Opinion
Civil Action No. 9:14-CV-0916 (MAD/DEP)
02-26-2015
JOHNATHAN JOHNSON, Plaintiff, v. BRIAN GAGNON, et al., Defendants.
APPEARANCES: FOR PLAINTIFF: JOHNATHAN JOHNSON, Pro Se 89-A-1042 Upstate Correctional Facility P.O. Box 2001 Malone, NY 12953 FOR DEFENDANTS: HON. ERIC T. SCHNEIDERMAN New York State Attorney General Main Place Tower 350 Main Street, Suite 300A Buffalo, NY 14202 DAVID J. SLEIGHT, ESQ. Assistant Attorney General
APPEARANCES: FOR PLAINTIFF: JOHNATHAN JOHNSON, Pro Se
89-A-1042
Upstate Correctional Facility
P.O. Box 2001
Malone, NY 12953
FOR DEFENDANTS: HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
Main Place Tower
350 Main Street, Suite 300A
Buffalo, NY 14202
DAVID J. SLEIGHT, ESQ.
Assistant Attorney General
DAVID E. PEEBLES U.S. MAGISTRATE JUDGE
REPORT AND RECOMMENDATION
Pro se plaintiff Johnathan Johnson, a New York State prison inmate who is ineligible for in forma pauperis ("IFP") status in this court pursuant to the three strikes provision of 28 U.S.C. § 1915(g), commenced this action in state court asserting civil rights claims under 42 U.S.C. § 1983 against various employees of the New York State Department of Corrections and Community Supervision ("DOCCS"). Generally speaking, plaintiff's complaint alleges that the defendants tampered with his food, searched his cell, destroyed legal papers, confiscated his prescription medications, and assaulted him in retaliation for having filed grievances concerning the conditions of his confinement.
On May 7, 2012, Senior District Judge Norman A. Mordue found that plaintiff had accumulated three strikes for purposes of section 1915(g) prior to filing his complaint in the matter. Johnson v. Rock, No. 12-CV-0019, Dkt. No. 7 at 5-6 (N.D.N.Y. filed Jan. 5, 2012) (Mordue, J.).
Following a series of procedural interventions by the assigned state court judge, defendants removed the action to this court. Defendants have since moved to dismiss plaintiff's claims against certain of the named defendants, arguing that plaintiff's complaint fails to allege the requisite personal involvement of those selected individuals in the constitutional violations asserted. Plaintiff opposes defendants' dismissal motion and has moved to remand the action to state court. For the reasons set forth below, I recommend that plaintiff's remand motion be denied and defendants' motion to dismiss be granted. I. BACKGROUND
In their motion, defendants also request that the court stay discovery in this action pending disposition of the motions. Given that this case is in its procedural infancy, and the fact that the court has not yet issued its standard Rule 16 scheduling order, the motion will be granted.
In light of the procedural posture of this case, the following recitation is drawn principally from plaintiff's complaint, the contents of which have been accepted as true for purposes of the pending motion. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) ("[W]hen ruling on a defendant's motion to dismiss, a judge must accept as true all of the factual allegations contained in the complaint." (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)); see also Cooper v. Pate, 378 U.S. 546, 546 (1964).
Plaintiff is a prison inmate currently being held in the custody of the DOCCS at the Upstate Correctional Facility ("Upstate"), located in Malone, New York. Dkt. No. 4 at 2. In his complaint, plaintiff alleges that between January and April of 2013, while he was confined at Upstate, defendants Daniel Dumas, a corrections officer, and Brian Gagnon, a corrections sergeant, continuously retaliated against him for the filing of grievances by interfering with his doctor-ordered meals, conducting cell searches, and destroying legal court documents. Id. at 3. According to his complaint, the conduct continued with an incident on April 27, 2013, during which defendant Dumas removed plaintiff's meat serving from his dinner, an act allegedly condoned by defendant Gagnon. Id. The interference with plaintiff's meals continued on the following day when defendant Dumas, defendant Beane, also a corrections officer, and another unidentified prison guard again removed meat from plaintiff's lunch and dinner trays. Id. at 3-4. On April 29, 2013, plaintiff filed a grievance, designated as UST 51878-13, complaining of the food tampering and other retaliatory conduct by defendants Dumas, Gagnon, and Beane. Id. at 4. Because the grievance alleged misconduct on the part of corrections officials, it was forwarded to the office of defendant David Rock, the Upstate Superintendent, for investigation. Id. Plaintiff alleges that defendants Rock, Bellnier, Haponik, Annucci, Boll, Koenigsmann, and McKoy became aware of the grievance and "failed to act and take corrective action." Id. at 8-9.
