Opinion
6:20-CV-06055 EAW
2021-03-31
Corey MAZYCK, Plaintiff, v. Deputy Superintendent of Security Gregory KELLER, Sergeant Matthew W. Scull, Sergeant Berghorn, and Officer Hendrickson, Defendants.
Poupa Jenny Marashi, Marashi Legal, Bronx, NY, for Plaintiff. Matthew D. Brown, New York State Office of the Attorney General, Rochester, NY, for Defendants.
Poupa Jenny Marashi, Marashi Legal, Bronx, NY, for Plaintiff.
Matthew D. Brown, New York State Office of the Attorney General, Rochester, NY, for Defendants.
DECISION AND ORDER
ELIZABETH A. WOLFORD, United States District Judge INTRODUCTION
Plaintiff Corey Mazyck ("Plaintiff") commenced this action on January 24, 2020, against defendants Deputy Superintendent of Security Gregory Keller, Sergeant Matthew W. Scull, Sergeant Berghorn, and Officer Hendrickson (hereinafter "Defendants") in their individual capacities, alleging claims for failure to protect, excessive force, First Amendment retaliation, conspiracy, supervisory liability, and violation of due process of law, pursuant to 42 U.S.C. § 1983. (Dkt. 1; Dkt. 9).
Presently before the Court is Defendants’ motion to dismiss for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6). (Dkt. 10). For the following reasons, Defendants’ motion is granted as to the fifth cause of action for "supervisory liability," but it is otherwise denied.
BACKGROUND
The following facts are taken from Plaintiff's second amended complaint (Dkt. 9) and are assumed true for purposes of this motion. During the events in question, Plaintiff was an inmate at Elmira Correctional Facility ("Elmira"). (Id. at ¶ 4). Plaintiff arrived at Elmira on August 10, 2018. (Id. at ¶ 11). Plaintiff has "a very serious case of the chronic auto-immune disease Myasthenia gravis, and as a result of such is very weak and does not have strong muscles," which "makes [him] very vulnerable to any acts of violence as he does not have the physical capacity to fight back or to defend himself." (Id. at ¶ 12).
On August 11, 2018, an arrival interview was conducted by Sergeant Issac, during which Plaintiff was asked if he "had enemies." (Id. at ¶ 13). Plaintiff informed Sergeant Issac that he suffered two prior attacks at other facilities, and also made Sergeant Issac aware of an "ongoing feud/beef/dispute he had with his criminal codefendant J. Padilla, as a result of a written statement where Plaintiff had, in the mind of [his] co-defendant, cooperated with law enforcement, during their criminal case." (Id. ). Sergeant Issac verified that J. Padilla was present at Elmira, and that he was undergoing a pending disciplinary Tier 3 hearing and was housed in the Special Housing Unit. (Id. at ¶ 14). Despite Plaintiff's pleas that he be placed in protective custody and his concerns about the past two attacks he suffered and J. Padilla, Sergeant Isaac told Plaintiff that protective custody was not necessary, even though the prison had a general policy of segregating co-defendants in a "known conflict situation." (Id. at ¶ 15). Sergeant Isaac instructed Plaintiff to sign a "Protective Custody Waiver" despite Plaintiff's objections. (Id. at ¶ 16). Following his arrival interview, Plaintiff was released from his 72-hour quarantine keep-lock status. (Id. at ¶ 17).
Defendants argue that Sergeant Issac should be dismissed from the case because the second amended complaint makes no allegations against him. (Dkt. 10-2 at 13). Sergeant Issac was named as a defendant in the complaint and first amended complaint, but not in the second amended complaint. In his response, Plaintiff explains that Sergeant Issac was voluntarily withdrawn as a defendant in the second amended complaint, but also that he reserves the right to add him if discovery reveals his further involvement. (Dkt. 17 at 13 n.2). Because Plaintiff has voluntarily withdrawn Sergeant Issac from the case and he is not named in the second amended complaint, which is the operative pleading in the case, the Clerk of Court is directed to terminate Sergeant Issac as a party on the docket. Thus, the motion to dismiss Sergeant Issac is denied as moot.
Between August 12, 2018 and August 19, 2018, Plaintiff had "several documented encounters" with other inmates which further solidified his belief that he was at substantial risk of serious harm. (Id. at ¶ 18). During these encounters, Plaintiff was approached and notified of J. Padilla's affiliation with the Bloods; informed that the two prior attacks he suffered at other facilities were orchestrated by J. Padilla; and was warned and notified of a pending attack ordered by J. Padilla in the event Plaintiff was transferred to Elmira. (Id. at ¶¶ 19-21). As a result of these encounters, on August 20, 2018, Plaintiff wrote a letter to defendant Keller, notifying him of the heightened substantial risk of harm to his health and safety, as well as of J. Padilla's gang affiliation and how it "would turn the feud between himself and [his] co-defendant into something much larger[.]" (Id. at ¶ 22). Plaintiff mailed the letter to defendant Keller via Elmira's internal mail system. (Id. ). Although defendant Keller was "the final authority, and decision maker regarding all mat[t]ers at Elmira regarding the policy of and the placement decisions for security of prisoners," Plaintiff never received any direct correspondence from him following his letter, nor did defendant Keller take any precautions to prevent the heightened risk of harm. (Id. at ¶¶ 23-24).
After several days of not receiving a response from defendant Keller, on August 22, 2018, Plaintiff wrote a letter to his assigned counselor, E. Klosterman, requesting protective custody housing based on his co-defendant status and the additional information he had received, and mailed it to him via the internal mail system. (Id. at ¶ 25). During this time, defendant Keller still failed to act to prevent an impending attack on Plaintiff, despite being aware of the incidents reported to him by Plaintiff. (Id. at ¶ 26).
