insufficient to support a finding that prison officials were deliberately indifferent to an excessive risk of physical assault to the inmate. Finally, the evidence cited to support the statement that Cameron voiced “safety concerns” to Rutherford does not in fact support the statement. (See id. (citing Doc. 81-4, Rutherford Dep. at 67; Doc. 81-5, Cameron Aff.).) Nor does the other evidence cited in Cameron's paragraph 39 counter the relevant statement of fact or counter the evidence cited in support of paragraph 39 of Menard and Rutherford's Separate Statement.
Cameron cites Exhibit G to her Response to Menard and Rutherford's Motion in support of her statement in paragraph 39 of her Separate Statement (see Doc. 81-1 at 12, ¶ 39); but that Exhibit documents Cameron's complaints of “ridicule” and “disrespect” by other inmates and “unfair treatment” by prison officials (Doc. 81-9 at 2), and does not contain any evidence that, prior to Cameron's assault, she notified anyone at SSCF that she was the victim of a threatened, attempted, or actual assault by Lajoice or any other inmate (see generally Doc. 81-9). Cameron also cites a page from Rutherford's deposition in support of her statement in paragraph 39 of her Separate Statement (see Doc. 81-1 at 12, ¶ 39 (citing Ex. B, Rutherford Dep. at 67)), but in that part of the deposition, Rutherford was specifically discussing “verbal harassment” of Cameron (Doc. 81-4 at 66:22 (emphasis added)), not assault or any other physical conduct. Cameron also cites her own Affidavit in support of the statement (see Doc. 81-1 at 12, ¶ 39 (citing Ex. C, Cameron Aff.)), but nothing in Cameron's Affidavit indicates that Cameron was the victim of an attempted, threatened, or actual assault prior to the assault that is the subject of this case. Rather, the Affidavit discusses only “sexually threatening” “verbal abuse” (Doc. 81-5 at 2, ¶ 5). Cameron's Separate Statements follow a similar pattern throughout with respect to several key facts. (See, e.g., Cameron's Response to Menard and Rutherford's Separate Statement, Doc. 811 at 4, ¶ 12, at 9, ¶ 31, at 11-12, ¶¶ 36-37, at 16, ¶¶ 55-56; Cameron's Response to Potanas's Separate Statement, Doc. 79-1 at 11-14, ¶¶ 29, 32, 36, at 17-18, ¶¶ 48, 51-52.) Regarding many other facts, the Separate Statements indicate that Defendants' statements are “disputed” without either (a) providing evidence to support a contrary claim or (b) showing that the evidence cited by Defendants does not in fact support the corresponding statement. (See, e.g., Cameron's Response to Menard and Rutherford's Separate Statement, Doc. 81-1 at 4-8, ¶¶ 11, 13-14, 21, 23, 25-26, at 10-13, ¶¶ 34, 38, 41, 44; Cameron's Response to Potanas's Separate Statement, Doc. 79-1 at 13-15, ¶¶ 35, 41, at 20-21, ¶ 59.)
Notwithstanding these issues in Cameron's responsive Separate Statements, the Court has reviewed the entire record in determining the substantive merit of Defendants' Motions. See Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 73 (2d Cir. 2001) (“A district court has broad discretion to determine whether to overlook a party's failure to comply with local court rules[,]” and “it may in its discretion opt to conduct an assiduous review of the record [notwithstanding any procedural deficiencies].” (internal quotation marks omitted)).
II. Failure-to-Protect Claim Under the Eighth Amendment
Defendants contend that Cameron has failed to offer evidence establishing that they consciously disregarded a known risk of serious harm to Cameron. Accordingly, Defendants claim Cameron is unable to demonstrate the subjective element of a failure-to-protect claim, and thus summary judgment should be granted in Defendants' favor.
A. Governing Law
Prison officials have a duty under the Eighth Amendment “to take reasonable measures to guarantee the safety of inmates in their custody.” Hayes v. N.Y.C. Dep't of Corr., 84 F.3d 614, 620 (2d Cir. 1996) (citing Farmer v. Brennan, 511 U.S. 825, 832 (1994)). This duty includes “protect[ing] prisoners from violence at the hands of other prisoners.” Farmer, 511 U.S. at 833 (internal quotation marks omitted); see id. at 834 (“Being violently assaulted in prison is simply not part of the penalty that criminal offenders pay for their offenses against society.” (internal quotation marks omitted)). But “not . . . every injury suffered by one prisoner at the hands of another . . . translates into constitutional liability for prison officials responsible for the victim's safety.” Id. at 834. Prison officials may be held liable for an inmate's injuries only if they “acted with deliberate indifference to the safety of the inmate.” Hayes, 84 F.3d at 620 (internal quotation marks omitted). The test for establishing a prison official's deliberate indifference to inmate safety includes both objective and subjective prongs.
The objective prong requires the plaintiff to show that he or she was “incarcerated under conditions posing a substantial risk of serious harm.” Id. In other words, the risk of harm to the plaintiff must have been, objectively, “sufficiently serious.” Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994) (internal quotation marks omitted); see Helling v. McKinney, 509 U.S. 25, 36 (1993) (holding that objective prong of deliberate indifference standard requires prisoner to “show that the risk of which he complains is not one that today's society chooses to tolerate”); Jabbar v. Fischer, 683 F.3d 54, 57 (2d Cir. 2012) (holding that objective prong of deliberate indifference standard requires that prisoners “may not be deprived of their basic human needs,” including “reasonable safety,” and that they “may not be exposed to conditions . . . pos[ing] an unreasonable risk of serious damage to [their] future health”) (second alteration in original) (internal quotation marks omitted)). Determination of the objective prong “depends not on the [prison] officials' perception of the risk of harm, but solely on whether the facts, or at least those genuinely in dispute on a motion for summary judgment, show that the risk of serious harm was substantial.” Lewis v. Siwicki, 944 F.3d 427, 431-32 (2d Cir. 2019).
The subjective prong requires the plaintiff to show that the prison official acted with deliberate indifference, i.e., “a sufficiently culpable state of mind.” Farmer, 511 U.S. at 834 (internal quotation marks omitted). “[M]ere negligence” by a prison official “will not suffice.” Hayes, 84 F.3d at 620; see Hathaway, 37 F.3d at 66 (“Deliberate indifference requires more than negligence, but less than conduct undertaken for the very purpose of causing harm.”). Prison officials are deliberately indifferent when they: (1) “ha[ve] knowledge that an inmate faces a substantial risk of serious harm,” and (2) “disregard[] that risk by failing to take reasonable measures to abate the harm.” Hayes, 84 F.3d at 620; see Farmer, 511 U.S. at 837, 847. “Whether a prison official had the requisite knowledge of a substantial risk is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence, and a factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious.” Farmer, 511 U.S. at 842 (internal citation omitted).
Defendants impliedly concede that the physical injuries Cameron experienced as a result of Lajoice's assault constitute a sufficiently serious harm for purposes of the objective prong of the deliberate indifference standard. Defendants also appear to concede that as a transgender female with identifiable female features, Cameron was part of “an identifiable group of prisoners who are frequently singled out for violent attack by other inmates,” id. at 843 (internal quotation marks omitted), meaning Cameron was incarcerated under conditions posing a substantial risk of harm. See Powell v. Schriver, 175 F.3d 107, 115 (2d Cir. 1999) (“In our view, it was as obvious in 1991 as it is now that under certain circumstances the disclosure of an inmate's . . . transsexualism could place that inmate in harm's way.”); Manning v. Griffin, No. 15-CV-3 (KMK), 2016 WL 1274588, at *7 (S.D.N.Y. Mar. 31, 2016) (“The Court believes that [p]laintiff's allegations demonstrating the widespread recognition, both inside and outside the correctional community, that transgender inmates face heightened risks of sexual assault, including in [correctional] facilities, render it plausible that [d]efendants, concerned about the safety of . . . inmates, were aware that the [p]laintiff belongs to an identifiable group of prisoners who are frequently singled out for violent attack by other inmates, and thus was subject to a heightened risk of harm as a transgender prisoner in a male prison.” (internal citations and quotation marks omitted)); Lojan v. Crumbsie, No. 12 CV. 0320(LAP), 2013 WL 411356, at *4 (S.D.N.Y. Feb. 1, 2013) (“[T]he argument that more than mere knowledge of [p]laintiff's transgender status was required to put [d]efendant on notice of [p]laintiff's vulnerability is spurious.”); Stover v. Corr. Corp. of Am., No. 1:12-cv-00393-EJL, 2015 WL 874288, at *10 (D. Idaho Feb. 27, 2015) (given evidence at summary judgment that defendants were aware plaintiff sex offender was a transgender female prisoner with feminine characteristics who was housed in an open dorm with up to 58 male sex offenders, “a jury could reasonably conclude that [d]efendants . . . subjectively drew the inference that [p]laintiff faced a substantial risk of serious harm at the hands of the other sex offenders”). But it is not enough for prison officials to have knowledge of a substantial risk to a plaintiff; they must also consciously disregard that risk. See Baines v. City of New York, No. 01 Civ.2645 PKC GWG, 2004 WL 213792, at *6 (S.D.N.Y. Feb. 5, 2004) (“To succeed on . . . a [failure-to-protect] claim, the prisoner must establish both that a substantial risk to his safety actually existed and that the offending prison officials knew of and consciously disregarded that risk.” (emphasis added)).
