Opinion
Civil Action No. 9:09-cv-868 (GLS/DEP).
March 2, 2011
FOR THE PLAINTIFF: JAMES DAVON RICHARDSON Plaintiff Pro Se 42783-037 FCI Fairton Fairton, New Jersey
HON. RICHARD S. HARTUNIAN CHARLES E. ROBERTS, ESQ. United States Attorney Assistant U.S. Attorney Northern District of New York Syracuse, New York, GARY L. SHARPE, ATTORNEY FOR THE DEFENDANTS.
ORDER
The above-captioned matter comes to this court following a Report-Recommendation by Magistrate Judge David E. Peebles, duly filed January 19, 2011. Following ten days from the service thereof, the Clerk has sent the file, including any and all objections filed by the parties herein.
No objections having been filed, and the court having reviewed the Magistrate Judge's Report-Recommendation for clear error, it is hereby
ORDERED, that the Report-Recommendation of Magistrate Judge David E. Peebles filed January 19, 2011 (Dkt. No. 30) is ACCEPTED in its entirety for the reasons state therein; and it is further
ORDERED that defendants' motion for dismissal and/or for summary judgment (Dkt. No. 20) is GRANTED; and it is further
ORDERED that plaintiff's claims against defendant Schult are DISMISSED for failure to state a claim upon which relief may be granted; and it is further
ORDERED that summary judgment is entered DISMISSING plaintiff's claims against defendant Poirer as a matter of law, both with leave to replead; and it is further
ORDERED, that the Clerk of the court serve a copy of this order upon the parties to this action.
IT IS SO ORDERED.
Dated: March 2, 2011 Albany, New York
REPORT AND RECOMMENDATION
Plaintiff James Davon Richardson, a federal prison inmate who is proceeding pro se and in forma pauperis, has commenced this action against the warden of the correctional facility in which he was housed at the relevant times as well as a corrections officer also assigned to work there, alleging deprivation of his civil rights. Plaintiff's claims arise from an incident during which, he claims, the defendant corrections officer sprayed him with the contents of a fire extinguisher while he was in his cell and, following Richardson's threat to lodge a complaint, engaged in a pattern of harassment against him. Plaintiff maintains that when the occurrence was reported to the warden she failed to take appropriate corrective measures. As relief, plaintiff seeks $1 million in compensatory damages and an additional $1 million in punitive damages against each of the two named defendants.In response to plaintiff's complaint, both defendants have moved for its dismissal for failure to state a claim upon which relief may be granted. In the alternative, the corrections officer defendant requests the entry of summary judgment dismissing plaintiff's claims against him based upon additional record evidence submitted in support of his motion. For the reasons set forth below, I recommend that both motions be granted, and that plaintiff's complaint be dismissed, with leave to replead.
I. BACKGROUND
For purposes of defendant Poirier's motion, which as will be seen is being treated as a motion for summary judgment, the following recitation is derived from the record now before the court with all inferences drawn and ambiguities resolved in favor of the plaintiff. Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003). The focus of defendant Schult's motion is upon the facts 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, 127 S. Ct. 2197, 2200 (2007) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56, 127 S. Ct. 1955, 1965 (2007)); see also Cooper v. Pate, 378 U.S. 546, 546, 84 S. Ct. 1733, 1734 (1964), as supplemented by the materials submitted by the plaintiff in opposition to defendants' motion, Dkt. No. 27, to the extent they are consistent with the allegations set forth in his complaint. See Donhauser v. Goord, 314 F. Supp. 2d 119, 121 (N.D.N.Y. 2004) (Hurd, J.).
Plaintiff is a prison inmate entrusted to the care and custody of the United States Bureau of Prisons ("BOP"); at the times relevant to his claims Richardson was designated to the Ray Brook Federal Correctional Institution ("FCI Ray Brook"), located in Ray Brook, New York, and was assigned to a two person cell in the facility's special housing unit ("SHU"). Complaint (Dkt. No. 1) ¶¶ 1, 5, 12; see also Poirier Decl. (Dkt. No. 20-8) ¶¶ 2-3. At all relevant times, defendant Deborah G. Schult served as the warden of FCI Ray Brook. See generally Complaint (Dkt. No. 1).
At the time of the incident giving rise to plaintiff's claims it does not appear that he had a cell mate. Poirier Decl. (Dkt. No. 20-8) ¶ 3.