On August 23, 2018, at approximately 9:25 AM, Plaintiff was attacked in the unsupervised orientation room on the second floor of Shop 5. (Id. at ¶ 27). Specifically, "[t]wo inmates, Roman and Rubin, assaulted Plaintiff with sharp foreign objects, causing Plaintiff to sustain multiple serious lacerations to the face and head." (Id. ). The officers assigned to Shop 5 failed to timely respond to stop the attack, and only responded when an uninvolved inmate notified them of the incident, but many minutes had already passed, and Plaintiff had already sustained injuries. (Id. at ¶ 28). When the officers responded, Plaintiff was attempting to protect himself, while the other inmates were assaulting him in the face and head with sharp objects. (Id. at ¶ 29). Plaintiff complied with the officers’ orders to stop fighting and backed away from the other inmates. (Id. at ¶ 30). Defendant Hendrickson told Plaintiff to "face the fucking wall" and put his hands behind his back. (Id. ). Plaintiff complied with this order, and while defendant Hendrickson was placing restraints on him, he whispered in Plaintiff's ear, "I don't want your fucking blood on me, and it is in your best interest to make sure that doesn't happen." (Id. at ¶ 31).
Defendant Hendrickson told Plaintiff he was taking him to the clinic due to his injuries. (Id. at ¶ 33). Plaintiff and defendant Hendrickson exited the orientation room and Plaintiff was guided to turn right. (Id. ). Suddenly, and while Plaintiff was still in restraints, defendant Hendrickson "maliciously, and with no lawful objective, projected Plaintiff with great force, into a wall on the left side of the hallway of the second floor, seriously injuring Plaintiff," which "considerably added to his bodily bruises and lacerations," and also caused severe injury to Plaintiff's mouth, including a chipped front top right tooth and an injured lip, and a tear in his shin. (Id. at ¶ 34). Plaintiff asked defendant Hendrickson why he had thrown him against the wall, to which defendant Hendrickson responded that Plaintiff was stupid and got blood on him. (Id. at ¶ 36).
When Plaintiff and defendant Hendrickson reached the bottom of the emergency fire steps, Plaintiff noticed that defendant Scull was also present and escorting him to the clinic. (Id. at ¶ 37). Plaintiff notified defendant Scull, who supervised defendant Hendrickson, that defendant Hendrickson had projected him into a wall and of his injuries. (Id. ). Defendant Scull stated "in sum and substance that nobody will ever know Defendant Hendrickson did it, then called Plaintiff ‘a dumb stupid black n****r that everyone will know is a snitch’ because he would personally make sure of it." (Id. at ¶ 38). In an effort to ensure that Plaintiff did not inform anyone of defendant Hendrickson's actions, defendant Scull "took conscious shocking action against Plaintiff" and, while they were walking the path between the gym, G Block and the clinic, "loudly berated Plaintiff to multiple inmates attending protective custody recreation in the gym yard, calling Plaintiff a snitch while pointing at Plaintiff's multiple bleeding lacerations." (Id. at ¶¶ 39-41). Defendant Scull also asked if anyone knew Plaintiff, and without waiting for a response from the inmates, stated "[w]ell, now you know he's a snitch; let everybody know." (Id. at ¶ 42). Before entering the clinic, defendant Scull told Plaintiff that he would "never make it home now because he will be killed in jail for being a snitch." (Id. at ¶ 43). Plaintiff alleges that the berating by defendant Scull "was in direct retaliation for [Plaintiff]’s putting into the verbal statement of the report of the incident that Defendant Hendrickson had caused Plaintiff serious injury." (Id. at ¶ 44).
Plaintiff was examined by medical personnel at the clinic, during which Plaintiff informed them what had occurred and who had injured him, including the injuries inflicted by defendant Hendrickson. (Id. at ¶ 45). Plaintiff suffered the following injuries:
multiple lacerations and bruises, some of which were caused by Defendant Officers, in addition to the chipped tooth, swollen lip and shin abrasion. Plaintiff was notified by medical personnel that he had a 7" laceration extending from the right side forehead to the right ear, a ... 5" laceration on his scalp, and a 1 ¼" laceration on his left cheek, and finally a 1" laceration in and on the right ear.
(Id. at ¶ 46).
Plaintiff was asked by defendant Scull if he wanted protective custody, and Plaintiff again requested protective custody housing, but he was not provided such housing. (Id. at ¶ 47). Following the medical examination, defendant Berghorn, who was also a sergeant and supervisor, took photographs of Plaintiff's injuries. (Id. at ¶ 48). Plaintiff was administered an HIV/AIDS screening test due to blood getting on defendant Hendrickson. (Id. at ¶ 49). Plaintiff was then notified that he was being sent to an outside hospital due to the severity of his injuries. (Id. at ¶ 50).
Plaintiff then observed and overheard defendants Scull and Berghorn in the doorway of the emergency room of the clinic discussing the misconduct by defendant Hendrickson. (Id. at ¶ 51). Defendant Berghorn instructed defendant Scull to solicit an officer to retrieve Plaintiff's tooth from the second floor hallway of Shop 5 and place it inside the Orientation room, to create the impression that his tooth had been chipped during the assault by the prisoners, rather than by defendant Hendrickson in the hallway. (Id. ). Defendant Berghorn also instructed defendant Scull that no person was to enter the orientation room until pictures had been taken placing the tooth there. (Id. at ¶ 52). Plaintiff alleges that these actions and fabrication of evidence were taken to "cover up the action of their subordinate Defendant Hendrickson, knowing that their photos and their placement of the tooth would create the false illusion that ... only inmates had injured Plaintiff, and that Defendant Hendrickson had not." (Id. at ¶ 53).
Plaintiff received treatment at Arnot Ogden Medical Center for his lacerations, but not his chipped tooth. (Id. at ¶ 54). He received 11 staples and 24 sutures, as well as other treatment. (Id. at ¶ 55). When he returned to Elmira, Plaintiff was escorted back to the clinic and met by defendant Scull, who asked Plaintiff to sign paperwork following his request for protective custody. (Id. at ¶ 56). However, defendant Scull intentionally placed Plaintiff in G block—which is a general population housing area and where defendant Scull had earlier berated Plaintiff—to continue to retaliate against him for stating on incident reports, medical reports, and other documents that defendant Hendrickson had injured him. (Id. at ¶ 57). Plaintiff remained in G Block, at a heightened risk of harm, for six days following the incident and his request for protective custody housing. (Id. at ¶ 59).