An inmate may not establish a failure-to-protect claim merely because he or she was physically assaulted by another inmate. See, e.g., Ungar v. City of New York, No. 21-1384-cv, 2022 WL 10219749, at *2 (2d Cir. Oct. 18, 2022) (finding no genuine dispute of material fact supporting plaintiff's argument that officers were deliberately indifferent to risk posed by inmate to plaintiff, where “[plaintiff] himself testified that [inmate] ‘basically walked up to [him] and gave [him] a punch out of nowhere'” and where inmate's prior conduct towards plaintiff involved only “yelling and making offensive comments-none of which involved threats of physical violence”); Zimmerman v. Macomber, No. 95CIV0882(DAB), 2001 WL 946383, at *6 (S.D.N.Y. Aug. 21, 2001) (granting summary judgment because “[t]here is no evidence of any prior problem between Plaintiff and his attacker of which any Defendants were or should have been aware”); Dale v. Poston, 548 F.3d 563, 569 (7th Cir. 2008) (affirming summary judgment due to plaintiff inmate's failure to offer evidence of prison officers' actual knowledge of threat posed by other inmate, explaining that plaintiff's “vague statements that inmates were pressuring him and asking questions were simply inadequate to alert the officers to the fact that there was a true threat at play” (internal quotation marks omitted)). As one court in this Circuit explained, “[t]hat [p]laintiff was attacked and the correction staff w[as] unable to stop it does not, on its own, show that correction officers were aware of a substantial risk and failed to protect [p]laintiff against it; it shows merely that [p]laintiff was the victim of a spontaneous outburst of violence.” Bethel v. Wolff, No. 14-CV-6519 (KMK), 2017 WL 568325, at *8 (S.D.N.Y. Feb. 10, 2017); see Parris v. N.Y. State Dep't. Corr. Servs., 947 F.Supp.2d 354, 363 (S.D.N.Y. 2013) (“Courts routinely deny deliberate indifference claims based upon surprise attacks.” (internal quotation marks omitted)).
Generally, an inmate alleging a failure-to-protect claim against prison employees based on an assault by another inmate must establish that the prison employees knew that either (a) a prior altercation between the plaintiff and her assailant had occurred, or (b) threats had been made against the plaintiff by the assailant. Bethel, 2017 WL 568325, at *8 (citing cases); see, e.g., Mazyck v. Keller, 531 F.Supp.3d 630, 642 (W.D.N.Y. 2021) (inmate adequately pled failure-to-protect claim where plaintiff alleged “that he communicated specific information relating to a risk of serious harm-including information relating to an impending attack-and that defendant . . . had knowledge of this information but chose to disregard the risk of harm . . . by failing to place him in protective custody”); Lewis, 944 F.3d at 431-32 (reversing grant of summary judgment in favor of defendant prison official, where evidence demonstrated that official told plaintiff inmate, a known gang member, that there was “information that an assault was going to be against [him],” that “his safety could be in jeopardy,” and that “a member of [his gang] was going to attack him”; and where affidavit of prison official “acknowledged intercepting an inmate communication before the attack in which [plaintiff] was accused of breaking [gang] rules,” resulting in gang leader stating that plaintiff “was done” (first alteration in original) (internal quotation marks omitted)); Douglas v. Annuci, 14-CV-6018 CJS, 2017 WL 5159194, at *6 (W.D.N.Y. Nov. 7, 2017) (finding plaintiff plausibly pleaded a substantial risk of serious harm where complaint alleged there was “an active ‘contract' on [plaintiff's] life by the Bloods gang, and that he ha[d] already been slashed by Bloods gang members on five occasions”); Parris, 947 F.Supp.2d at 363 (holding that a claim for deliberate indifference based on failure to protect inmate requires that “[the] plaintiff . . . allege that the defendants knew of a history of prior inmate-on-inmate attacks similar to the one suffered by the plaintiff and that the measures they should have taken in response to such prior attacks would have prevented the attack on the plaintiff”); Caldwell v. Warden, FCI Talladega, 748 F.3d 1090, 1101 (11th Cir. 2014) (reversing grant of summary judgment where “defendants knew that inmate [who assaulted plaintiff] had a violent past, was very disruptive, and needed greater management”; that inmate “started a dangerous cell fire that endangered his life and [plaintiff's] life” and “expressed no regret at having endangered [plaintiff's] life or safety” thereafter; and that plaintiff “feared for his life if he was returned to a cell with inmate”); Pope v. Shafer, 86 F.3d 90, 92 (7th Cir. 1996) (“In failure to protect cases, [a] prisoner normally proves actual knowledge of impending harm by showing that he complained to prison officials about a specific threat to his safety.” (alteration in original) (internal quotation marks omitted)).
Alternatively, an inmate may establish a failure-to-protect claim against prison employees based on an assault by another inmate when she demonstrates that the prison employees failed to protect the inmate against “a general risk of harm to all inmates at the facility.” Parris, 947 F.Supp.2d at 363. In that case, the plaintiff must allege that “the defendants knew of a history of prior inmate-on-inmate attacks similar to the one suffered by the plaintiff and that the measures [the defendants] should have taken in response to such prior attacks would have prevented the attack on the plaintiff.” Id.
As explained below, Cameron has failed to establish facts to support either theory of liability against any Defendant based on their failure to protect her from Lajoice's assault. Cameron also has not offered any legal authority to support her failure-to-protect claim arising from the facts of her case, such as her placement in an all-male facility despite her identification as a transgender female.
B. Application
Before addressing the evidence bearing on Defendants' alleged deliberate indifference to the risk posed to Cameron by Lajoice's placement in an adjacent cell, the Court addresses several preliminary issues. First, the evidence does not demonstrate that Defendants were responsible for denying Cameron's request to be placed in an all-female facility due to safety concerns at SSCF. The decision to place Cameron at SSCF, an all-male facility, was made by the DOC's Central Office. (See Doc. 80-1 at 2, ¶ 5; Doc. 82-1 at 3, ¶ 8.) Further, Cameron's placement at SSCF resulted from her request to be transferred from Marble Valley Correctional Center, and she did not request to be placed anywhere in particular (including at a female facility) at that time. (See Doc. 80-1 at 2, ¶ 4; Doc. 82-1 at 2-3, ¶ 6.) Second, after Cameron's arrival, and after consideration of several factors including Cameron's own safety, a multidisciplinary team that included Potanas and Rutherford placed Cameron in SSCF's Medical Unit. The Medical Unit offered single occupancy cells and was the facility where low risk or very low risk elder inmates and inmates with medical issues were generally placed. (See Doc. 80-1 at 6-8, ¶¶ 11-13; Doc. 82-1 at 6-9, ¶¶ 11-14.) Though Cameron initially had no objection to her placement in the Medical Unit, she later asked to be placed in general population because she felt isolated and wanted to be with other inmates with whom she was friendly. (See Doc. 80-1 at 8, ¶¶ 14, 17; Doc. 82-1 at 11-12, ¶¶ 17, 20.) The multidisciplinary team decided not to move Cameron to general population, partially due to a general concern for her safety as an inmate identifying as transgender female. (See Doc. 80-1 at 10, ¶ 23; Doc. 82-1 at 15-16, ¶ 26.) Third, with respect to the placement of Lajoice in a cell next to Cameron, the evidence demonstrates that Defendants were not responsible for cell assignments in general or for that cell assignment in particular. (See Doc. 80-1 at 13, ¶ 30; Doc. 82-1 at 21-22, ¶ 34.)
More importantly, there is no evidence that any of the Defendants had reason to believe Lajoice presented a threat to Cameron's physical safety. (See Doc. 80-1 at 13-14, ¶¶ 31-32, at 16, ¶ 41; Doc. 82-1 at 16-18, ¶¶ 27-28, at 20-21, ¶ 33.) Although there is evidence that Cameron complained to SSCF staff about her placement and experience at SSCF, none of those complaints involved Lajoice or Cameron's physical safety. Specifically, Cameron has submitted a September 6, 2015 email received by Potanas and sent to Rutherford that references Cameron “mention[ing] . . . want[ing] to go to a different facility” due to inmates and staff “making inappropriate comments” directed at her, an officer patting her down “often” and calling her by her former male name (“Dave”), the same officer “harass[ing] her while she was using the inmate bathroom,” another officer making “disparaging remarks” about the transgender population in her presence, and inmates yelling to her “show us your tits” and an officer laughing. (Doc. 81-9 at 6; see also id. at 5.) Cameron has also submitted a December 2, 2015 letter addressed to Commissioner Menard, in which Cameron states that she was “receiv[ing] ridicule and complete disrespect” from other inmates at SSCF, along with “unfair treatment” from SSCF officers. (Id. at 2.) The express purpose of that letter was for Cameron's good time credit to be restored after it had been withheld as a result of Cameron “receiv[ing] a major [disciplinary report] for [making a] sexual p[ro]posal [toward another inmate].” (Id.; see id. (“I would . . . appreciate a concrete answer [as to whether my good time credit will be restored] so I can at least know what not to expect.”).) Cameron has also submitted a letter addressed to Menard, marked “RECEIVED” on December 10, 2015, requesting a transfer to “Chittenden [Regional] Correctional [F]acility,” an all-women facility, “[i]f [Cameron's] good time [credit] is not going to be given to [her] collectively,” because of “hardships” Cameron experienced while incarcerated at SSCF. (Id. at 7.) The letter states that Cameron “firmly believe[d] that this move would alleviate the major emotional difficulties that [she had] been enduring.” (Id. (emphasis added).)