During the early morning hours of September 26, 2008, while making rounds, defendant Jason Poirier, a corrections officer assigned to work in the FCI Ray Brook SHU, sprayed the plaintiff with liquid contents of a silver fire extinguisher through the slot of plaintiff's cell door. Complaint (Dkt. No. 1) ¶ 5(A); Poirier Decl. (Dkt. No. 20-8) ¶¶ 2-5. According to Poirier's version of the events, his decision to spray the plaintiff stemmed from the fact that his view was obscured by a sheet hanging from the top bunk "like a curtain", preventing him from seeing whether plaintiff was in his assigned bunk. Poirier Decl. (Dkt. No. 20-8) ¶ 3. After plaintiff complained to Poirier concerning the incident and asked to see a superior officer for purposes of making a complaint, defendant Poirier proceeded to harass him both verbally and by banging and kicking on his cell door throughout the remainder of the evening. Complaint (Dkt. No. 1) ¶ 5(A).
Plaintiff denies that Corrections Officer Poirier's view into his cell was obscured by the hanging sheet. See Plaintiff's Opposition Memorandum (Dkt. No. 27) ¶ 27.
Following the encounter plaintiff complained to prison officials through the filing of an administrative remedy complaint utilizing a BOP printed form (BP-9). Complaint (Dkt. No. 1) ¶ 5(B). Plaintiff was thereafter examined by a registered nurse for purposes of making an injury assessment, and six photographs of him were taken. Complaint (Dkt. No. 1) ¶ 5(B); Marini Decl. (Dkt. No. 20-6) ¶ 3. Neither the nurse's examination nor the photographs revealed any objective evidence of injury, although plaintiff reported having difficulty in breathing and of suffering from a rash. Marini Decl. (Dkt. No. 20-6) ¶¶ 4-8.
The examination did reveal the presence of mild dryness of skin on plaintiff's back. Marini Decl. (Dkt. No. 20-6) ¶¶ 5, 9. That condition is attributed to plaintiff's chronicled history of eczema which predated the September 26, 2008 incident, and for which he has been prescribed Triamcinolone cream. Id. at ¶ 9.
A second incident involving plaintiff and Corrections Officer Poirier occurred on or about November 14, 2008 as plaintiff was returning to his housing unit from the facility dining hall. Complaint (Dkt. No. 1) ¶ 5(D). On that occasion, as plaintiff was about to enter a metal detector he was instead directed by defendant Poirier to submit to a pat search, a directive plaintiff attributes to continued ongoing harassment stemming from his complaint regarding the earlier incident. Complaint (Dkt. No. 1) ¶ 5(D). Plaintiff was later called back to the "shake-down shack" by defendant Poirier, who apologized for his prior conduct, which he acknowledged was unprofessional. Complaint (Dkt. No. 1) ¶ 5(D); Poirier Decl. (Dkt. No. 20-8) ¶ 7.
According to defendant Poirier, on that date plaintiff was wearing prohibited head gear which was confiscated. Poirier Decl. (Dkt. No. 20-8) ¶ 7. Plaintiff was not charged with any misconduct in connection with the incident. Id.
Defendant Poirier was ultimately suspended for ten days by Warden Schult as a result of the fire extinguisher spraying incident. Poirier Decl. (Dkt. No. 20-8) ¶ 6.
II. PROCEDURAL HISTORY
Plaintiff commenced this action on July 30, 2009. Dkt. No. 1. Plaintiff's complaint names Warden Schult and Corrections Officer Poirier as defendants, and asserts a single cause of action which, while not directly so stating, appears to allege cruel and unusual punishment, in violation of his rights under the Eighth Amendment. See id.
Plaintiff's Eighth Amendment claim is brought pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 407 U.S. 388, 91 S. Ct. 1999 (1971), in which the Court recognized the existence of an analog to 42 U.S.C. 1983 for constitutional claims asserted against federal employees. Hartman v. Moore, 547 U.S. 250, 254 n. 2, 126 S. Ct. 1695, 1700 (2006); see also Chin v. Bowen, 833 F.2d 21, 24 (2d Cir. 1987).
Following service of the plaintiff's complaint but prior to any pretrial discovery in the action, defendants moved on March 17, 2010 to dismiss plaintiff's complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Dkt. No. 20. Defendant Poirier's motion also requests, in the alternative, the entry of summary judgment based upon the additional materials submitted in support of that motion. Id. Plaintiff has since responded on July 1, 2010 in opposition to defendants' motion, Dkt. No. 27, which is now fully briefed and ripe for disposition and has been referred to me for the issuance of a report and recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B) and Northern District of New York Local Rule 72.3(c). See also Fed.R.Civ.P. 72(b).