On August 29, 2018, during a disciplinary hearing, Plaintiff expressed his concerns regarding his current housing area. (Id. at ¶ 60). Mrs. Lyndaker, the civilian hearing officer, assured Plaintiff that she would make sure he was placed in more appropriate housing. (Id. ). During the disciplinary hearing, either on or off the record, Plaintiff was informed that defendant Keller had received Plaintiff's letter, which had detailed and warned of the immediate risk of harm to Plaintiff, but he chose not to place Plaintiff in protective custody. (Id. at ¶ 61). Following the hearing, Plaintiff was transferred to H block, the protective custody housing area. (Id. at ¶ 63).
PROCEDURAL HISTORY
Plaintiff filed his complaint on January 24, 2020. (Dkt. 1). On February 14, 2020, Defendants filed a motion to dismiss. (Dkt. 6). Thereafter, on March 6, 2020, Plaintiff filed an amended complaint (Dkt. 8), and the Court denied Defendants’ motion to dismiss as moot (Dkt. 11). Plaintiff filed a second amended complaint on March 19, 2020, removing the previously-named "Issac" defendant. (Dkt. 9). Plaintiff's second amended complaint alleges six causes of action: (1) an excessive force claim against defendant Hendrickson, in violation of the Eighth Amendment; (2) a failure to protect claim against defendant Keller, in violation of the Eighth Amendment; (3) a retaliation claim against defendants Berghorn, Scull, and Hendrickson, in violation of the First Amendment; (4) a claim for conspiracy to obstruct justice against defendants Scull, Berghorn, and Hendrickson, pursuant to 42 U.S.C. § 1985(2) ; (5) a claim for supervisory liability against defendants Scull, Berghorn, and Keller; and (6) a claim for violation of due process of law against defendants Scull, Berghorn, and Hendrickson, in violation of the Fourteenth Amendment. (Id. at 16-23). On April 7, 2020, Defendants filed a motion to dismiss the second amended complaint. (Dkt. 10). Plaintiff filed a response in opposition to the motion on May 15, 2020. (Dkt. 16; Dkt. 17).
DISCUSSION
I. Legal Standard
"In considering a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), a district court may consider the facts alleged in the complaint, documents attached to the complaint as exhibits, and documents incorporated by reference in the complaint." DiFolco v. MSNBC Cable L.L.C. , 622 F.3d 104, 111 (2d Cir. 2010). A court should consider the motion by "accepting all factual allegations as true and drawing all reasonable inferences in favor of the plaintiff." Trs. of Upstate N.Y. Eng'rs Pension Fund v. Ivy Asset Mgmt. , 843 F.3d 561, 566 (2d Cir. 2016). To withstand dismissal, a party must set forth "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Turkmen v. Ashcroft , 589 F.3d 542, 546 (2d Cir. 2009) (quoting Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ).
"While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly , 550 U.S. at 555, 127 S.Ct. 1955 (internal quotations and citations omitted). "To state a plausible claim, the complaint's ‘[f]actual allegations must be enough to raise a right to relief above the speculative level.’ " Nielsen v. AECOM Tech. Corp. , 762 F.3d 214, 218 (2d Cir. 2014) (quoting Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ).
II. Plaintiff's Eighth Amendment Claims
Plaintiff's first and second claims are for violations of his Eighth Amendment rights—an excessive use of force claim against defendant Hendrickson, and a failure to protect claim against defendant Keller. (Dkt. 9 at 15-18). Defendants contend that Plaintiff's Eighth Amendment claims must be dismissed because (1) Plaintiff has failed to allege that he suffered a serious injury, as he suffered only a "chipped tooth and facial lacerations" (Dkt. 10-2 at 8), and (2) the claims against defendant Keller must be dismissed because Plaintiff has failed to allege that he was personally involved in the constitutional violations, as his receipt of Plaintiff's letter, by itself, does not amount to personal involvement (id. at 10-11).
A. Excessive Use of Force Claim Against Defendant Hendrickson
"The Eighth Amendment protects prisoners from cruel and unusual punishment by prison officials. To state an Eighth Amendment claim, a prisoner must allege two elements, one subjective and one objective. First, the prisoner must allege that the defendant acted with a subjectively sufficiently culpable state of mind. Second, he must allege that the conduct was objectively harmful enough or sufficiently serious to reach constitutional dimensions." Crawford v. Cuomo , 796 F.3d 252, 256 (2d Cir. 2015) (internal quotations and citations omitted). "The subjective component of the claim requires a showing that the defendant had the necessary level of culpability, shown by actions characterized by wantonness in light of the particular circumstances surrounding the challenged conduct." Harris v. Miller , 818 F.3d 49, 63 (2d Cir. 2016) (quotations and citations omitted). For an excessive force claim, "the test for wantonness ‘is whether the force was used in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.’ " Id. (quoting Scott v. Coughlin , 344 F.3d 282, 291 (2d Cir. 2003) ).
"The objective component of the Eighth Amendment test is also context specific, turning upon ‘contemporary standards of decency.’ " Id. at 64 (citation omitted). "The Eighth Amendment's prohibition of ‘cruel and unusual’ punishments necessarily excludes from constitutional recognition de minimis uses of physical force, provided that the use of force is not of a sort repugnant to the conscience of mankind." Hudson v. McMillian , 503 U.S. 1, 9, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992) (quotations and citation omitted). However, "certain actions, including the malicious use of force to cause harm, constitute Eighth Amendment violations per se. This result follows because when prison officials maliciously and sadistically use force to cause harm, contemporary standards of decency are always violated." Harris , 818 F.3d at 64 (citation omitted).