On April 27, 2013, plaintiff's cell was searched by defendants Wendy Seymour and Francis Jarvis, both of whom are corrections officers. Dkt. No. 4 at 6. During the course of that search, defendants Seymour and Jarvis confiscated plaintiff's prescription medication and disrupted his court documents by removing them from envelopes and discarding them on the floor of plaintiff's cell. Id. While the search was being conducted, plaintiff was placed in restraints and allegedly assaulted by defendants Dumas, Gagnon, Richard Liebfred, another corrections officer, and John Tatro, a corrections lieutenant. Id. at 5. Following the incident, plaintiff was taken to Upstate's hospital for evaluation, at which time it was determined that stitches were needed to close a wound to his face and that he had suffered a fractured jaw. Id. at 6.
On or about May 2, 2013, plaintiff was interviewed concerning the use-of-force incident by Corrections Lieutenant Jerry Laramay, another named defendant. Dkt. No. 4 at 6-7. Plaintiff was scheduled to be transported to an outside hospital facility that same day for repair of his fractured jaw. Id. at 7. Defendants Bryan Clark and Brian Grant, two corrections officers who, plaintiff contends, were involved in a prior assault upon him, were assigned to escort plaintiff to the outside medical facility. Id. at 7. Although all of the circumstances surrounding this particular allegation are not clear from plaintiff's complaint, plaintiff contends that, because defendants Clark and Grant were assigned to escort him to an outside medical facility by defendants Rock, Bishop, and Uhler, his "jaw remains fracture[d]." Id.
Following the incidents on April 27, 2013, prison guards continued to tamper with plaintiff's food. Dkt. No. 4 at 8. On May 2, 2013, defendants Dumas and Jarvis removed food from plaintiff's meal tray, and he was denied his lunch tray altogether by defendants Gagnon and Bishop. Id. at 8. Defendant Dumas again tampered with plaintiff's breakfast tray on May 8, 2013. Id. Defendant Gagnon was notified of this last incident, but failed to take any action. Id.
II. PROCEDURAL HISTORY
Plaintiff commenced this action in New York State Supreme Court, Franklin County, on October 18, 2013. Dkt. No. 1-1; Dkt. No. 4. Named as defendants in plaintiff's complaint are Corrections Sergeant Brian Gagnon; Corrections Officers Daniel Dumas, Brian Grant, Bryan Clark, Francis Jarvis, Wendy Seymour, Richard Liebfred, and Aaron Beane; Corrections Lieutenants John Tatro and Jerry Laramay; Corrections Captain Reginald Bishop; Deputy Superintendent Donald Uhler; Superintendent David Rock; and Joseph Bellnier, Gayle Haponik, Anthony Annucci, Maureen Boll, Carl Koenigsmann, and Jeff McKoy, all of whom are identified by plaintiff as "Deputy DOCCS Commissioners." Dkt. No. 4.
On October 24, 2013, the matter was assigned to Supreme Court Justice John T. Ellis. Dkt. No. 1-2 at 2. Following that assignment, Justice Ellis issued a decision, dated November 4, 2013, granting plaintiff leave to proceed as a poor person pursuant to New York Civil Practice Law and Rules ("CPLR") § 1101. Dkt. No. 1-3 at 2.
Defendants Beane, Bishop, Clark, Gagnon, Jarvis, and Uhler interposed an answer to plaintiff's complaint on November 27, 2013. Dkt. No. 1-4 at 2-6. That was followed by the filing of an answer, on December 5, 2013, on behalf of defendants Dumas, Seymour, and Tatro, Dkt. No. 1-5 at 2-5, and another, on December 6, 2013, on behalf of defendants Annucci, Bellnier, Boll, Haponik, Laramay, and Rock. Dkt. No. 1-6 at 2-5. On December 23, 2013, prior to the removal of the action, plaintiff requested the entry of default judgment against certain defendants who, at that time, had yet to appear in the action. Dkt. No. 1-7 at 2-6.