This evidence does not advance Cameron's failure-to-protect claim because it, along with other evidence in the record, demonstrates that the general basis for Cameron's request to move prisons was not a fear for her physical safety and certainly not a fear of Lajoice, but rather: (1) other inmates and staff at SSCF being rude to her or ridiculing her and not supporting her gender identity, causing her emotional distress; (2) her loss of eligibility for good time credit at SSCF; and (3) her placement in the Medical Unit at SSCF instead of in general population where she could socialize more freely. Verbal harassment, no matter how offensive, does not rise to the level of a constitutional violation. See Cole v. Fischer, 379 Fed.Appx. 40, 43 (2d Cir. 2010) (holding that “verbal harassment, standing alone, does not amount to a constitutional deprivation”); Cuoco v. Moritsugu, 222 F.3d 99, 109 (2d Cir. 2000) (holding that “rudeness and name-calling does not rise to the level of a constitutional violation”); Fischl v. Armitage, 128 F.3d 50, 55 (2d Cir. 1997) (holding that “mere allegations of verbal abuse, threats[,] or defamations by a correctional officer to a prisoner are not cognizable in a Section 1983 action”); Purcell v. Coughlin, 790 F.2d 263, 265 (2d Cir. 1986) (“The claim that a prison guard called [the plaintiff] names . . . did not allege any appreciable injury and was properly dismissed.”); Shabazz v. Pico, 994 F.Supp. 460, 474 (S.D.N.Y. 1998) (“[V]erbal harassment or profanity alone, unaccompanied by any injury[,] no matter how inappropriate, unprofessional, or reprehensible it might seem, does not constitute the violation of any federally protected right and therefore is not actionable under 42 U.S.C. § 1983.” (internal quotation marks omitted)); Cole v. Tredway, Case No. 14- CV-1059-MJR-RJD, 2016 WL 7118946, at *5 (S.D. Ill.Dec. 7, 2016) (“[T]he evidence before the Court-testimony that [p]laintiff complained regarding propositions, winking, and other sexually suggestive gestures from other inmates-falls short of establishing that [d]efendant [prison employee] was aware of a substantial risk of bodily harm to [p]laintiff.”). Even when rude comments and ridicule reach the level of sexual harassment, it is not sufficient to support an Eighth Amendment claim. See Austin v. Terhune, 367 F.3d 1167, 1171 (9th Cir. 2004) (“Although prisoners have a right to be free from sexual abuse, whether at the hands of fellow inmates or prison guards, the Eighth Amendment's protections do not necessarily extend to mere verbal sexual harassment.” (internal citation omitted)).
Cameron also claims that she told Rutherford prior to her assault that she “did not feel safe” at SSCF and that she wanted to be transferred to Chittenden Regional Correctional Facility where she “felt she would be safer.” (Doc. 81-1 at 18-19, ¶ 63 (citing Cameron Aff.).) The only evidence cited in support of this claim is Cameron's own Affidavit, which provides no timeframe (other than before the subject assault), context, or detail about the relevant conversations. (See Cameron Aff., Doc. 81-5 at 2, ¶¶ 5-6.) Rutherford, on the other hand, testified in deposition that although he did have at least one conversation with Cameron regarding her complaints about SSCF, the complaints were related to “verbal harassment” by staff members and Cameron “specifically declined” to give Rutherford the names of those staff members. (Doc. 78-5 at 66:22-23.) Rutherford further testified that he had no knowledge of Cameron requesting to be moved to Chittenden Regional Correctional Facility. (Id. at 90:12-15.) Given that Plaintiff's only evidence that she told Rutherford (or anyone else) that she did not feel “safe” at SSCF are conclusory and unspecific statements in her Affidavit, and considering the other evidence indicating that Cameron's concerns at SSCF were related to verbal abuse and her placement in the Medical Unit instead of in general population, I find that Cameron has failed to meet her burden on summary judgment to demonstrate a genuine disputed material fact as to this issue. See Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009) (“When a motion for summary judgment is properly supported by documents or other evidentiary materials, the party opposing summary judgment may not merely rest on the allegations or denials of his pleading; rather his response, by affidavits or otherwise as provided in the Rule, must set forth ‘specific facts' demonstrating that there is ‘a genuine issue for trial.'” (emphasis added) (quoting Fed.R.Civ.P. 56(e))); Johnson v. Conn. Dep't of Admin. Servs., 972 F.Supp.2d 223, 240-41 (D. Conn. 2013) (“Where there is no evidence upon which a jury could properly proceed to find a verdict for the party producing it and upon whom the onus of proof is imposed, such as where the evidence offered consists of conclusory assertions without further support in the record, summary judgment may lie.” (emphasis added) (citing Fincher v. Depository Trust and Clearing Co., 604 F.3d 712 (2d Cir. 2010))), aff'd, 588 Fed.Appx. 71 (2d Cir. 2015).
For an inmate to establish that a prison official was deliberately indifferent regarding the inmate's assault by another inmate, the inmate must generally show “why [the official] should have known that a beating was likely to occur.” Bridgewater v. Taylor, 698 F.Supp.2d 351, 358 (S.D.N.Y. 2010); see Sims v. Bowen, No. 96-CV-656 RSP/DRH, 1998 WL 146409, at *3 (N.D.N.Y. Mar. 23, 1998) (“[A]n inmate must inform a correctional official of the basis for his belief that another inmate represents a substantial threat to his safety before the correctional official can be charged with deliberate indifference.”). Cameron has not made this showing as to any Defendant. Specifically, Cameron has not submitted evidence demonstrating that any Defendant was aware of instances in which she was physically threatened, physically threatened someone else, or was otherwise involved as aggressor or victim in an incident involving physical harm at SSCF. (See Doc. 80-1 at 12-15, ¶¶ 29, 34-36; Doc. 82-1 at 9-11, ¶ 16, at 23-25, ¶¶ 36, 38-39.) Nor has Cameron presented evidence establishing that any Defendant was aware that Lajoice had a history as a violent or dangerous inmate, or that Lajoice harbored ill will toward Cameron specifically or transgender people in general. (Doc. 80-1 at 11-12, ¶¶ 27-28, at 14, ¶ 33, at 16, ¶¶ 37-38; Doc. 82-1 at 19-20, ¶¶ 31-32, at 24-27, ¶¶ 37, 40-41.)
To the contrary, the evidence indicates that Lajoice was a “minimum custody incarcerated individual,” classified at SSCF's lowest level because he posed “a lower risk of serious disturbance or harm either to staff or others.” (Doc. 78-13 at 6:15, 7:22-23 (cited in Doc. 82-1 at 19, ¶ 31).) Although Rutherford testified in deposition that Lajoice could “sometimes be argumentative, [and] a little bit grumpy,” he also stated that he had “never observed” Lajoice to “act in a violent manner.” (Doc. 78-13 at 7:3-4, 9-10.) As for Lajoice's “multiple decade[s]” of incarceration, Rutherford stated that although he “believe[d] there were some instances of violence,” Lajoice “did not have . . . a reputation as somebody who was regularly or excessively violent or posed . . . a significant risk to those around him.” (Id. at 7:13-18.) Cameron has not responded to these statements of Rutherford in her corresponding Separate Statement (see Doc. 81-1 at 9, ¶ 31), although she states that she herself “has testified that inmate Lajoice had a reputation as a violent inmate, who was jealous and who would request sexual favors of other inmates” (id. at 10, ¶ 32). However, Cameron's unsupported opinion about Lajoice's reputation as a violent inmate is immaterial to the decisive issue here: Defendants' knowledge and opinion about whether Lajoice was a violent inmate. See Dale, 548 F.3d at 569 (“The focus is on the defendant[] [prison officers'] subjective state of mind, and for all they knew, [the plaintiff inmate] was being harassed by a garter snake.... [The plaintiff's] vague statements that inmates were ‘pressuring' him and ‘asking questions' were simply inadequate to alert the officers to the fact that there was a true threat at play.”).