Plaintiff's allegations against defendant Hendrickson easily satisfy both the subjective and objective elements of an excessive use of force claim, and Defendants’ argument that Plaintiff has failed to allege that he sustained a "serious injury" is misplaced. Plaintiff alleges that defendant Hendrickson, suddenly and for no apparent penological reason, projected Plaintiff—who was wearing handcuffs—into a wall. When Plaintiff asked defendant Hendrickson why he threw him into the wall, defendant Hendrickson replied that Plaintiff was stupid and got blood on him. In other words, Plaintiff has alleged the malicious and sadistic use of force by defendant Hendrickson, which amounts to a per se violation of the Eighth Amendment. Accordingly, Defendants’ motion to dismiss Plaintiff's excessive use of force claim against defendant Hendrickson is denied.
B. Failure to Protect Claim Against Defendant Keller
The Constitution imposes a duty on prison officials to "take reasonable measures to guarantee the safety of the inmates." Farmer v. Brennan , 511 U.S. 825, 832, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (internal quotations and citation omitted). However, not every assault "translates into constitutional liability for prison officials responsible for the victim's safety." House v. City of N.Y. , No. 18 Civ. 6693 (PAE)(KNF), 2020 WL 6891830, at *11 (S.D.N.Y. Nov. 24, 2020) (citation omitted). "To state a claim under the Eighth Amendment on the basis that a defendant has failed to prevent harm, a plaintiff must plead both (a) conditions of confinement that objectively pose an unreasonable risk of serious harm to their current or future health, and (b) that the defendant acted with ‘deliberate indifference.’ " Vega v. Semple , 963 F.3d 259, 273 (2d Cir. 2020). "Deliberate indifference under the Eighth Amendment standard means the official must know of and disregard an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Id. (alterations and quotations omitted).
Plaintiff has plausibly alleged a failure-to-protect claim against defendant Keller. Specifically, Plaintiff alleges:
On August 20th, 2018, as a result of the information he had received in the above enumerated encounters with previously unknown inmates, Plaintiff wrote a letter to Defendant Keller notifying him of the heightened substantial risk of harm to his health and safety resulting from the hit on him ordered by his co-defendant Padilla, and also notified Defendant Keller of the co-defendant's gang affiliation and how it would turn the feud between himself and [his] co-defendant into something much larger, and involve not only Padilla, but also unknown to Plaintiff associates, or affiliates of Padilla's. Plaintiff the[n] mailed the letter to Defendant Keller via Elmira Correctional Facility's internal mail system.
(Dkt. 9 at ¶ 22). Plaintiff never received a response to his letter and defendant Keller did not take any precautions to prevent harm to Plaintiff (id. at ¶¶ 22-25), and Plaintiff ultimately was attacked three days after he wrote the letter to defendant Keller (id. at ¶ 27). Plaintiff further alleges that he learned at a disciplinary hearing on August 29, 2018, that defendant Keller had received his letter, but chose not to place Plaintiff in protective custody, which was unreasonable due to the information in the letter, detailing the serious risk of harm to Plaintiff. (Id. at ¶ 61). In other words, Plaintiff has alleged that he communicated specific information relating to a risk of serious harm—including information relating to an impending attack—and that defendant Keller had knowledge of this information but chose to disregard the risk of harm to Plaintiff by failing to place him in protective custody. Stewart v. Fisher , No. 11 Civ. 2184(HB), 2011 WL 6153084, at *6 (S.D.N.Y. Dec. 12, 2011) (finding that plaintiff adequately alleged failure to protect claim, where defendants "knew of a substantial risk prior to the February 28, 2011 attack and failed to take reasonable measures to abate the harm"); see also Douglas v. Annuci , No. 14-CV-6018 CJS, 2017 WL 5159194, at *6 (W.D.N.Y. Nov. 7, 2017) (finding that plaintiff plausibly pleaded a substantial risk of serious harm where the complaint alleged that there was "an active ‘contract’ on his life by the Bloods gang, and that he has already been slashed by Bloods gang members on five occasions").
To the extent Defendants also contend that the injuries Plaintiff sustained due to defendant Keller's failure to prevent an attack are not "sufficiently serious" to rise to the level of a constitutional violation, the Court rejects this argument. Most of the cases cited by Defendants for this proposition do not involve failure to protect claims, as alleged by Plaintiff. (See Dkt. 10-2 at 9-10). Rather, these cases involve deliberate indifference to serious medical needs claims, which require that a plaintiff allege a "serious medical need." See Charles v. Orange Cnty. , 925 F.3d 73, 86 (2d Cir. 2019). In the context of a failure to protect claim, "the objective prong can be satisfied even where no serious physical injury results," and "[a]t bottom, [i]n assessing whether the risk of an inmate's violence against other inmates is ‘sufficiently serious,’ to trigger constitutional protection, the focus of inquiry must be, not the extent of the physical injuries sustained in an attack, but rather the existence of a ‘substantial risk of serious harm.’ " Randle v. Alexander , 960 F. Supp. 2d 457, 473-74 (S.D.N.Y. 2013) (quotations and citation omitted). Here, Plaintiff has plainly alleged that he informed defendant Keller of a substantial risk of serious harm that existed due to the threat from J. Padilla and his associates, but that defendant Keller failed to take any action to protect him.
Even if the focus of the failure to protect inquiry was the injuries resulting from an attack, Plaintiff's alleged injuries—which included a broken tooth and several severe lacerations which required emergency treatment at an outside hospital and several staples and sutures—are sufficiency serious. See Dabney v. Sawyer , No. 9:11-CV-0273(LEK/RFT), 2013 WL 5494074, at *10 (N.D.N.Y. Sept. 30, 2013) ("a broken tooth may be considered sufficiently serious for purposes of stating a medical deliberate indifference claim"); Goldston v. Albany Cnty. Sheriff Dept. , No. 9:02-CV-1004, 2006 WL 2595194, at *7 (N.D.N.Y. Sept. 11, 2006) (finding that plaintiff's injuries, including "a two-centimeter deep laceration on his forehead that required six stitches to close" was sufficiently serious for constitutional purposes).