On December 16, 2014, plaintiff served the defendants with written discovery demands, including interrogatories and requests for the production of documents. Dkt. No. 1-9 at 38-43. A subsequent motion brought by the defendants to stay discovery and for a protective order, Dkt. No. 1-9, was granted by decision and order issued by Justice Ellis on April 21, 2014. Dkt. No. 1-12. On the same date, Justice Ellis issued a separate decision and order denying plaintiff's motion for the entry of default judgment against defendants Koenigsmann, McCoy, and Liebfred. Dkt. No. 1-11. In this second decision, Justice Ellis concluded that plaintiff had failed to present proper proof of service of the summons and complaint upon the three defendants named in his motion. Id. at 7. Justice Ellis also specifically advised plaintiff that, by simply mailing a summons and complaint to a defendant, he did not satisfy the service requirements of CPLR § 308(2). Id.
Following the issuance of the court's order denying his motion for default judgment, plaintiff applied, ex parte, for permission to serve the defendants in this action by mail. Dkt. No. 1-13. On June 17, 2014, Justice Ellis granted the motion, permitting plaintiff to serve the defendants in the action by mail at their places of employment, with a further directive that the summons and complaint, together with a copy of the court's decision, also be mailed to the Office of the New York State Attorney General. Id. In accordance with that order, on June 24, 2014, plaintiff effectuated service of process on defendants Liebfred, Koenigsmann, and McCoy. Dkt. No. 1 at 4; Dkt. No. 1-14.
Following service, the action was removed to this court on July 24, 2014. Dkt. No. 1. All of the defendants, with the exception of Grant, who has neither been served nor otherwise appeared in the action, subsequently moved, on July 30, 2014, to dismiss plaintiff's claims asserted against twelve named defendants pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Dkt. No. 2. Defendants contend that plaintiff's complaint fails to adequately allege the requisite personal involvement of those certain individuals in the conduct giving rise to the constitutional violations asserted. Id. at 2. On or about August 6, 2014, plaintiff submitted papers in opposition to defendants' motion and cross-moved for an order remanding the case to state court. Dkt. Nos. 6, 7. Defendants since responded in opposition to plaintiff's motion, Dkt. No. 10, and have submitted a reply in further support of their motion to dismiss. Dkt. No. 9. The parties' cross-motions, which are now fully briefed, have been referred to me for the issuance of a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Northern District of New York Local Rule 72.3(c). See Fed. R. Civ. P. 72(b).
III. DISCUSSION
A. Motion to Remand
In his remand motion, plaintiff asserts that the action was improvidently removed to this court. See generally Dkt. No. 7. Plaintiff does not challenge this court's jurisdiction to entertain his constitutional claims, which are asserted pursuant to 42 U.S.C. §1983. Id. Instead, his argument centers upon the timing of the notice of removal relative to service upon the various named defendants. Id.
Plaintiff correctly notes that state courts have jurisdiction to adjudicate claims under 42 U.S.C. § 1983. Dkt. No. 7 at 6; see Haywood v. Drown, 556 U.S. 729, 731 (2009) ("In our federal system of government, state as well as federal courts have jurisdiction over suits brought pursuant to 42 U.S.C. § 1983[.]"). This concurrent jurisdiction, however, does not preclude removal because the removal provisions of 28 U.S.C. § 1441 et seq. give defendants the right to have plaintiff's section 1983 claims adjudicated in a federal district court. See Dorsey v. City of Detroit, 858 F.2d 338, 351 (6th Cir. 1988) ("The weight of judicial authority supports the conclusion that a Congressional grant of concurrent jurisdiction in a statute does not imply that removal is prohibited." (quotation marks omitted)); Pace v. Hunt, 847 F. Supp. 508, 509-10 (S.D. Miss. 1994) ("[T]he removal statute would be eviscerated if actions such as [those arising under section 1983] were remanded simply because such courts have concurrent jurisdiction.").