III. DISCUSSION
A. Dismissal Motion 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, utilizing as a backdrop a pleading 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, ___ U.S. ___, ___, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 555, 127 S. Ct. 1955, (2007)). Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that a complaint contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). Id. While modest in its requirement, that rule commands that a complaint contain more than mere legal conclusions; "[w]hile legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Ashcroft, 129 S. Ct. at 1950.
To withstand a motion to dismiss, a complaint must plead sufficient facts which, when accepted as true, state a claim which is plausible on its face. Ruotolo v. City of New York, 514 F.3d 184, 188 (2d Cir. 2008) (citing Twombly, 550 U.S. at 570, 127 S. Ct. at 1974). 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, 127 S. Ct. at 1974).
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. Cooper v. Pate, 378 U.S. 546, 546, 84 S. Ct. 1723, 1734 (1964); Miller v. Wolpoff Abramson, LLP, 321 F.3d 292, 300 (2d Cir. 2003), cert. denied, 540 U.S. 823, 124 S. Ct. 153 (2003); Burke v. Gregory, 356 F. Supp. 2d 179, 182 (N.D.N.Y. 2005) (Kahn, J.). The burden undertaken by a party requesting dismissal of a complaint under Rule 12(b)(6) is substantial; the question presented by such a motion is not whether the plaintiff is likely ultimately to prevail, "'but whether the claimant is entitled to offer evidence to support the claims.'" Log On America, Inc. v. Promethean Asset Mgmt. L.L.C., 223 F. Supp. 2d 435, 441 (S.D.N.Y. 2001) (quoting Gant v. Wallingford Bd. of Educ., 69 F.3d 669, 673 (2d Cir. 1995)) (citations and quotations omitted).
B. Summary Judgment Standard
Summary judgment motions are governed by Rule 56 of the Federal Rules of Civil Procedure. Under that provision, summary judgment is warranted when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S. Ct. 2505, 2509-10 (1986); Security Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 82-83 (2d Cir. 2004). A fact is "material", for purposes of this inquiry, if it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248, 106 S. Ct. at 2510; see also Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir. 2005) (citing Anderson). A material fact is genuinely in dispute "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248, 106 S. Ct. at 2510.
A party moving for summary judgment bears an initial burden of demonstrating that there is no genuine dispute of material fact to be decided with respect to any essential element of the claim in issue; the failure to meet this burden warrants denial of the motion. Anderson, 477 U.S. at 250 n. 4, 106 S. Ct. at 2511 n. 4; Security Ins., 391 F.3d at 83. In the event this initial burden is met, the opposing party must show, through affidavits or otherwise, that there is a material issue of fact for trial. Fed.R.Civ.P. 56(e); Celotex, 477 U.S. at 324, 106 S. Ct. at 2553; Anderson, 477 U.S. at 250, 106 S. Ct. at 2511. Though pro se plaintiffs are entitled to special latitude when defending against summary judgment motions, they must establish more than mere "metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 1356 (1986); but see Vital v. Interfaith Med. Ctr., 168 F.3d 615, 620-21 (2d Cir. 1999) (noting obligation of court to consider whether pro se plaintiff understood nature of summary judgment process).
When deciding a summary judgment motion, a court must resolve any ambiguities and draw all inferences from the facts in a light most favorable to the nonmoving party. Jeffreys, 426 F.3d at 553; Wright v. Coughlin, 132 F.3d 133, 137-38 (2d Cir. 1998). The entry of summary judgment is warranted only in the event of a finding that no reasonable trier of fact could rule in favor of the non-moving party. See Building Trades Employers' Educ. Ass'n v. McGowan, 311 F.3d 501, 507-08 (2d Cir. 2002) (citation omitted); see also Anderson, 477 U.S. at 250, 106 S. Ct. at 2511 (summary judgment is appropriate only when "there can be but one reasonable conclusion as to the verdict").
C. Personal Involvement
In her motion defendant Schult argues that plaintiff's allegations are insufficient to establish her liability in connection with the constitutional violation alleged. In support of that contention defendant Schult notes that plaintiff's allegations appear to be predicated principally upon a theory of respondeat superior, based upon the actions of Corrections Officer Poirier, and his further assertion that she was negligent in her handling of the matter and argues that neither theory would support a claim against her.
Personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages both in a Bivens action and under its state action counterpart, 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) and McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir. 1977), cert. denied, 434 U.S. 1087, 98 S. Ct. 1282 (1978)); see also Walker v. Snyder, No. 9:05-CV-1372, 2007 WL 2454194, at * 5 (N.D.N.Y. Aug. 23, 2007) (Sharpe, J. and DiBianco, M.J); Sash v. United States, 674 F. Supp. 2d 531, 542 (S.D.N.Y. 2009). In order to prevail on either a claim under Bivens or section 1983 against an individual, a plaintiff must show some tangible connection between the constitutional violation alleged and that particular defendant. See Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986).
Copies of all unreported decisions cited in this document have been appended for the convenience of the pro se plaintiff.
Certain of plaintiff's allegations signal that his theory of liability against Warden Schult is predicated, at least in large part, upon respondeat superior. In his complaint, for example, plaintiff alleges that "defendant Schult is held accountable and responsible for the actions of her subordinates." Complaint (Dkt. No. 1) ¶ 6(C). Such allegations do not provide a basis for finding liability on the part of a supervisory employee; a supervisor cannot be liable for damages under section 1983 or in a Bivens setting solely by virtue of being a supervisor, as there is no respondeat superior liability in those circumstances. Richardson v. Goord, 347 F.3d 431, 435 (2d Cir. 2003); Wright, 21 F.3d at 501. Accordingly, any claims against defendant Schult based solely upon her position as warden and the conduct of her subordinates, standing alone, are not cognizable in a Bivens setting. Walker, 2007 WL 2454194, at * 5.
On more than one occasion plaintiff's complaint alleges that Warden Schult was negligent in the performance of her duties. See, e.g., Complaint (Dkt. No. 1) ¶¶ 8, 9. Mere negligence, however, does not rise to a level sufficient to support a constitutional claim under Bivens. Davidson v. Canon, 474 U.S. 344, 347-348, 106 S. Ct. 668, 670 (1986). Accordingly, any claim based solely upon plaintiff's assertion that defendant Schult was negligent in the performance of her duties is similarly without merit.
In this circuit it has historically been generally accepted that culpability on the part of a supervisory official for a civil rights violation can only be established in one of several ways, including when that individual 1) has directly participated in the challenged conduct; 2) after learning of the violation, such as through a report or appeal, has 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 v. Goord, 349 F.3d at 435. More recently, however, the issue of supervisory liability for civil rights violation under Bivens was addressed by the Supreme Court in its decision in Iqbal. In that case, the Court made it clear that a governmental official, regardless of title, is accountable only for his or her conduct in such a setting, and that as such the term "supervisory liability" is a misnomer. Iqbal, 129 S. Ct. at 1948.
The Second Circuit has yet to address the impact of Iqbal upon the categories of supervisory liability under Colon. Lower courts have struggled with this issue, and specifically whether Iqbal effectively calls into question certain prongs of the Colon five-part test for supervisory liability. See Sash, 674 F. Supp. 2d at 542-544; see also Stewart v. Howard, No. 9:09-CV-0069 (GLS/GHL), 2010 WL 3907227, at *12 n. 10 (N.D.N.Y. Apr. 26, 2010) ("The Supreme Court's decision in [Iqbal] arguably casts in doubt the continued vitality of some of the categories set forth in Colon.") (citations omitted), report and recommendation adopted, 2010 WL 3907137 (Sept. 30, 2010). While some courts have taken the position that only the first and third of the five Colon categories remain viable and can support a finding of supervisory liability, see, e.g., Bellamy v. Mount Vernon Hosp., No. 07 CIV. 1801, 2009 WL1835939, at *6 (S.D.N.Y. June 26, 2009), aff'd, 387 Fed. App'x 55 (2d Cir. 2010), others disagree and conclude that whether any of the five categories apply in any particular case depends upon the particular violations alleged and the supervisor's participatory role, see, e.g., D'Olimpio v. Crisafi, Nos. 09 Civ. 7283 (JSR), 09 Civ. 9952 (JSR), 2010 WL 2428128, at *5 (S.D.N.Y. Jun. 15, 2010); Qasem v. Toro, No. 09 Civ. 8361 (SHS), 2010 WL 3156031, at *4 (S.D.N.Y. Aug. 10, 2010).
I have assumed, for purposes of my analysis, the continued applicability of the Colon factors. Nonetheless, I conclude in this instance they do not support a finding of liability based upon the allegations of plaintiff's complaint. Plaintiff does not argue that Warden Schult directly participated in Corrections Officer Poirier's spraying of him using the fire extinguisher. Instead, plaintiff appears to be claiming that after learning of the violation defendant Schult failed to act to remedy the wrong and to insure that unconstitutional acts were not ongoing under her supervision.