The evidence demonstrates that Defendants took steps to try to keep Cameron safe at SSCF, including Potanas and Rutherford participating in the multidisciplinary team's decision to place (and maintain) Cameron, a transgender female “with a female appearance and characteristics” (Doc. 81 at 9, ¶ 45), in the Medical Unit at SSCF, which, for inmate safety reasons, contained only single-bed cells, housed only low and very low risk inmates, and included cells with a solid door and window that could be opened and closed by inmates on their own. (Doc. 80-1 at 6-8, ¶¶ 11-16, at 10, ¶¶ 22-23; Doc. 82-1 at 6-9, ¶¶ 11-14, at 12, ¶¶ 18-19, at 14-16, ¶¶ 25-26.) In cases like this, where prison officials reasonably respond to a known risk, there is no constitutional liability for failure to protect. See Henry v. County of Nassau, No. 13-cv-7427(SJF)(ARL), 2015 WL 2337393, at *6 (E.D.N.Y. May 13, 2015) (“[P]rison officials who actually knew of a substantial risk to inmate health or safety may be found free from liability if they responded reasonably to the risk, even if the harm ultimately was not averted.” (emphasis added) (quoting Farmer, 511 U.S. at 844)). Defendants cannot be faulted for injuries Cameron suffered in the altercation with Lajoice, when Cameron's contemporaneous complaints about her placement at SSCF were based not on a safety-related fear, but on inmates and staff being rude to her or ridiculing her, her loss of eligibility for good time credit, and her desire to socialize more freely with other inmates. In sum, the evidence is insufficient to demonstrate that Defendants knew or should have known that Lajoice (or any other inmate at SSCF) might attack Cameron. See Adorno v. Semple, CASE NO. 3:16-cv-325 (MPS), 2016 WL 7469709, at *4 (D. Conn. Dec. 28, 2016) (finding that transgender inmate failed to state plausible failure-to-protect claim based on assault by correctional officers because inmate “fail[ed] to allege facts suggesting that defendant[] [prison staff members] were aware of any risk of harm by [correctional officers]”); Grieveson v. Anderson, 538 F.3d 763, 776 (7th Cir. 2008) (holding that inmate who “told jail officials only that he was afraid and that he wanted to be moved” failed to put those officials on notice of an actionable threat).
There is also insufficient evidence demonstrating that Defendants should have predicted that, on the day of the attack, Cameron would confront Lajoice at his cell about an argument they had earlier that day, prompting Lajoice's attack of Cameron. Whether Cameron's own conduct should bar her claim against Defendants is addressed below in this Report and Recommendation.
Cameron suggests that Defendants were deliberately indifferent to a serious risk of harm to her because the placement of a transgender female in an all-male correctional setting is clearly inappropriate. (See Doc. 79 at 2, ¶ 3 (“Anyone walking past [Cameron] on the sidewalk would recognize her as a female and therefore recognize that her placement within an all-male prison facility was improper.”).) But Cameron does not establish a failure-to-protect claim by broadly claiming that Defendants should have placed her in, or transferred her to, a female prison solely because she identifies as a transgender female. The Court is unaware of any authority holding that a prison official's mere knowledge that an inmate identifies as a transgender female supports an Eighth Amendment cause of action if at some point she is attacked by another inmate at a male prison. Courts are reluctant to conclude in the abstract that prison officials are liable for failure to protect when an inmate with a certain characteristic-be it crime of conviction, racial identity, or cooperator status-is the victim of physical violence. Rather, courts consider the particular circumstances of the situation to discern whether officials had reason to know of particular risk to the inmate. See Holden v. Hirner, 663 F.3d 336, 341-42 (8th Cir. 2011) (finding no constitutional violation where sex offender inmate was assaulted by other inmates because, although sex offender inmates are part of a vulnerable population in prison, officers were unaware inmate was in danger beyond his status as a sex offender and claims that his cellmate had previously attacked him); Dale, 548 F.3d at 570 (“Just because a correctional officer knows an inmate has been branded a snitch-and it's common knowledge that snitches face unique risks in prison-does not mean that an officer violates the Constitution if the inmate gets attacked.”); Vickers v. Jensrud, No. 3:12-cv-02102-MO, 2014 WL 2592692, at *5, 6 (D. Or. June 9, 2014) (holding that, although prison staff are generally aware of the risk of racially aligned prison gangs attacking each other, plaintiff failed to present sufficient evidence to suggest that “interracial insults and threats lead so inevitably to violence” that prison staff should be constitutionally liable in every instance of physical attack, and that “some evidence of imminent violence particular to one or more of the inmates involved is necessary”); id. at *5 (“If every verbal altercation between inmates of different races is enough categorically to create a substantial risk of serious harm, then a prison official's every failure to intervene in such an altercation, regardless of the context or the inmates' prior history of violence, would violate the Eighth Amendment.”).
Furthermore, the law does not support the more general proposition that inmates, including transgender inmates, have a constitutional right to placement in any specific prison, including in an all-female prison. To the contrary, prisoners do not have a constitutional right to a particular prison placement. See Olim v. Wakinekona, 461 U.S. 238, 244-45 (1983) (“The conviction has sufficiently extinguished the defendant's liberty interest to empower the State to confine him in any of its prisons....Confinement in any of the State's institutions is within the normal limits or range of custody which the conviction has authorized the State to impose.” (internal quotation marks omitted)); McMahon v. Fischer, 446 Fed.Appx. 354, 357 (2d Cir. 2011) (“A prisoner has no right to housing in a particular facility ....”). As relevant to Cameron's claim, courts addressing the issue have held that transgender female inmates do not have a constitutional right to placement in an all-women's prison. See, e.g., Aliahmed v. Troxler, 839 Fed.Appx. 675, 677 (3d Cir. 2021) (because transgender plaintiff “lack[ed] a cognizable liberty interest in being confined in any particular institution,” she was unlikely to succeed on her claim for injunctive relief to transfer to a women's prison); Gordon v. Inslee, CASE NO. 3:21-CV-5802-BJR-DWC, 2023 WL 2874062, at *11 (W.D. Wash. Feb. 6, 2023) (holding that “[p]laintiff does not have a freestanding right to placement in a women's prison,” noting that “even in light of the ever-present, generalized risk of sexual assault that transgender inmates face, courts have declined to impose hard-line rules requiring particular prison assignments or cell placements”) (internal quotation marks omitted) (citing cases)), report and recommendation adopted, 2023 WL 2864187 (Apr. 10, 2023); Aliahmed v. Troxler, C. A. No. 20-526-VAC, 2022 WL 1045648, at *5, 6, 7 (D. Del. Apr. 7, 2022) (dismissing as frivolous transgender female inmate's claim seeking transfer to a female prison because “[t]he Court has no authority to dictate [p]laintiff's housing assignment or prison classification,” and dismissing “safe housing claim” because “Plaintiff has no constitutional right to be housed in the prison of her choosing”); Charles v. Neal, CAUSE NO. 3:17-CV-501-PPS, 2017 WL 4075217, at *3 (N.D. Ind. Sept. 14, 2017) (finding that transgender female inmate seeking transfer to a women's prison failed to state a cognizable constitutional claim, and holding that “prison officials have authority to house an inmate in any correctional facility they deem appropriate, and an inmate has no constitutional right to be housed in a particular correctional facility or in the facility of her choosing”).
Accordingly, I find that there are no genuine disputes of material fact as to whether any Defendant was deliberately indifferent to the risk of harm posed to Cameron by Lajoice or any other inmate. To the contrary, the admissible evidence demonstrates that there was no reason for Defendants to believe that placing Lajoice in a cell next to Cameron would present a substantial risk of serious harm to Cameron.
III. Defendants' Lack of Personal Involvement in the Alleged Constitutional Violation
“It is well settled in this Circuit that personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.” Spavone v. N.Y. State Dep't of Corr. Servs., 719 F.3d 127, 135 (2d Cir. 2013) (quoting Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995)). Therefore, each government-official defendant may be held accountable only for his or her “own individual actions” under § 1983, Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009), and the plaintiff must show some “tangible connection” between those actions and the injury suffered, Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986). In order to prove her Eighth Amendment failure-to-protect claim, Cameron must establish “that a particular defendant kn[ew] of and disregard[ed] an excessive risk to [her] health or safety.” Brock v. Wright, 315 F.3d 158, 164 (2d Cir. 2003) (internal quotation marks omitted). Liability against any of the defendants in their supervisory capacities may not rest on a theory of respondeat superior, Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir. 2003); it is not enough for Cameron to show mere “linkage in the prison chain of command,” Ayers v. Coughlin, 780 F.2d 205, 210 (2d Cir. 1985). See Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (noting that a defendant in a § 1983 action may not be held liable for constitutional violations merely because he held a high position of authority); Gill v. Mooney, 824 F.2d 192, 196 (2d Cir. 1987) (finding allegation that prison superintendent had general responsibility over inmate “care, custody[,] and safety” was insufficient for § 1983 liability, explaining: “[d]ismissal of a section 1983 claim is proper where . . . the plaintiff ‘does no more than allege that [defendant] was in charge of the prison'” (third alteration in original) (quoting Williams v. Vincent, 508 F.2d 541, 546 (2d Cir. 1974))).