The statute that addresses the timing of removal notices provides, in relevant part, that
[t]he notice of removal of the civil action or proceeding shall be filed within 30 days after receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based[.]28 U.S.C. § 1446(b). Citing Mermelstein v. Maki, 830 F. Supp. 180 (S.D.N.Y. 1993), plaintiff asserts that the thirty-day period for removal under section 1446(b) is properly measured from the date upon which the first defendant received the initial pleading. Dkt. No. 7 at 7.
Prior to an amendment in 2011 to section 1446, some courts held that, in a case involving multiple defendants, the removal period was properly measured from receipt of the initial pleading by the first defendant. Mermelstein, 830 F. Supp. at 183. Others, however, rejected that position in favor of a rule that measured the removal period from the date of service upon the removing defendant. See Piacente v. State Univ. of N.Y. at Buffalo, 362 F. Supp. 2d 383, 385-86 (W.D.N.Y. 2004) (noting a split among the circuits regarding the rules governing removal). The 2011 amendment to section 1446 resolved any ambiguity by providing that "[e]ach defendant shall have 30 days after receipt by or service on that defendant of the initial pleading or summons described in paragraph (1) to file the notice of removal." 28 U.S.C. § 1446(b)(2)(B); Pietrangelo v. Alvas Corp., 686 F.3d 62, 63 (2d Cir. 2012).
Plaintiff appears to argue that each defendant effectively "received" the summons and complaint when it was mailed to him or her, even though, as Justice Ellis advised, mere mailing did not satisfy the service requirements of the CPLR. Dkt. No. 1-11 at 7; CPLR § 308(2). That argument, however, was laid to rest by the Supreme Court in its decision in Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344 (1999). In that case, the Court concluded that mere receipt of a complaint, without formal service, does not trigger the thirty-day removal period under section 1446. Murphy Bros., 526 U.S. at 355-56; accord, Pietrangelo, 686 F.3d at 65.
Ultimately, plaintiff's subsequent mailing of the summons and complaint to each defendant was deemed to be appropriate as an alternative method of service under CPLR § 308(5) by court order issued by Justice Ellis. Dkt. No. 1-13.
In this instance, because defendants properly filed a notice of removal within thirty days of service upon defendants Leibfred, Koenigsmann, and McKoy of the summons and complaint pursuant to the state court's order, and all defendants previously served and appearing in the action consented to the removal, I recommend that plaintiff's motion to remand this action to state court be denied. Dkt. No. 1 at 4; Dkt. No. 1-15.
Because defendant Grant has not yet been served, his consent is not necessary for removal. See 28 U.S.C. 1446(b)(2)(A) (requiring only those "defendants who have been properly joined and served" to "join in or consent to the removal of the action"). In addition, the fact that plaintiff is barred from proceeding in federal court in forma pauperis pursuant to 28 U.S.C. § 1915(g) does not mandate remand. Lloyd v. Benton, 686 F.3d 1225, 1227-28 (11th Cir. 2012); Lisenby v. Lear, 674 F.3d 259, 262-63 (4th Cir. 2012); see also Johnson v. Rock, No. 14-CV-0815, 2014 WL 7410227, at *5 (N.D.N.Y. Dec. 31, 2014) (Hurd, J., adopting report and recommendation by Baxter, M.J.).
B. Defendants' Dismissal Motion
In their motion, defendants seek dismissal of plaintiff's claims against defendants Rock, Bishop, Uhler, Laramay, Bellnier, Haponik, Annucci, Boll, Koenigsmann, McCoy, Clark, and Grant based upon the lack of any allegations in the plaintiff's complaint plausibly suggesting their personal involvement in any of the constitutional claims asserted. Dkt. No. 2-1 at 2-5.
1. Governing Standard
A motion to dismiss a complaint, brought pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, calls upon a court to gauge the facial sufficiency of that pleading using a standard which, though unexacting in its requirements, "demands more than an unadorned, the-defendant-unlawfully-harmed me accusation" in order to withstand scrutiny. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 554, 555 (2007)). Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, "a pleading must contain a 'short and plain statement of the claim showing that the pleader is entitled to relief.'" Iqbal, 556 U.S. 677-78 (quoting Fed. R. Civ. P. 8(a)(2)). While modest in its requirements, that rule commands that a complaint contain more than mere legal conclusions. See id. at 679 ("While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.").