It is true that plaintiff's complaint contains the bald assertion that Warden Schult conspired with Corrections Officer Poirier to harass him. See, e.g., Complaint (Dkt. No. 1) ¶ 2. The allegations of plaintiff's complaint, however, are insufficient to plead a plausible conspiracy claim. To support a claim of conspiracy in a civil rights setting such as this a plaintiff must establish that a defendant acted willfully, resulting in an agreement, or meeting of the minds, to violate rights secured by the constitution. Loria v. Butera, No. 5:09-CV-531, 2010 WL 3909884, at * 6 (N.D.N.Y. Sept. 29, 2010) (Scullin, S.J.) Malsh v. Austin, 901 F. Supp. 757, 763 (S.D.N.Y. 1995). Conclusory allegations like those contained within plaintiff's complaint do not suffice to establish a plausible claim of conspiracy to deprive him of his constitutional rights. Boddie v. Schnieder, 105 F.3d 857, 862 (2d Cir. 1997); see also Somer v. Dixon, 709 F.2d 173, 175 (2d Cir.), cert. denied, 464 U.S. 857, 104 S. Ct. 177 (1983). It should also be noted that any claim of conspiracy in this case would likely be doomed to fail as precluded under the intra-agency conspiracy doctrine, which provides that with exceptions not now presented, an entity cannot conspire with one or more of its employees, acting within the scope of employment, and thus a conspiracy claim conceptually will not lie in such circumstances. See, e.g., Everson v. New York City Transit Auth., 216 F. Supp. 2d 71, 75-76 (E.D.N.Y. 2002); Griffin-Nolan v. Providence Washington Ins. Co., No. 5:05CV1453, 2005 WL 1460424, at *10-11 (N.D.N.Y. June 20, 2005) (Scullin, C.J.).
From defendants' submissions we now know that plaintiff is mistaken, and that in fact Warden Schult took action to address Corrections Officer Poirier's conduct by suspending him without pay for a period of ten days. See Poirier's Decl. (Dkt. No. 20-8) ¶ 6. Unfortunately, however, due to the procedural posture of the case — defendant Schult not having sought summary judgment as an alternative remedy — the court cannot consider that fact when deciding defendant Schult's motion.
Richardson's Eighth Amendment claim is predicated principally upon a single isolated event. The plaintiff does not assert the existence of an ongoing deprivation of constitutional proportions which, when reported to Warden Schult, went unaddressed. Although a second incident allegedly took place involving Corrections Officer Poirier in the "shake-down shack", that incident does not arise to a level sufficient to support an Eighth Amendment violation. See Tafari v. Paul, No. 06CV0603A, 2009 WL 3260075, at * 2 (W.D.N.Y. Oct. 8, 2009); Murray v. Bushey, No. 9:04-cv-00805, 2009 WL 498144, at * 5 (N.D.N.Y. Feb. 26, 2009) (Hurd, J. and Lowe, M.J.).
Having carefully reviewed the allegations set forth in plaintiff's complaint and finding that they do not meet any of the grounds enunciated in Colon for establishing supervisory liability, I conclude that plaintiff has failed to assert a basis for finding liability on the part of Warden Schult, and therefore recommend dismissal of plaintiff's claims against her.
D. Plaintiff's Eighth Amendment Claim Against Corrections Officer Poirier
In his motion Corrections Officer Poirier submits that on its face plaintiff's complaint fails to allege a plausible claim of cruel and unusual punishment, in violation of the Eighth Amendment. Alternatively, he requests that the court consider the additional materials submitted with his motion and determine his entitlement to judgment on that claim as a matter of law.
1. Procedural Posture
Defendant Poirier's pre-answer motion is brought seeking, in the alternative, either dismissal for failure to state a cause of action or summary judgment dismissing the complaint. As an initial threshold matter, the court must determine whether to consider defendant's motion as seeking dismissal for failure to state a claim from which relief may be granted, limiting the court's review to the four corners of plaintiff's complaint, see Global Network Communications, Inc. v. City of New York, 458 F.3d 150, 156 (2d Cir. 2006), or instead as a motion for summary judgment, in which case the court would have available to it the entire record, including the extrinsic materials submitted by the parties, for use in deciding the motion. See Fed.R.Civ.P. 12(b) ("[i]f . . . matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56. . . .); see also, Friedl v. City of New York, 210 F.3d 79, 83-84 (2d Cir. 2000).