Defendants also argue that Plaintiff has failed to allege defendant Keller's personal involvement. "A defendant in a § 1983 action may not be held liable for damages for constitutional violations merely because he held a high position of authority. Rather, the personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983." Victory v. Pataki , 814 F.3d 47, 67 (2d Cir. 2016) (internal alterations, quotations, and citations omitted). Although in Colon v. Coughlin , 58 F.3d 865, 873 (2d Cir. 1995), the Second Circuit identified five categories of evidence that may establish the liability of a supervisory official, more recently, in Tangreti v. Bachmann , the Second Circuit held that, post- 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." 983 F.3d 609, 618 (2d Cir. 2020). The Second Circuit explained that "[t]he factors necessary to establish a [ § 1983 ] violation will vary with the constitutional provision at issue because the elements of different constitutional violations vary," and "[t]he violation must be established against the supervisory official directly." Id. (second alteration in original) (quotations and citations omitted).
At this stage of the case, Plaintiff has alleged defendant Keller's personal involvement in the failure to protect claim. Plaintiff alleges that he wrote to defendant Keller directly to inform him of the specific risk of harm he faced due to J. Padilla and that defendant Keller was aware of the risk of harm to Plaintiff, but he failed to take any action to protect Plaintiff from that harm. Plaintiff further alleges that at a disciplinary hearing he received confirmation that defendant Keller had received Plaintiff's letter and was therefore aware of the risk of harm. In other words, contrary to Defendants’ implication in their motion to dismiss (Dkt. 10-2 at 10-11), Plaintiff's claims against defendant Keller are not based solely on his position as deputy superintendent of security at Elmira, but rather on his personal involvement in the alleged constitutional deprivations.
The Second Circuit's recent decision in Morgan v. Dzurenda , 956 F.3d 84 (2d Cir. 2020), although involving a failure to protect claim at the summary judgment stage, is instructive on this point. In Morgan , the district court granted summary judgment to two prison officials on the plaintiff's failure to protect claim, based on the doctrine of supervisory liability. Id. at 89. The Second Circuit reversed, explaining:
[W]hile Chapdelaine and Godding both held supervisory roles at Osborn, Morgan seeks to hold them liable only for acts that they themselves committed. The crux of Morgan's allegations against Chapdelaine and Godding is that they violated the Eighth Amendment by ignoring his pleas for help. Morgan nowhere suggests that Chapdelaine, Godding, or any other defendant improperly allowed a subordinate prison official to commit a constitutional violation. The doctrine of supervisory liability is therefore not implicated.
We hold that the district court erred in dismissing Morgan's claims against Chapdelaine and Godding on the ground that neither was "on notice that ... Morgan faced an unreasonable risk to his safety." The Inmate Request Forms Chapdelaine and Godding acknowledged receiving were detailed and explicit regarding the threat Morgan believed Rodriguez posed.... In response, Godding made dismissive remarks to Morgan, which Morgan relayed to Chapdelaine in his Inmate Request Form. Chapdelaine ignored these requests for help. These actions reflect Chapdelaine and Godding's subjective awareness of, and deliberate indifference to, Morgan's
specific, repeated, and urgent expressions of fear for his safety.
Id. at 89-90 (internal citations omitted). Because Plaintiff has alleged defendant Keller's personal involvement, Defendants’ motion to dismiss the failure to protect claim against defendant Keller is denied.
III. Plaintiff's First Amendment Retaliation Claims Against Defendants Berghorn, Scull, and Hendrickson
Plaintiff's third claim is for First Amendment retaliation. (Dkt. 9 at 18). "To state a First Amendment retaliation claim sufficient to withstand a motion to dismiss, a plaintiff must allege ‘(1) that the speech or conduct at issue was protected, (2) that the defendant took adverse action against the plaintiff, and (3) that there was a causal connection between the protected speech and the adverse action.’ " Dolan v. Connolly , 794 F.3d 290, 294 (2d Cir. 2015) (quoting Espinal v. Goord, 558 F.3d 119, 128 (2d Cir. 2009) ).
Plaintiff has alleged facts plausibly suggesting that Plaintiff was retaliated against for reporting the assault by defendant Hendrickson. Specifically, Plaintiff alleges that he verbally reported the incident involving defendant Hendrickson to his supervisor defendant Scull, after which defendant Scull, to deter Plaintiff from further speaking about the alleged assault by defendant Hendrickson, informed multiple inmates that Plaintiff was a snitch. (Dkt. 9 at ¶¶ 37, 39-44). Plaintiff also reported defendant Hendrickson's attack to the medical clinic and was denied treatment for his tooth. (Id. at ¶¶ 45, 54). Plaintiff further alleges that following the attack, he was denied protective custody housing and was instead placed in G block where defendant Scull had previously announced that Plaintiff was a snitch, and this placement was in retaliation for Plaintiff reporting the incident involving defendant Scull. (Id. at ¶¶ 57-58). Plaintiff remained in G block for six days at an increased risk of harm. (Id. at ¶ 59). Finally, Plaintiff alleges that the threats by defendant Scull, as well as the cover up instigated by defendants Scull and Berghorn, were meant to chill Plaintiff's speech about the incident involving defendant Hendrickson. (Id. at ¶ 107).
Defendants argue that Plaintiff has not alleged a First Amendment retaliation claim because he has failed to identify the exercise of a protected right. (Dkt. 10-2 at 14-15). In response, Plaintiff contends that his statements to prison officials immediately after the attack and before he filed a grievance were protected speech because "[a] prisoner's statement that he ... intends to file a grievance is constitutionally protected speech." (Dkt. 17 at 27). "An inmate's informal complaints or requests as well as formal grievances constitute protected activity under the First Amendment. With regard to oral or verbal complaints, the Second Circuit has yet to articulate a bright line rule regarding constitutionally protected oral speech by an inmate." Smith v. Barone , No. 3:20cv794(VLB), 2021 WL 917118, at *4 (D. Conn. Mar. 10, 2021) (internal quotations and citations omitted). "[A]lthough not every statement an inmate makes in prison is afforded First Amendment protection, certain verbal complaints by prisoners about the conduct of prison officials may be considered protected action for purposes of a First Amendment retaliation claim." Washington v. Fitzpatrick , No. 20 CV 911 (VB), 2021 WL 966085, at *6 (S.D.N.Y. Mar. 15, 2021) (quotations and citation omitted); but see McIntosh v. United States , No. 14-CV-7889(KMK), 2016 WL 1274585, at *26 (S.D.N.Y. Mar. 31, 2016) ("courts in the Second Circuit and others have distinguished between unambiguously protected activity and situations where an inmate verbally confronts a prison official"); Rossi v. Goord , No. 9:00-CV-1521(LEK/DEP), 2006 WL 2811505, at *10 n.16 (N.D.N.Y. Sept. 28, 2006) ("The questioning by an inmate of a lawful order given by a corrections officer, however, does not constitute protected speech deserving of First Amendment protection.").