Prior to the Supreme Court's decision in Ashcroft v. Iqbal, the Second Circuit identified “five categories of evidence that [could] establish the liability of a supervisory official for a subordinate's conduct under § 1983.” Tangreti v. Bachmann, 983 F.3d 609, 616 (2d Cir. 2020). The Second Circuit has since clarified the standard that applies to supervisory liability claims in light of Iqbal:
These categories consisted of: (1) direct participation in the constitutional violation; (2) failure to remedy the violation after learning of it through a report or appeal; (3) creating or allowing to continue a policy or custom amounting to a constitutional violation; (4) being grossly negligent in supervising subordinates who committed a constitutional violation; or (5) failure to act on information indicating that unconstitutional acts were occurring. Id.
[A]fter Iqbal, there is no special rule for supervisory liability. Instead, a plaintiff must plead and prove that each Government-official defendant, through the official's own individual actions, has violated the Constitution. The factors necessary to establish a [§ 1983] violation will vary with the constitutional provision at issue because the elements of different constitutional violations vary. The violation must be established against the supervisory official directly.Id. at 618 (second alteration in original) (citations and internal quotation marks omitted); see Id. at 617 (“[A] conception of supervisory liability-according to which a supervisor may be held liable based on a lesser showing of culpability than the constitutional violation requires-is inconsistent with the principle that officials may not be held accountable for the misdeeds of their agents.” (internal quotation marks omitted)); Iqbal, 556 U.S. at 676 (“Because vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution.”).
There is no evidence that any Defendant participated directly in a constitutional violation. None of the Defendants was involved in the placement of Cameron at SSCF. Although Potanas and Rutherford were part of a team of prison staff who decided to house and maintain Cameron in the Medical Unit at SSCF, that decision was for Cameron's own safety, and Cameron has not submitted any evidence indicating that the placement decision was constitutionally deficient. See, e.g., Aliahmed, 839 Fed.Appx. at 677 (finding that “[t]he record . . . reflects that the defendants have taken precautions, including the placement of [plaintiff, a biological male inmate who identified as a female,] in a single cell, in order to protect her safety”); Dale, 548 F.3d at 570 (“Prison officials do not violate the Eight[h] Amendment because the mode of protection they offer does not sit well with a prisoner[;] [r]ather, if they offer reasonable protection from the threat, they have done their duty.”); Bagola v. Kindt, 131 F.3d 632, 646 (7th Cir. 1997) (“[R]easonable measures taken to avert known risks will insulate a prison official from Eighth Amendment liability, even if those measures proved unsuccessful.”). As discussed above, none of the Defendants had information that should have alerted them that Lajoice or any other inmate posed an excessive risk of harm to Cameron. Although there is evidence that Cameron complained to Menard, Rutherford, and Potanas about her living situation at SSCF, her complaints were about emotional difficulties and verbal harassment, not assault.
As discussed infra, Cameron's argument that the decision to maintain her in the Medical Unit violated the Prison Rape Elimination Act (PREA) is immaterial to the Eighth Amendment determination of whether Defendants were deliberately indifferent to an excessive risk of harm.
Moreover, Potanas testified in deposition that, when he learned of Cameron's complaints of emotional abuse, he “instructed [his subordinates] to investigate the allegation.” (Doc. 72-3 at 58:15-18.) A September 7, 2015 email confirms that Potanas advised two of his subordinates, including Rutherford, that they “need[ed] to start an investigation on [Cameron's complaints] ASAP.” (Doc. 72-9 at 2.) Rutherford testified in deposition that he did not recall receiving that email but he did not doubt its authenticity. (Doc. 78-5 at 79:7-10.) He further testified that he did not recall conducting an investigation into the matter but he believed one was conducted. (Id. at 80:24-81:8.)
With respect to Menard, she testified in deposition that she did not recall reading either (a) the December 2, 2015 letter from Cameron advising that she was being ridiculed and treated disrespectfully and unfairly by SSCF inmates and officers, and asking that her good time credit be restored, or (b) Cameron's letter stamped “received” by the Office of the Commissioner on December 10, 2015, in which Cameron requested a move to a different prison to alleviate the emotional difficulties she had been enduring at SSCF. (Doc. 78-4 at 40-41, 43-45, 47; see Doc. 78-15 at 2; Doc. 78-16 at 2.) Menard also testified that, though it was “certainly possible,” she did not recall advising Cullen Bullard to send a letter to Cameron stating that she was assessed to be housed appropriately and that she should follow the grievance process if she wanted the matter reviewed. (Doc. 78-4 at 47:17-18; see Doc. 78-20 at 2.) Even if Menard had read Cameron's December 2015 letters and then advised Cullard to send his response, Cameron's complaints of ridicule, disrespectful treatment, and emotional difficulties at SSCF are insufficient to put Menard or any other Defendant on notice of a substantial risk of harm to Cameron for purposes of deliberate indifference in violation of the Eighth Amendment.
Accordingly, I find that there are no triable issues of material fact as to whether any of the Defendants were personally involved in an Eighth Amendment violation.
IV. Qualified Immunity
Defendants assert that they are entitled to qualified immunity from Cameron's failure-to-protect claim. The doctrine of qualified immunity “shields government officials from civil damages liability unless the official violated a statutory or constitutional right that was clearly established at the time of the challenged conduct.” Reichle v. Howards, 566 U.S. 658, 664 (2012). “The doctrine aims to balance ‘the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.'” Horn v. Stephenson, 11 F.4th 163, 169 (2d Cir. 2021) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)).
A right is “clearly established” if, at the time of the challenged conduct, it was “sufficiently clear that every reasonable official would [have understood] that what he is doing violates that right.” Reichle, 566 U.S. at 664 (alteration in original) (internal quotation marks omitted). Clearly established law must be particularized to the facts of the case, and courts may not define clearly established law at a high level of generality. Horn, 11 F.4th at 169. This standard ensures that the official sued had fair warning that his or her actions were unlawful. Id. Nonetheless, the plaintiff need not produce a case directly on point; it is only necessary to demonstrate that “existing precedent . . . placed the statutory or constitutional question beyond debate.” Id. (omission in original) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)). In determining what “existing precedent” is, courts consider “Supreme Court or Court of Appeals case law” that existed at the time of the alleged violation. Terebesi v. Torreso, 764 F.3d 217, 231 (2d Cir. 2014).
The court evaluates claims of qualified immunity at summary judgment using a two-part inquiry: “(1) whether the facts, taken in the light most favorable to the party asserting the injury, show the officer's conduct violated a federal right[,] and (2) whether the right in question was clearly established at the time of the violation.” Sloley v. VanBramer, 945 F.3d 30, 36 (2d Cir. 2019) (internal quotation marks omitted). Qualified immunity is an affirmative defense, and “the burden is on the defendant-official to establish it on a motion for summary judgment.” Bailey v. Pataki, 708 F.3d 391, 404 (2d Cir. 2013). A defendant is entitled to summary judgment on qualified immunity grounds when “no reasonable jury, looking at the evidence in the light most favorable to, and drawing all inferences most favorable to, the plaintiffs, could conclude that it was objectively unreasonable for the defendant[] to believe that he was acting in a fashion that did not clearly violate an established federally protected right.” Robison v. Via, 821 F.2d 913, 921 (2d Cir. 1987) (alteration in original) (internal quotation marks omitted). Summary judgment based on qualified immunity “requires that no dispute about material factual issues remain[s].” Hemphill v. Schott, 141 F.3d 412, 418 (2d Cir. 1998); see Johnson v. Ganim, 342 F.3d 105, 117 (2d Cir. 2003) (“Where a factual issue exists on the issue of motive or intent, a defendant's motion for summary judgment on the basis of qualified immunity must fail.”). When considering qualified immunity at the summary judgment stage, as with other issues on summary judgment, courts must “construe all evidence and draw all reasonable inferences in the non-moving party's favor.” Naumovski v. Norris, 934 F.3d 200, 210 (2d Cir. 2019) (internal quotation marks omitted).
Because I recommend granting summary judgment on the merits of Cameron's Eighth Amendment failure-to-protect claim, the Court need not address qualified immunity. See, e.g., Farrell v. Burke, 449 F.3d 470, 499 n.14 (2d Cir. 2006) (“Because we have found no cognizable violation of [plaintiff's] rights in this case, we need not reach the question of qualified immunity.”). In any event, I find that Defendants are entitled to qualified immunity because Cameron has not established that Defendants knew of a risk of substantial harm to Cameron and consciously disregarded that risk in violation of the Eighth Amendment. Furthermore, to the extent that Cameron's case hinges on a claim that it was unconstitutional for Defendants to place her in a male prison by virtue of her identity as a transgender female, even if such placement could rise to the level of a violation of a constitutional right, that right was not clearly established on the date of the assault (December 21, 2015). The law was not clearly established in December 2015 that prison authorities must house transgender female inmates in female prisons. See, e.g., Minor v. Dilks, Civil Action No. 19-18261 (KMW) (AMD), 2022 WL 3369707, at *6 (D.N.J. Aug. 16, 2022) (finding that prison officials were not required to transfer transgender female inmate to female prison or place inmate with other transgender inmates, and stating that “[t]his Court is aware of no Supreme Court decision, binding Third Circuit case, or clear consensus of circuit courts establishing a right to [such transfer or placement] ¶ 2019 or 2020[;] [w]hat few cases do exist on th[is] issue . . . suggest that no such clearly established right exists.”); Wilson v. David, No. 9:08-cv-618, 2010 WL 610714, at *5 n.5 (N.D.N.Y. Feb. 17, 2010) (“Assuming the failure to house a transgender [female] inmate in a female prison could rise to the level of a constitutional violation, any constitutional right not to be placed in an all[-]male facility is not clearly established and [d]efendants would, therefore, be entitled to qualified immunity.”)