In deciding a Rule 12(b)(6) dismissal motion, the court must accept the material facts alleged in the complaint as true and draw all inferences in favor of the non-moving party. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citing Twombly, 550 U.S. at 555-56); see also Cooper v. Pate, 378 U.S. 546, 546 (1964); Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir. 2003); Burke v. Gregory, 356 F. Supp. 2d 179, 182 (N.D.N.Y. 2005) (Kahn, J.). The tenet that a court must accept as true all of the allegations contained in a complaint does not apply, however, to legal conclusions. Iqbal, 556 U.S. at 678.
To withstand a motion to dismiss, "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570); see also Ruotolo v. City of N.Y., 514 F.3d 184, 188 (2d Cir. 2008). As the Second Circuit has observed, "[w]hile Twombly does not require heightened fact pleading of specifics, it does require enough facts to 'nudge plaintiffs' claims across the line from conceivable to plausible.'" In re Elevator Antitrust Litig., 502 F.3d 47, 50 (2d Cir. 2007) (quoting Twombly, 550 U.S. at 570) (alterations omitted).
When assessing the sufficiency of a complaint against this backdrop, particular deference should be afforded to a pro se litigant, whose complaint merits a generous construction by the court when determining whether it states a cognizable cause of action. Erickson, 551 U.S. at 94 ("'[A] pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.'" (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)) (citation omitted)); Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008) ("[W]hen a plaintiff proceeds pro se, a court is obliged to construe his pleadings liberally." (quotation marks and alterations omitted)); Kaminski v. Comm'r of Oneida Cnty. Dep't of Soc. Servs., 804 F. Supp. 2d 100, 104 (N.D.N.Y. 2011) (Hurd, J.) ("A pro se complaint must be read liberally.").
2. Analysis
Defendants' dismissal motion is centered upon the sufficiency of the allegations contained in plaintiff's complaint with respect to the personal involvement of defendants Rock, Bishop, Uhler, Laramay, Bellnier, Haponik, Annucci, Boll, Koenigsmann, McKoy, Clark, and Grant. Dkt. No. 2-1 at 2-5. It is well-established that "[p]ersonal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under [section] 1983." Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (citing Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir. 1991); McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir. 1977)). As the Supreme Court has noted, a defendant may only be held accountable for his actions under section 1983. See Iqbal, 556 U.S. at 683 ("[P]etitioners cannot be held liable unless they themselves acted on account of a constitutionally protected characteristic."). To prevail on a section 1983 cause of action against an individual, a plaintiff must show "a tangible connection between the acts of a defendant and the injuries suffered." Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986). "To be sufficient before the law, a complaint must state precisely who did what and how such behavior is actionable under law." Hendrickson v. U.S. Attorney Gen., No. 91-CV-8135, 1994 WL 23069, at *3 (S.D.N.Y. Jan. 24, 1994).
Copies of all unreported decisions cited in this document have been appended for the convenience of the pro se plaintiff.
Although the rule is no different with regard to individuals sued based on their role as a supervisor, section 1983 does not provide for liability based on respondeat superior. Richardson v. Goord, 347 F.3d 431, 435 (2d Cir. 2003); see also Wright, 21 F.3d at 501. The Second Circuit has held that to establish responsibility on the part of a supervisory official for a civil rights violation, a plaintiff must demonstrate that the individual (1) directly participated in the challenged conduct; (2) after learning of the violation through a report or appeal, failed to remedy the wrong; (3) created or allowed to continue a policy or custom under which unconstitutional practices occurred; (4) was grossly negligent in managing the subordinates who caused the unlawful event; or (5) failed to act on information indicating that unconstitutional acts were occurring. Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995); see also Richardson, 347 F.3d at 435.
Subsequent to issuance of the Second Circuit's decision in Colon, the Supreme Court addressed the question of supervisory liability in its decision in Iqbal v. Hasty, 490 F.3d 143, 152-53 (2d Cir. 2007), rev'd on other grounds sub nom. Ashcroft v. Iqbal, 556 U.S. 554 (2009). Although the issue has been discussed in several relatively recent decisions, the Second Circuit has yet to squarely address the impact of Iqbal upon the categories of supervisory liability addressed in Colon. See, e.g., Hogan v. Fischer, 738 F.3d 509, 519 n.3 (2d Cir. 2013) ("We express no view on the extent to which [Iqbal] may have heightened the requirements for showing a supervisor's personal involvement with respect to certain constitutional violations[.]" (citation omitted)); see also Reynolds v. Barrett, 685 F.3d 193, 206 n.14 (2d Cir. 2012) ("Iqbal has, of course, engendered conflict within our Circuit without the continuing vitality of the supervisory liability test set forth in [Colon,] . . . but the fate of Colon is not properly before us[.]").