The Court finds that Plaintiff has plausibly alleged that he engaged in protected activity for purposes of his First Amendment retaliation claim. Plaintiff alleges that he initially verbally reported the assault by defendant Hendrickson to defendant Scull, and also that he reported the assault to the medical clinic. (See, e.g. , Dkt. 9 at ¶ 37 ("Plaintiff notified and informed Defendant Scull, a supervisor of Defendant Hendrickson, and the rank of Sergeant, of Defendant Hendrickson's projecting him to the wall, and the serious injury and excessive bleeding to his mouth, around his teeth, lip and shins tears directly caused by Defendant Hendrickson."); id. at ¶ 45 ("During the examination, Plaintiff informed the medical personnel what had happened and who had injured him, including the very serious injuries inflicted on him by Defendant Hendrickson.")). Plaintiff further alleges that he stated on incident and medical reports that defendant Hendrickson had injured him (id. at ¶ 57 ("Regardless of Plaintiff's signature for placement into Protective Custody housing, Defendant Scull intentionally housed Plaintiff into G Block in order to continue to retaliate against Plaintiff for stating on incident reports, medical reports, and other documents that Defendant Hendrickson had inflicted severe injury on Plaintiff.")), although it is not clear from the complaint when Plaintiff made those specific reports or the nature of the reports. Although Plaintiff's initial report of the actions taken by defendant Hendrickson to defendant Scull was verbal, it was not a mere confrontation or a disagreement with a lawful order given by a corrections officer. Rather, Plaintiff made a verbal report of an assault by defendant Hendrickson to his supervisor.
Defendants next argue that Plaintiff has failed to allege that he sustained an injury or experienced any adverse action due to his engaging in protected speech. (Dkt. 10-2 at 14-16). Specifically, Defendants contend that Plaintiff's speech was not chilled because he filed grievances regarding his claim, and he filed the instant lawsuit. (Id. at 15). Defendants further contend that the six days Plaintiff spent in general population before he was placed in protective custody is not an injury, because "fear of being assaulted is not a sufficiently serious injury." (Id. at 15-16).
The Court has considered these arguments and finds them to be without merit. In the context of a First Amendment retaliation claim, "[a]n adverse action is defined as retaliatory conduct that would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights." Brandon v. Kinter , 938 F.3d 21, 40 (2d Cir. 2019) (quotations and citation omitted). While "[i]t might seem that, because [an inmate] continued to file grievances even after the alleged retaliation, the defendants’ actions were not sufficiently adverse ... such a view misperceives what constitutes adverse action. The test is objective, and the plaintiff is not required to show that he was actually deterred." Id. In other words, "[c]hilled speech is not the sine qua non of a First Amendment claim. A plaintiff has standing if he can show either that his speech has been adversely affected by the government retaliation or that he has suffered some other concrete harm. Various non-speech related harms are sufficient to give a plaintiff standing." Dorsett v. Cnty. of Nassau , 732 F.3d 157, 160 (2d Cir. 2013).
Here, Plaintiff alleges that he sustained injuries, beyond just the chilling of his speech, in retaliation for his reporting the assault by defendant Hendrickson. For example, Plaintiff alleges that he was denied medical care for his tooth, that he was denied placement in protective custody despite the fact that he faced a risk of serious harm, and that Defendants informed other inmates that he was a snitch, putting him at an increased risk of harm. See Thurmond v. Thomas-Walsh , No. 18-CV-409(KMK), 2019 WL 1429559, at *10 (S.D.N.Y. Mar. 29, 2019) (denial of medical evaluation or treatment could constitute adverse action for purposes of First Amendment retaliation claim); see also Livingston v. Hoffnagle , No. 9:19-CV-0353(GLS/CFH), 2019 WL 7500501, at *13 (N.D.N.Y. Nov. 8, 2019) ("Courts in this Circuit have found that a prison official defendant's refusal of protective custody can be an adverse action for the purposes of a First Amendment retaliation claim because it could cause a prisoner to fear for his safety." (alterations, quotations, and citation omitted)), adopted , 2020 WL 95431 (N.D.N.Y. Jan. 8, 2020).
Finally, the Court notes that Plaintiff plainly alleges a causal connection between the protected activity and the adverse actions. Defendants disclosing to other inmates that Plaintiff was a snitch, the denial of medical care for his tooth, and the denial of protective custody all occurred immediately after Plaintiff initially reported the incident involving defendant Hendrickson. See Espinal v. Goord , 558 F.3d 119, 129 (2d Cir. 2009) ("[a] plaintiff can establish a causal connection that suggests retaliation by showing that protected activity was close in time to the adverse action"). Accordingly, Defendants’ motion to dismiss Plaintiff's First Amendment retaliation claim is denied.
IV. Plaintiff's Conspiracy to Obstruct Justice Claim Against Defendants Berghorn, Scull, and Hendrickson
Plaintiff's fourth claim is for conspiracy to obstruct justice, in violation of 42 U.S.C. § 1985(2). (Dkt. 9 at 19). A conspiracy "need not be shown by proof of an explicit agreement but can be established by showing that the ‘parties have a tacit understanding to carry out the prohibited conduct.’ " Thomas v. Roach , 165 F.3d 137, 146 (2d Cir. 1999) (citation omitted). However, "[c]onclusory, vague, and general allegations of a conspiratorial agreement is insufficient to allege conspiracy under section 1985." Berry v. Fed. Bureau of Investigations , No. 3:20-cv-1116-VLB, 2021 WL 260255, at *6 (D. Conn. Jan. 26, 2021) ; see also Rolkiewicz v. City of N.Y. , 442 F. Supp. 3d 627, 649 (S.D.N.Y. 2020) ("A conspiracy need not be shown by proof of an explicit agreement but can be established by showing that the parties have a tacit understanding to carry out the prohibited conduct. A plaintiff must, however, provide some factual basis supporting a meeting of the minds, such that defendants entered into an agreement, express or tacit, to achieve the unlawful end." (quoting Sanders v. Long Island Newsday , No. CV 09-2393(JFB)(SIL), 2015 WL 5475694, at *14 (E.D.N.Y. July 14, 2015) )).