V. Effect of Cameron's Voluntary Conduct on Failure-to-Protect Claim
As an alternative basis for summary judgment, Defendants contend that Cameron's own voluntary conduct in causing the altercation bars her claim. Although the parties have not cited Second Circuit authority addressing this issue, district courts in this Circuit and other appellate courts have held that a plaintiff's failure-to-protect claim may not succeed where the plaintiff instigates the altercation resulting in the injury. As explained below, the undisputed material facts demonstrate that Cameron's own conduct bars her failure-to-protect claim against Defendants.
For example, the Seventh Circuit affirmed the dismissal of a failure-to-protect claim where the plaintiff inmate threw a book at another inmate. The court explained that “prison officials cannot reasonably be required to protect an inmate who intentionally instigates a violent altercation with another prisoner.” Clark v. Johnson, 181 Fed.Appx. 606, 607 (7th Cir. 2006); see Miller v. Fisher, 381 Fed.Appx. 594, 597 (7th Cir. 2010) (“Miller did not offer sufficient evidence that [the other inmate] was ‘almost certain' to attack him because Miller's testimony established that he, not [the other inmate], was the violent aggressor.”); but see Santiago v. Walls, 599 F.3d 749, 759 (7th Cir. 2010) (finding district court erred in dismissing prisoner's failure-to-protect claim at pleading stage despite fact that plaintiff “threw the first punch when the inevitable altercation with [another inmate] occurred”); see Coleman v. Carson, Case No. 3:19-CV-102 JD, 2021 WL 3167739, at *4 (N.D. Ind. July 27, 2021) (comparing Clark and Santiago, and concluding that “[a]n inmate who walks away from a perceived threat and initiates a fight cannot properly maintain a claim that jail officials failed to protect him from the consequences of that fight[;] [t]he Santiago Court did not rule otherwise.”). Similarly, the Tenth Circuit found that an inmate could not maintain a failure-to-protect claim against prison officials when the inmate was the aggressor in an altercation with another inmate, particularly where the inmate admitted that he “could have avoided” the other inmate “but instead engaged him in an altercation.” Hailey v. Kaiser, 201 F.3d 447 (Table), 1999 WL 1009614, at *2 (10th Cir. 1999).
District courts in this and other Circuits have reached similar conclusions. For example, the Northern District of New York held that “a prisoner who is himself the aggressor in fights with other inmates cannot succeed on a failure to protect claim.” Louis-Charles v. Courtwright, Civil Action No. 9:11-cv-147 (GLS/TWD), 2014 WL 457951, at *6 (N.D.N.Y. Feb. 4, 2014). The Southern District of New York has found that a prisoner “could hardly be heard to complain that [prison officials] failed to protect him from the fight he sought out.” Constant v. Prack, 16-CV-03985 (PMH), 2022 WL 917528, at *8 (S.D.N.Y. Mar. 29, 2022); see Pecuch v. Platt, No. 13-CV-6102-FPG, 2015 WL 6505109, at *3 (W.D.N.Y. Oct. 27, 2015) (“An inmate's own violent tendencies are not the type of substantial risk of serious harm protected by the Constitution.” (internal quotation marks omitted)). As the Northern District of Ohio reasoned, “[w]hile prisoners do have a constitutional right to be protected from the violence of other prisoners when there is adequate notice of an impending assault, that assumes that the complainant is the victim, rather than the proximate cause, of the assault.” Molina v. Smearsal, No. 3:08CV2912, 2011 WL 127158, at *3 (N.D. Ohio Jan. 14, 2011). As in this case, in Molina the plaintiff prisoner had confronted another inmate, asking him “what's your problem” loud enough to attract the attention of the officer on duty, and raising his hands, “asking him in a gesture, what's your problem,” resulting in an altercation with the other inmate and an officer breaking plaintiff's leg while breaking up the fight. Id. at *1, *3 n.3. The plaintiff prisoner's instigation of the altercation was “fatal to []his claim.” Id. at *3.
Other district courts have similarly concluded that a failure-to-protect claim fails where the plaintiff initiates the incident that results in the injury. See Rosenblum v. Orange Cnty. Sheriff Dep't, No. SA CV 18-966-JVS(E), 2021 WL 933750, at *11 (C.D. Cal. Feb. 10, 2021) (“An inmate who initiates an altercation with another inmate cannot properly maintain a claim that correctional officials failed to protect the initiating inmate, prior to the altercation, from harm inflicted by the other inmate.”), report and recommendation adopted, 2021 WL 2420412 (May 7, 2021); Huger v. Anderson, No. 1:12CV1242, 2015 WL 1525994, at *4 (M.D. N.C. Apr. 2, 2015) (as plaintiff inmate's act of aggression against another inmate “represented a superseding cause” of plaintiff's injuries, officer's conduct was not “the proximate cause of [p]laintiff's injuries, as required to establish liability under § 1983”); Vickers, 2014 WL 2592692, at *7 (“If the inmate voluntarily encountered the source of the risk of harm, then his own conduct is a superseding cause of the injuries absolving the allegedly indifferent officer of liability.”); Wilson v. Archer, No. 2:12-CV-01082-MO, 2014 WL 37788, at *2 (D. Or. Jan. 4, 2014) (“[P]rison officials are not liable for any failure to respond to a plaintiff's complaints that a fellow inmate posed a risk of harm when the plaintiff voluntarily fought with the inmate.”); Lemmons v. Durant, No. 10-3030, 2011 WL 4633104, at *3 (C.D. Ill. Oct. 4, 2011) (“[S]tarting a fight or voluntarily participating in one and then getting the worst of it does not create a failure to protect claim.”); Indreland v. Yellowstone Cnty. Bd. of Comm'rs, 693 F.Supp.2d 1230, 1243 (D. Mont. 2010) (holding prisoner's failure-to-protect claim failed where prisoner was “the aggressor” in altercation with cellmate).
Applying this sound reasoning to the facts of this case, I find that Cameron cannot succeed on her failure-to-protect claim because the undisputed material facts demonstrate that Cameron's own actions were the proximate cause of the altercation with Lajoice. Cameron argues that there are disputed facts regarding how much she was able to say to Lajoice before the altercation began, and whether Cameron entered Lajoice's cell before or after Lajoice started beating Cameron. (See Doc. 81 at 12; Doc. 79-1 at 18-19, ¶¶ 51-53; Doc. 81-1 at 16-17, ¶¶ 5557.) However, these facts are not material to the issue. The following undisputed material facts establish that Cameron instigated the altercation: (1) after having a disagreement with Lajoice earlier in the day and serving her resulting punishment by spending two hours in her locked cell, Cameron “went to [Lajoice's] cell . . . to ask him what his problem was,” with the intention of “confront[ing] [Lajoice] about his being rude to [Cameron]” that day and ever since Cameron turned down Lajoice's sexual proposal (Doc. 72-2 at 78:17-20, 86:14-16; see id. at 78:15-81:22, 83:6-85:11; Doc. 80-1 at 17-18, ¶¶ 43-48; Doc. 82-1 at 29-32, ¶¶ 47-52; Doc. 72-15 at 3-4); (2) Cameron presented herself at the doorway of Lajoice's cell while Lajoice was in his cell with the door open and “started to be like[,] [‘]what the fuck is your problem . . ., what's your deal?[']” (Doc. 72-14 at 17:15-17; see Doc. 80-1 at 18-19, ¶¶ 49-51; Doc. 82-1 at 32-33, ¶¶ 53-55); (3) Lajoice raised his hands and said something like, “put your fucking hands up and come fight me” (Doc. 72-14 at 17:2-3), and Cameron responded by saying, “I'm not that stupid, I'm not going to walk in your cell” (Id. at 3-4) (see Doc. 80-1 at 19-20, ¶ 52; Doc. 82-1 at 3334, ¶ 56); (4) Lajoice then “smacked” and “pulled” Cameron, and “grabbed [her] hair” (Doc. 72-2 at 95:12-14; see Doc. 72-14 at 18:12-13, 20:2-6), and Cameron “charged [Lajoice] with [her] body” in an effort to push Lajoice back into his cell (Doc. 72-2 at 98:21) and scratched Lajoice with her fingernails (Id. at 98:7-14, 99:23-25) (see Doc. 72-15 at 3-4; Doc. 80-1 at 20, ¶ 53; Doc. 82-1 at 34-35, ¶ 57); (5) as a result of the fight, Cameron suffered severe injuries (see Doc. 72-15 at 2, 4; Doc. 79-12; Doc. 81-11), and Lajoice suffered minor injuries (see Doc. 72-2 at 97:21-98:14, 99:21-100:19) (see generally Doc. 72-15 at 4; Doc. 80-1 at 20, ¶ 54; Doc. 82-1 at 35-36, ¶ 58); and (6) as a result of the altercation, Cameron received a disciplinary report charge of “Major A5 Fighting where bodily injury is attempted or carried out” (Doc. 72-19 at 2) but agreed to a modified charge of “Major B4” violation (Doc. 72-16 at 2) and waived her right to appear at a disciplinary hearing, signing a form stating that she “admitt[ed] [her] guilt and/or admitt[ed] that a preponderance of the evidence support[ed] [her] being found guilty of the Major disciplinary infraction that [she] ha[d] been accused of” (Id.), and understanding that the general nature of the disciplinary action being taken against her was for “fighting with . . . Lajoice” (Doc. 72-2 at 106:16-17) (see Doc. 80-1 at 21-23, ¶¶ 60-65; Doc. 82-1 at 36-37, ¶¶ 60-61, at 39, ¶¶ 64-69).