In this instance, turning first to defendants Clark and Grant, the allegations contained in plaintiff's complaint are limited. It is alleged that, on May 2, 2013, those individuals were assigned to transport Johnson to an outside facility to have his jaw repaired. Dkt. No. 4 at 7. Although plaintiff further alleges that defendants Clark and Grant are responsible for the fact that his jaw is not currently repaired, there are no allegations in the complaint that explain how or why they are responsible. Id. Even liberally construed, plaintiff's complaint fails to allege facts plausibly suggesting that defendants Clark and Grant violated plaintiff's constitutional rights. Accordingly, I recommend dismissal of plaintiff's claims against them.
As was discussed above in Part III.A. of this report, defendant Grant has not yet been served or appeared in the action.
Relatedly, plaintiff contends that defendants Rock, Bishop, and Uhler are responsible, based on their roles as supervisors, for acting with gross negligence in assigning defendants Clark and Grant to transport plaintiff on May 2, 2013. Dkt. No. 4 at 7; Dkt. No. 6 at 5. Because I have concluded that the complaint fails to plausibly allege the requisite personal involvement of defendants Clark and Grant, defendants Rock, Bishop, and Uhler cannot be held liable in their supervisory capacities for the absence of a constitutional violation committed by their subordinates. See, e.g., Jacoby v. Conway, No. 10-CV-0920, 2013 WL 1559292, at *12 (W.D.N.Y. Apr. 10, 2013) ("[S]upervisory defendants cannot be held liable for inadequate training or supervision when the officers involved in the incident do not violate plaintiff's constitutional rights. Absent a violation, plaintiff's allegations against [the superintendent and deputy superintendent] also fails.").
To the extent plaintiff has asserted a constitutional claim against defendant Bishop based on an allegation that he denied plaintiff a single meal on May 2, 2013, I recommend it be dismissed. See Konovalchuk v. Cerminaro, No. 11-CV-1344, 2014 WL 272428, at *21 (N.D.N.Y. Jan. 24, 2014) (D'Agostino, J., adopting report and recommendation by Hummel, M.J.) (dismissing the plaintiff's conditions of confinement claim where the plaintiff alleged he missed two consecutive meals during a transport); McDonald v. Rivera, No. 06-CV-0410, 2008 WL 268345, at *8 (N.D.N.Y. Jan. 30, 2008) (Kahn, J., adopting report and recommendation by Peebles, M.J.) (dismissing the plaintiff's conditions of confinement claim where he alleged he was denied one meal and participation in a single recreation period).
Plaintiff also alleges that defendant Laramay is responsible for violating his constitutional rights, but the complaint fails to plausibly allege a basis for any claim against this defendant. Plaintiff alleges that on May 2, 2013, he was interviewed by defendant Laramay regarding the use-of-force incident that had occurred on April 27, 2013. Dkt. No. 4 at 6. In addition, plaintiff's complaint contains the following allegation involving defendant Laramay:
On May 2, 2013 after prison guard (Dumas) had broken plaintiff's jaw by kicking him in his face, Sergeant (Gagnon) permitted this prison guard (Dumas) and the other prison guard (Rock) plaintiffs [sic] had allegedly spitted upon be the escorts to remove him from the interview room. As well as Lieutenant Jerry Laramay.Id. at 7. Liberally construed, it appears plaintiff contends that defendant Laramay was partially responsible for permitting the same two corrections officers to escort plaintiff after an incident in which plaintiff allegedly spat on them. Id. Neither of the allegations involving defendant Laramay, however, plausibly suggest he violated any of plaintiff's constitutional rights. Plaintiff does not, for instance, (1) contend that defendant Laramay ignored plaintiff's complaints of the use-of-force incident on April 27, 2013, or (2) allege that he suffered a constitutional violation during the escort by defendant Dumas and another corrections officer. Absent such allegations, plaintiff's claims against defendant Laramay are also subject to dismissal for lack of personal involvement.