Defendants contend that this claim must be dismissed because (1) "Plaintiff offers only conclusory, vague, and general allegations of a conspiracy," and (2) the individuals involved in the conspiracy were all employees of the New York Department of Corrections and are therefore precluded by the intracorporate conspiracy doctrine. (Dkt. 10-2 at 17). In response, Plaintiff contends that there are exceptions to the intracorporate conspiracy doctrine, including where the defendants have engaged in criminal conduct, and where the involved individuals are pursuing personal interests wholly separate from the entity. (Dkt. 17 at 24).
Contrary to Defendants’ argument, Plaintiff's allegations relating to the alleged conspiracy are not conclusory. Plaintiff alleges that while he was in the clinic receiving treatment for his injuries, he observed and heard defendants Scull and Berghorn discussing the misconduct of defendant Hendrickson. (Dkt. 9 at ¶ 51). Specifically, defendant Berghorn instructed defendant Scull to solicit an officer to retrieve Plaintiff's tooth from the second floor hallway of Shop 5 and place it inside the orientation room, to create the impression that his tooth had been chipped during the assault by the prisoners, rather than by defendant Hendrickson in the hallway. (Id. ). Defendant Berghorn also instructed defendant Scull that no one be permitted to enter the orientation room until pictures had been taken placing the tooth there, knowing that the photos and placement of the tooth would create the false illusion that only the inmates had injured Plaintiff, and that defendant Hendrickson had not. (Id. at ¶¶ 52-53). These allegations plausibly allege an agreement by the parties to carry out prohibited conduct.
Nor does the intracorporate conspiracy doctrine operate to bar Plaintiff's conspiracy claim. Pursuant to the intracorporate conspiracy doctrine, "employees or agents of a single corporate entity, acting within the scope of their employment, are legally incapable of conspiring together." Ali v. Connick , 136 F. Supp. 3d 270, 282 (E.D.N.Y. 2015). However, "[a]ccording to the personal stake exception, the intracorporate conspiracy doctrine does not apply to bar conspiracy claims against individuals within a single entity when they are pursuing personal interests wholly separate and apart from the entity." Id. (quotations and citation omitted). "Courts have applied this exception in cases where officers were alleged to have exercised excessive force and then conspired to cover-up this alleged use of force." Rolkiewicz , 442 F. Supp. 3d at 648.
At this stage of the proceedings, the Court finds that Plaintiffs’ allegations are sufficient to invoke the personal stake exception to the intracorporate conspiracy doctrine. Plaintiff has alleged that defendants Scull and Berghorn fabricated evidence to cover up the action of defendant Hendrickson (Dkt. 9 at ¶ 53), and that "[n]one of these acts were in any way related to corporate policy or management decision" (id. at ¶ 111). Taking these allegations as true, Plaintiff has plausibly alleged that Defendants "acted other than in the normal course of their corporate duties," by "using excessive force and then agreeing to cover up the alleged assault by manipulating or destroying evidence." Brown v. Annucci , No. 19 CV 9048(VB), 2021 WL 860189, at *10-11 (S.D.N.Y. Mar. 8, 2021) (internal quotations and citation omitted); see also Edwards v. Annucci , No. 17 CV 5018(VB), 2019 WL 1284295, at *9 (S.D.N.Y. Mar. 20, 2019) (explaining that "[e]mploying excessive force and falsifying documents are not core functions performed in the normal course of a correction officer's duties," and "accepting plaintiff's allegations as true for purposes of deciding this motion, plaintiff adequately pleads defendants acted outside the scope of their employment and in their own personal interest when they allegedly tried to cover up the beating, rendering the intracorporate conspiracy doctrine inapplicable"). Accordingly, Defendants’ motion to dismiss Plaintiff's conspiracy claim is denied.
V. Plaintiff's Due Process of Law/"Cover Up Claim" Against Defendants Scull, Berghorn, and Hendrickson
Plaintiff's sixth claim is that his due process rights were violated when Defendants failed to properly investigate his claim against defendant Hendrickson and engaged in a "cover up" to protect defendant Hendrickson. (Dkt. 9 at 22). In connection with this claim, Plaintiff alleges that there was ample evidence showing he had been attacked by defendant Hendrickson, but that defendants Scull and Berghorn fabricated evidence and manufactured the cover up of evidence, and therefore made it impossible for Plaintiff to litigate his underlying claim (id. at ¶¶ 132-34), and Plaintiff was not permitted to produce evidence of his position at the disciplinary hearings brought by the prison (id. at ¶ 140). Defendants argue that this claim must be dismissed because "Plaintiff does not have a constitutional right to an investigation." (Dkt. 10-2 at 16). In response, Plaintiff contends that he is not bringing a failure to investigate claim, but rather a substantive due process violation "grounded in the Fourteenth Amendment, for the cover up and tainting of key evidence which has now been hidden for use in subsequent proceedings." (Dkt. 17 at 31).