Although Cameron argues in her Responses to Defendants' Separate Statements that this fact is “inaccurate” (Doc. 79-1 at 18, ¶ 51; Doc. 81-1 at 16, ¶ 55), the only evidence she cites in support of that argument is her testimony in her December 28, 2015 VSP Statement (see id.). As discussed in more detail below, however, Cameron herself testified in that Statement that she at least started to say something to Lajoice before the assault occurred. (See Doc. 72-14 at 17:3-4, 15-17, 22-23.)
Cameron's testimony about what words, if any, she said to Lajoice before the physical altercation began varies. She stated in her 2020 deposition and in her 2015 statement to the Vermont State Police (VSP) that she “didn't get to really say anything” to Lajoice. (Doc. 72-2 at 78:20-21; see id. at 79:24-25, 102:15-16; see Doc. 72-14 at 16:15-19, 17:6-12.) However, she also stated in her 2020 deposition that she “wanted to talk to [Lajoice] about [the altercation earlier that day]” (Doc. 72-2 at 81:11-12), and that she “was starting to say, to ask [Lajoice] what his problem was” (Id. at 79:25-80:1 (emphasis added)); and in her 2015 VSP statement that she “started to be like [‘]what the fuck is your problem; like . . . what's your deal?[']” (Doc. 72-14 at 17:15-17 (emphasis added)). When asked if the words “what the fuck is your problem”/“what's your deal” “actually c[a]me out” of Cameron's mouth, she replied: “No,” but then she stated: “I can't remember like what word it, . . . stopped. Like I was in the middle of a sentence.” (Id. at 17:19-23 (emphases added).) Cameron also stated in the VSP statement- despite her other testimony that she did not say anything before Lajoice assaulted her-that after Lajoice told her to put her hands up and fight him, she “said . . . [,] [‘]I'm not that stupid, I'm not going to walk in your cell['].” (Id. at 3-4 (emphasis added).)
According to an Incident Report on the date of the Cameron/Lajoice fight, Cameron stated she went to Lajoice's cell to confront him, and “[o]nce [she was] in [Lajoice's] cell,” she “told [him] if he ‘did anything like that again[,] they're fighting.'” (Doc. 72-15 at 3 (emphasis added).) According to the Report, as a nurse was cleaning Cameron's wounds, Cameron again stated that “she confronted [Lajoice] in his cell to inform him that if [an incident like the earlier one] happened again[,] they may fight.” (Id.) Lajoice was also asked about the incident, and he stated that Cameron “entered his cell and began to yell at him regarding the incident earlier” and then attacked him, at which point Lajoice “attempted to defend himself.” (Id. (emphasis added).) Considering all the information from staff involved and both inmate accounts on the date of the incident, the Report concludes: “it appears []Cameron entered []La[j]oice's cell to confront him over a perceived insult[,] and the two began to fight.” (Id.; see Doc. 80-1 at 20-21, ¶ 55; Doc. 82-1 at 36, ¶ 59.) Although this evidence is the most contemporaneous to the time of the fight, it cannot be considered on summary judgment because the relevant statements were made by an officer who did not observe or otherwise have personal knowledge of the incident. While “[i]t is well established that entries in a police report which result from the officer's own observations and knowledge may be admitted,” “statements made by third persons under no business duty to report may not.” Parsons v. Honeywell, Inc., 929 F.2d 901, 907 (2d Cir. 1991) (internal quotation marks omitted); see Petschauer v. United States, 13-CV-6335 (NGG) (VMS), 2016 WL 1271035, at *4 (E.D.N.Y. Mar. 29, 2016) (holding that when the contents of a report are based on hearsay, the content requires its own exception in order to be deemed admissible).
As a general rule, courts may not discredit a plaintiff's deposition testimony on a motion for summary judgment because the assessment of credibility is reserved for the jury. Fincher v. Depository Tr. & Clearing Corp., 604 F.3d 712, 725-26 (2d Cir. 2010). There is an exception, however, in “the rare circumstance where the plaintiff relies almost exclusively on his own testimony, much of which is contradictory and incomplete.” Id. (quoting Jeffreys v. City of N.Y., 426 F.3d 549, 554 (2d Cir. 2005)); see Jeffreys, 426 F.3d at 555 (affirming dismissal of § 1983 excessive force suit on summary judgment where plaintiff's testimony was “largely unsubstantiated by any other direct evidence” and “so replete with inconsistencies and improbabilities that no reasonable juror would undertake the suspension of disbelief necessary to credit [it]” (internal quotation marks omitted)); D'Amico v. City of N.Y., 132 F.3d 145, 149 (2d Cir. 1998) (holding that nonmoving party on summary judgment “may not rely on mere conclusory allegations nor speculation, but instead must offer some hard evidence showing that its version of the events is not wholly fanciful”). Cameron's testimony that she did not say anything to Lajoice before the assault began is inconsistent with her other testimony, unsubstantiated by any direct evidence, and improbable. Regarding the consistency factor, as detailed above, Cameron has inconsistently testified that she did not say anything, that she started to say something, that she posed a question (“what the fuck is your problem, what's your deal?”), and that she made an entire statement (“I'm not that stupid, I'm not going to walk in your cell”).
Given Cameron's conflicting testimony and the lack of any other evidence supporting Cameron's claim on this issue, no reasonable jury would believe that Cameron said nothing when she stood outside Lajoice's cell before the assault occurred. Although there may be a dispute about whether Cameron was able to make a complete statement in that moment, that fact is not material. Despite Lajoice ultimately assaulting Cameron, the undisputed material facts demonstrate that Cameron instigated the fight. Cameron exited her cell immediately after she and Lajoice had been separated due to an earlier altercation and initiated a hostile exchange with Lajoice, saying something to the effect of “what the fuck is your problem?,” intending to confront Lajoice about that altercation as well as about Lajoice's generally rude behavior toward Cameron. The fight could have been avoided had Cameron either stayed in her cell, walked by Lajoice's cell without stopping in the doorway, or contacted prison staff and advised that she required protection from Lajoice. Cameron was issued a major disciplinary violation after the fight, and she signed a form indicating that she understood the violation was based on her participation in the fight with Lajoice.
An inmate cannot initiate a fight and then fault prison officers and supervisors for failing to protect her from the fight. See, e.g., Rosenblum, 2021 WL 933750 at *12 n.18 (“An inmate who walks down the jail tier looking for a fight with celled inmates, and who initiates or voluntarily enables said fight, cannot properly maintain a claim that jail officials failed to protect [him] from the consequences of that fight.”). The undisputed facts demonstrate that Cameron chose to expose herself to the risk of harm; her own conduct is a superseding cause of the injuries she suffered. No reasonable juror could conclude that the deliberate indifference of any Defendant was the proximate cause of the harm Cameron suffered as a result of her fight with Lajoice.
VI. Remaining Issues
Given the above findings, the Court does not address Defendants' argument that Heck v. Humphrey, 512 U.S. 477 (1994) precludes Cameron from arguing that the injuries she sustained as a result of Lajoice's attack were not due to her own voluntary conduct. (See Doc. 71 at 2021; Doc. 78 at 22-24; Doc. 82 at 8.)