Finally, plaintiff's second cause of action, asserted against defendants Rock, Bellnier, Haponik, Annucci, Boll, Koenigsmann, and McKoy, is based on his allegation that they "are supervisors and are assigned pursuant to Directive 4040 (Inmate Grievance Programs), and are on the Central Office [R]eview Committee." Dkt. No. 4 at 8. Plaintiff further contends that all of those individuals were "informed of the allegations of wrong doing [sic] by the defendants at the Upstate Correctional Facility thr[ough] a[] grievance complaint (UST 51878-13) and failed to act and take corrective action." Id. at 8-9. These allegations, however, are not sufficient to plausibly suggest the personal involvement of defendants Rock, Bellnier, Haponik, Annucci, Boll, Koenigsmann, or McKoy under Colon. The grievance of which the supervisory officials were allegedly aware, grievance number UST 51878-13, was submitted on April 29, 2013, and concerned alleged retaliatory conduct by defendants Dumas, Gagnon, and Beane. Id. at 4. Plaintiff fails to allege, however, how defendants Rock, Bellnier, Haponik, Annucci, Boll, Koenigsmann, and McKoy became aware of the grievance. Instead, plaintiff conclusorily alleges that, after becoming aware of the grievance, the individuals did not take any steps to remedy the issue. This is not sufficient to plausibly suggest the personal involvement of supervisory officials.
The court is mindful of the Second Circuit's decision in Grullon v. New Haven, 720 F.3d 133, 141 (2d Cir. 2013), in which the court found error in the district court's decision to dismiss with prejudice the plaintiff's claim against the defendant-prison warden for lack of personal involvement where the plaintiff had alleged that he mailed a letter to the defendant-prison warden advising him of his conditions of confinement. Grullon, 720 F.3d at 141; see also Grullon v. City of New Haven, No. 10-CV-0776, Dkt. No. 25 at 58-6 (D. Conn. filed on May 18, 2010). The Second Circuit concluded that, "[a]t the pleading stage," inmate-plaintiffs are "entitled to have the court draw the reasonable inference" that the supervisory official received the "[l]etter, read it, and thereby became aware of the alleged conditions of which [the plaintiff] complain[s]" if the letter (or other correspondence) "contain[s] factual allegations indicating that the [it] was sent to the [supervisory official] at an appropriate address and by appropriate means[.]" Grullon, 720 F.3d at 141. In this case, however, plaintiff's complaint fails to allege any facts regarding the means by which defendants Rock, Bellnier, Haponik, Annucci, Boll, Koenigsmann, and McKoy became aware of grievance number UST 51878-13. The absence of this allegation renders it impossible to draw the "reasonable inference" that any of those individuals received the grievance and read it, as urged in Grullon.
Similarly, plaintiff's claim fails to the extent he relies on the fourth Colon prong, which provides for supervisor liability in circumstances where a supervisor was grossly negligent in managing subordinates. Dkt. No. 6 at 5; Colon, 58 F.3d at 873. In an effort to satisfy this requirement, plaintiff maintains, in opposition to defendants' motion to dismiss, as follows:
That the supervisory defendants [Rock, Bellnier, Haponik, Annucci, Boll, Koenigsmann, and McKoy] also falls under Colon-v-Coughlin (4) and (5) requirement, where through inmate grievance complaints filed by Johnson from January 2013 through April 2013, by 'grossly negligent' in supervising these Upstate subordinates whom committed the wrongful acts within the complaint.Dkt. No. 6 at 5. Even liberally construed, this conclusory allegation does not plausibly suggest defendants Rock, Bellnier, Haponik, Annucci, Boll, Koenigsmann, and McKoy acted in a manner that would demonstrate gross negligence.
C. Whether to Permit Amendment
If adopted by the assigned district judge, the recommendations set forth above would result in the dismissal of plaintiff's claims against twelve defendants based upon lack of personal involvement. The next issue to be addressed is whether the court should permit plaintiff to amend his complaint to cure the deficiencies identified in connection with the claims asserted against those individuals.