"Although there is ... no constitutional right to an investigation by government officials, courts do recognize an inadequate investigation as sufficient to state a civil rights claim [when] there was another recognized constitutional right involved." Melendez v. Falls , No. 06-CV-6198P, 2009 WL 529259, at *1 (W.D.N.Y. Mar. 2, 2009) (alteration, quotations, and citations omitted). For example, "where, as here, the plaintiff alleges that the investigation was falsified for the purpose of retaliating against him for the exercise of his legal rights, such a claim may proceed." Id. See also Franco v. Kelly , 854 F.2d 584, 590 (2d Cir. 1988) ("An act in retaliation for the exercise of a constitutional right is actionable under section 1983 even if the act, when taken for different reasons, would have been proper." (alterations and citation omitted)). Here, Plaintiff plausibly alleges that Defendants fabricated evidence both to protect defendant Hendrickson, but also in retaliation for Plaintiff's exercising his First Amendment rights. (See, e.g., Dkt. 9 at ¶ 106 ("The cover up of the force used by Defendant Hendrickson ... w[as] all inflicted as retaliation for [Plaintiff]’s assertion of his right to tell the truth about the inmate attack incident that was being investigated, and also [Plaintiff]’s due process rights and rights in accessing the courts."); id. at ¶ 134 ("This cover up was performed by Defendants Scull, Berghorn, and Hendrickson in order to cover up Defendant Hendrickson's unlawful actions, and has now made it almost impossible for Plaintiff to litigate this underlying claim, because material evidence was destroyed that showed the tooth in the hallway, and no treatment was provided for the tooth to cover up actions of Defendants.")). Accordingly, Defendants’ motion to dismiss Plaintiff's due process claim on the basis that Plaintiff does not have a constitutional right to an investigation is denied.
VI. Plaintiff's Supervisory Liability Claim Against Defendants Scull, Berghorn, and Keller
Plaintiff's fifth cause of action is for "eighth amendment—supervisory liability" against defendants Scull, Berghorn, and Keller, based on their failure to properly supervise defendant Hendrickson, failure to implement a proper inmate classification system, and by failing to remedy the wrongs committed by defendant Hendrickson and other Department of Corrections employees. (Dkt. 9 at 20-21). Defendants contend that this claim must be dismissed because Plaintiff does not allege that they created a policy or custom under which unconstitutional practices occurred. (Dkt. 10-2 at 11-13).
In response to the motion to dismiss, Plaintiff argues that he has properly pleaded a supervisory liability claim against defendants Berghorn and Scull. (Dkt. 17 at 21). Citing to the five categories delineated by the Second Circuit in Colon v. Coughlin , 58 F.3d 865 (2d Cir. 1995), he points to the following allegations in the second amended complaint which he argues support his supervisory liability claim:
[t]he SAC plausibly alleges that Berghorn and Scull directly participated in the excessive force violation through all five means iterated above. They (1) covered up evidence (SAC ¶¶ 51-53). They (2) did not remedy the wrong after being informed of it by Mr. Mazyck (SAC ¶¶ 37-53), and (3) in covering up the violation, allowed it to continue (SAC ¶¶ 37-53). Berghorn and Scull (4) were grossly negligent regarding Hendrickson, who committed the violation (SAC ¶¶ 37-53), and (5) did not act (in a lawful manner) on information indicating the unlawful use of force had taken place (SAC ¶¶ 37-59)[.]
(Dkt. 17 at 22 (citations omitted)). Plaintiff further clarifies that he only alleges "supervisory liability claims, not any Monell claims." (Id. at 21 n.9).
The Court first notes that the theories of supervisory liability delineated in Colon are no longer controlling following the Second Circuit's decision in Tangreti v. Bachmann , where the Second Circuit held that "there is no special rule for supervisory liability," and that "a plaintiff must plead and prove that each Government-official defendant, through the official's own individual actions, has violated the Constitution." 983 F.3d at 618 (quotations and citations omitted). Accordingly, Colon is no longer controlling on this issue.
The parties’ arguments addressing Plaintiff's claim for "supervisory liability" appear to be based on their misapprehension of such a claim. Simply because a defendant serves in supervisory capacity does not automatically make every claim a plaintiff has against that defendant one for "supervisory liability." See Morgan , 956 F.3d at 90 (doctrine of supervisory liability implicated where plaintiff contends that supervisory defendant improperly allowed subordinate prison official to commit a constitutional violation). As explained above, Plaintiff has plausibly alleged the personal involvement of defendants Keller, Berghorn, and Scull—all of whom hold supervisory positions—in several of the specific constitutional deprivations alleged by Plaintiff. Specifically, Plaintiff alleges that defendant Keller was personally involved in the failure to protect claim, and defendants Berghorn and Scull personally participated in the alleged retaliation, due process, and conspiracy claims.
However, to the extent Plaintiff attempts to hold defendants Keller, Berghorn, and Scull liable for actions taken by defendant Hendrickson only, or for creating a policy or custom under which inmates were abused by corrections officers at Elmira, the Court agrees with Defendants that he has failed to state such a claim. While the second amended complaint contains allegations that there is "a longstanding culture of brutality at Elmira" (Dkt. 9 at ¶ 78), that defendants "Keller, Scull, and Berghorn failed to instruct, train, supervise, control, and discipline personnel in documenting uses of force and preserving evidence, contributing to the culture of lawlessness at Elmira and allowing abusive officers to continue their pattern of excessive force against inmates in their custody" (id. at ¶ 80), as well as that they were aware that "Defendants had been involved in multiple incidents of abuse of inmates prior to their abuse of Plaintiff but did nothing to prevent that abuse" (id. at ¶ 72), those allegations are conclusory and vague, and lack the required specificity to hold supervisory defendants responsible for the actions of their subordinates. For example, the second amended complaint lacks specific allegations describing prior instances of abuse by defendant Hendrickson, or that defendants Keller, Scull, and Berghorn were aware of or encouraged those actions. Because Plaintiff has failed to allege facts plausibly suggesting that defendants Keller, Scull, and Berghorn may be held liable for the actions of their subordinates, Plaintiff's claim for "supervisory liability" is dismissed.
CONCLUSION
For the foregoing reasons, Defendants’ motion to dismiss the second amended complaint (Dkt. 10) is granted in part and denied in part. Defendants’ motion is denied in all respects, except as to Plaintiff's fifth cause of action for "supervisory liability," which is dismissed. In addition, the Clerk of Court is directed to terminate Sergeant Issac from the docket.
SO ORDERED.