Furthermore, the Court finds that there is no support for Cameron's argument that Defendants' alleged failure to follow and enforce the Prison Rape Elimination Act (PREA), 42 U.S.C. § 15601 et seq., and DOC policies, establishes Defendants' deliberate indifference to a substantial risk of harm to Cameron. (See Doc. 79 at 2-4, ¶¶ 6-20, at 7, ¶¶ 40-41; Doc. 81 at 46, ¶¶ 17-30, at 8-9, ¶¶ 43-44.) While conceding that no Second Circuit case supports this argument, Cameron cites Sixth Circuit cases for the proposition that “a plaintiff may state a viable claim for deliberate indifference by a warden by alleging that he abandoned specific duties of his position, such as adopting and implementing PREA-compliant procedures, and that his failure to carry out these duties resulted directly in a violation of the plaintiff's Eighth Amendment right.” (Doc. 79 at 7, ¶ 41; Doc. 81 at 9, ¶ 44 (citing Taylor v. Mich. Dep't of Corr., 69 F.3d 76, 81 (6th Cir. 1995); McCracken v. Haas, 324 F.Supp.3d 939, 952 (E.D. Mich. 2018)).)
Not only does Second Circuit law not support Cameron's DOC/PREA policy argument, the cited Sixth Circuit cases are factually distinguishable. In Taylor, a prison warden was accused of failing to take reasonable steps to ensure that a diminutive inmate with “youthful[-]looking features,” mental disabilities, and a seizure disorder was not transferred to a facility where there was a substantial risk of serious harm. Specifically, the inmate was transferred to a minimum security work camp where he shared a “dormitory[-]style barracks” with sixty other inmates. Taylor, 69 F.3d at 78. Soon after his transfer, the inmate was raped by another inmate. Id. The Sixth Circuit explained that the defendant warden “had responsibility for reviewing and approving all transfers of prisoners . . ., and it was his responsibility to implement procedures that would protect vulnerable inmates [like the plaintiff] from dangerous transfers.” Id. at 80. The court further noted that the warden's own deposition testimony “showed that he was aware of and at least acquiesced in the conduct of his subordinates in approving transfers without adequately reviewing the inmate's record.” Id. at 81. Therefore, “[i]n Taylor, it was the defendant's actual performance of his job function (approving inmate transfers despite knowing that inmate files were not reviewed prior to transfers) that resulted in a direct injury to the plaintiff.” Essex v. County of Livingston, 518 Fed.Appx. 351, 355 (6th Cir. 2013). Further, the warden in Taylor received a copy of a letter that “detailed the results of an investigation of prison conditions [throughout the State] subject[ing] the inmates to grievous harm . . . [including] inadequate security provided to inmates against physical and sexual assault, other violence, and extortion.” Taylor, 69 F.3d at 83-84 (emphasis added) (internal quotation marks omitted). The court therefore found that the warden “arguably knew about the problem of widespread sexual assaults,” and he “knew that the camp[] [where plaintiff was placed was] less structured than the prisons and that conditions of confinement were more open in the camp['s] barracks-style lodging.” Id. at 84. On these established facts, the court concluded that “a reasonable jury could have concluded that [the warden] knew that the risk of sexual assault was inherently greater at the camp.” Id.; see Winkler v. Madison Cnty., 893 F.3d 877, 898 (6th Cir. 2018) (holding that prison supervisor may be liable under § 1983 only if “he abandon[s] the specific duties of his position . . . in the face of actual knowledge of a breakdown in the proper workings of the department,” and “some execution of the supervisors' job function result[s] in [the p]laintiff's injury” (alterations and omission in original) (internal quotation marks omitted)).
By contrast, there is no evidence in this case establishing that any Defendant had knowledge of physical or sexual assaults occurring in the Medical Unit at SSCF. Nor is there evidence establishing that any Defendant had transfer or cell-assignment responsibilities similar to the warden in Taylor, or was similarly aware of any inappropriate conduct by his or her subordinates in approving Cameron's transfer to SSCF or placement in the Medical Unit. As noted above, the DOC's Central Office made all prison placement decisions, and none of the Defendants was responsible for specific cell assignments at SSCF. Even if Defendants were responsible for Cameron's prison placement or cell assignment, Cameron still would have to show that some personal act of Defendants resulted in a constitutional violation, i.e., that Defendants were aware of wrongful conduct by a subordinate related to Cameron's placement or cell assignment. There is simply no evidence of that. See, e.g., Morgan v. Kentucky, Civil Action No. 3:17-CV-474-CHB, 2021 WL 3684249, at *5 (W.D. Ky. Aug. 19, 2021) (finding no evidence that deputy commissioner defendant, “unlike the warden in Taylor, abandoned his duties in the face of actual knowledge of a breakdown in the proper workings of the department” (internal quotation marks omitted)).
Furthermore, notwithstanding Cameron's reference to specific DOC and PREA policies, she has not shown how any Defendant failed to properly enforce or administer the policies in relation to the claim at issue in this case. Cameron cites portions of Defendants' depositions in support of her argument, but that testimony merely discusses the existence of, and Defendants' awareness of, the policies. There is no testimony that any policies were violated to Cameron's detriment. (See, e.g., Doc. 78-4 at 16-20, 52-53; Doc. 78-5 at 50-67.) Moreover, Rutherford mentions in his deposition testimony that there was a specific unnamed individual (not Rutherford and presumably not one of the other Defendants) who was charged with directing the PREA administration and enforcement at SSCF. (See Doc. 78-5 at 66:14-16 (“[O]ur PREA director is often called upon to be familiar with [LGBTQI] issues and represent some of those interests.”); see id. at 65:19-22.)
Finally, prison policies and regulations are “not designed to confer rights on inmates,” but are “primarily designed to guide correctional officials in the administration of a prison.” Sandin v. Conner, 515 U.S. 472, 481-82 (1995); see Furnace v. Sullivan, 705 F.3d 1021, 1027 (9th Cir. 2013) (“Prison regulations are drafted to further institutional safety and other prudential considerations, rather than being drawn to perfectly trace the contours of prisoners' constitutional rights.”); Ross v. Willis, No. 16 Civ. 6704 (PAE) (KNF), 2021 WL 3500163, at *19 (S.D.N.Y. Aug. 9, 2021) (“The DOC policies on which [plaintiff's] argument rests . . . do not provide [plaintiff] with a clearly established statutory or constitutional right.”); Turner v. Ralkey, CASE NO. 3:20-CV-5472-TL-DWC, 2022 WL 18460747, at *13 (W.D. Wash. Apr. 26, 2022) (finding that, although “[prison officials'] response [to inmate's mental health emergency] may not have been in compliance with DOC policy . . . [,] that does not mean they were deliberately indifferent to the risk of harm to plaintiff”), report and recommendation adopted, 2023 WL 401931 (Jan. 25, 2023).
Regarding the PREA in particular, “[t]here is no private right of action for inmates to sue prison officials for non-compliance with PREA.” Dehaney v. Chagnon, No. 3:17-CV-00308 (JAM), 2017 WL 2661624, at *4 (D. Conn. June 20, 2017). This Court has similarly held that the PREA confers no private right of action. See Breer v. Medor, No. 2:12-CV-53, 2013 WL 4456896, at *6 (D. Vt. Aug. 16, 2013). Rather, “[t]he PREA is intended to address the problem of rape in prison, authorizes grant money, and creates a commission to study the issue[;] [t]he statute does not grant prisoners any specific rights.” Id. (quoting Chinnici v. Edwards, No. 1:07-CV229, 2008 WL 3851294, at *3 (D. Vt. Aug. 12, 2008); see Crispin v. Peiri, CASE NO. 3:21-cv-00475 (KAD), 2023 WL 2931846, at *9 (D. Conn. Apr. 13, 2023) (“[D]istrict courts have held that there is no private right of action for prisoners to sue prison officials for failure to comply with the PREA.”); Chao v. Ballista, 772 F.Supp.2d 337, 341 n.2 (D. Mass. 2011) (collecting cases and noting that “every court to address the issue” has held that the PREA does not allow a private cause of action); Gonzaga Univ. v. Doe, 536 U.S. 273, 280 (2002) (“[U]nless Congress speak[s] with a clear voice, and manifests an unambiguous intent to confer individual rights, federal funding provisions provide no basis for private enforcement by § 1983.” (second alteration in original) (internal quotation marks omitted)).
Accordingly, Cameron cannot maintain an independent constitutional claim based on Defendants' alleged violations of DOC or PREA policies.
Conclusion
For these reasons, I recommend GRANTING Defendant Potanas's Motion for Summary Judgment (Doc. 71) and GRANTING Defendants Menard and Rutherford's Motion for Summary Judgment (Doc. 78). I therefore recommend entering judgment in favor of Defendants and against Cameron.
Any party may object to this Report and Recommendation within fourteen days after service thereof, by filing with the Clerk of the Court and serving on the Magistrate Judge and all parties, written objections that shall specifically identify those portions of the Report and Recommendation to which objection is made and the basis for such objections. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(2); L.R. 72(c). Failure to timely file such objections “operates as a waiver of any further judicial review of the magistrate's decision.” Caidor v. Onondaga Cnty., 517 F.3d 601, 604 (2d Cir. 2008) (quoting Small v. Sec'y of Health & Hum. Servs., 892 F.2d 15, 16 (2d Cir. 1989)).