Ordinarily, a court should not dismiss a complaint filed by a pro se litigant without granting leave to amend at least once "when a liberal reading of the complaint gives any indication that a valid claim might be stated." Branum v. Clark, 927 F.2d 698, 704-05 (2d Cir.1991); see also Fed. R. Civ. P. 15(a) ("The court should freely give leave when justice so requires."); see also Mathon v. Marine Midland Bank, N.A., 875 F. Supp. 986, 1003 (E.D.N.Y.1995) (permitting leave to replead where court could "not determine that the plaintiffs would not, under any circumstances, be able to allege a civil RICO conspiracy"). Here, given the procedural history of this action, the court must determine whether plaintiff is entitled to the benefit of this general rule.
Most of the deficiencies identified in plaintiff's complaint could feasibly be cured through the inclusion of greater factual detail. Accordingly, I recommend that plaintiff be permitted to amend his complaint, if desired, to address the deficiencies identified in this report.
In the event plaintiff chooses to file an amended complaint, he is advised that the law in this circuit clearly provides that "'complaints relying on the civil rights statutes are insufficient unless they contain some specific allegations of fact indicating a deprivation of rights, instead of a litany of general conclusions that shock but have no meaning.'" Hunt v. Budd, 895 F. Supp. 35, 38 (N.D.N.Y. 1995) (McAvoy, J.) (quoting Barr v. Abrams, 810 F.2d 358, 363 (2d Cir. 1987)); Pourzandvakil v. Humphry, No. 94-CV-1594, 1995 WL 316935, at *7 (N.D.N.Y. May 22, 1995) (Pooler, J.). Therefore, in his amended complaint, plaintiff must clearly set forth the facts that give rise to the claim, including the dates, times, and places of the alleged underlying acts, and each individual who committed each alleged wrongful act. In addition, the revised pleading should allege facts demonstrating the specific involvement of each of the named defendants in the constitutional deprivations alleged in sufficient detail to establish that they were tangibly connected to those deprivations. Bass, 790 F.2d at 263. Finally, plaintiff is informed that any such amended complaint will replace the existing original complaint, and must be a wholly integrated and complete pleading that does not rely upon or incorporate by reference any pleading or document previously filed with the court. See Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir. 1994) ('It is well established that an amended complaint ordinarily supersedes the original, and renders it of no legal effect." (quotation marks omitted)).
IV. SUMMARY AND RECOMMENDATION
Addressing plaintiff's motion to remand, I conclude that this court possesses subject matter jurisdiction to entertain plaintiff's claims, and I discern no defect in the removal process warranting remand. Turning to defendants' dismissal motion, plaintiff's complaint contains allegations against various defendants who are alleged to have actively participated in the events giving rise to his claims. The allegations against some of those defendants are deficient in that they fail to allege their direct role in a constitutional deprivation. Certain other defendants are sued based on their roles as supervisors and plaintiff's contention that, through a grievance he filed on April 29, 2013, they became aware of the alleged constitutional deprivations but failed to remedy them. Plaintiff's allegations against the supervisor-defendants fail to establish their personal involvement in the violations alleged. Based upon the foregoing it is hereby respectfully
RECOMMENDED that plaintiff's motion to remand this action to state court (Dkt. No. 7) be DENIED; and it is further
RECOMMENDED that defendants' motion to dismiss the claims asserted against certain defendants in the action be GRANTED (Dkt. No. 2), and that all of plaintiff's claims against defendants Rock, Bishop, Uhler, Laramay, Bellnier, Haponik, Annucci, Boll, Koenigsmann, McKoy, Clark, and Grant be DISMISSED with leave to replead.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections must be filed with the clerk of the court within FOURTEEN days of service of this report. FAILURE TO SO OBJECT TO THIS REPORT WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993).
It is hereby ORDERED that, pending a final disposition of the two motions now before the court, and the court's issuance of the standard Rule 16 scheduling order, discovery in the action is hereby STAYED; and it is further
ORDERED that the clerk of the court serve a copy of this report and recommendation upon the parties in accordance with this court's local rules.
/s/_________
David E. Peebles
U.S. Magistrate Judge
Dated: February 26, 2015
Syracuse, New York