It is ordinarily improper for a court to consider matters outside of a complaint when resolving a Rule 12(b)(6) motion absent express notice that the court is converting the motion to one for summary judgment. Reliance Ins. Co. v. Polyvision Corp., 474 F.3d. 54, 57 (2d Cir. 2007). Where, however, the nonmoving party is plainly aware that additional factual matters are being considered and responds with his or her own evidentiary submissions, formal notice of the conversion by the court is not required. Id. In this case plaintiff was notified by defendant Poirier's moving papers that the motion was made under Rule 12(b)(6) or, in the alternative, Rule 56, and indeed submitted extrinsic materials of his own in opposition to the motion, including objections to defendants' declarations and a responding statement pursuant to Northern District of New York Local Rule 7.1(a)(3). I therefore recommend that the court consider defendants' motion as seeking summary judgment dismissing plaintiff's complaint.
2. Merits of Plaintiff's Eighth Amendment Claim
Plaintiff's complaint asserts a cause of action brought under the Eighth Amendment, which proscribes punishments that involve the "unnecessary and wanton infliction of pain" and are incompatible with "the evolving standards of decency that mark the progress of a maturing society." Estelle v. Gamble, 429 U.S. 97, 102, 104, 97 S. Ct. 285, 290, 291 (1976); see also Whitley v. Albers, 475 U.S. 312, 319, 106 S. Ct. 1076, 1084 (1986) (citing, inter alia, Estelle). While the Eighth Amendment does not mandate comfortable prisons, neither does it tolerate inhumane treatment of those in confinement; thus, the conditions of an inmate's confinement are subject to Eighth Amendment scrutiny. Farmer v. Brennan, 511 U.S. 825, 832, 114 S. Ct. 1970, 1976 (1994) (citing Rhodes v. Chapman, 452 U.S. 337, 349, 101 S. Ct. 2392, 2400 (1981)).
A plaintiff's constitutional right against cruel and unusual punishment is violated by an "unnecessary and wanton infliction of pain." Whitley, 475 U.S. at 319, 106 S. Ct. at 1084 (citations and quotations omitted); Griffen v. Crippen, 193 F.3d 89, 91 (2d Cir. 1999). The lynchpin inquiry in deciding claims of excessive force against prison officials is "whether force was applied in a good-faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm." Hudson v. McMillian, 503 U.S. 1, 6-7, 112 S. Ct. 995, 998-999 (1992) (applying Whitley to all excessive force claims); Whitley, 475 U.S. at 320-21, 106 S. Ct. at 1085 (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.) (Friendly, J.), cert. denied sub nom., John v. Johnson, 414 U.S. 1033, 94 S. Ct. 462 (1973)).
Analysis of claims of cruel and unusual punishment requires both objective examination of the conduct's effect and a subjective inquiry into the defendant's motive for his or her conduct. Wright v. Goord, 554 F.3d 255, 268 (2d Cir. 2009) (citing Hudson, 503 U.S. at 7-8, 112 S. Ct. at 999 and Blyden v. Mancusi, 186 F.3d 252, 262 (2d Cir. 1999)). As was recently emphasized by the United States Supreme Court in Wilkins v. Gaddy, however, after Hudson the "core judicial inquiry" is focused not upon the extent of the injury sustained, but instead whether the nature of the force applied was nontrivial. Wilkins v. Gaddy, ___ U.S. ___, 130 S. Ct. 1175, 1178 (2010) (per curiam). Accordingly, when considering the subjective element of the governing Eighth Amendment test a court must be mindful that the absence of serious injury, though relevant, does not necessarily negate a finding of wantonness since, as the Supreme Court has noted,
[w]hen prison officials maliciously and sadistically use force to cause harm, contemporary standards of decency always are violated. . . . This is true whether or not significant injury is evident. Otherwise, the Eighth Amendment would permit any physical punishment, no matter how diabolic or inhuman, inflicting less than some arbitrary quantity of injury.Hudson, 503 U.S. at 9, 112 S. Ct. at 1000 (citations omitted); Velasquez v. O'Keefe, 899 F. Supp. 972, 973 (N.D.N.Y. 1995) (McAvoy, C.J.) (quoting Hudson, 503 U.S. at 9, 112 S. Ct. at 1000); see Romaine v. Rewson, 140 F. Supp.2d 204, 211 (N.D.N.Y. 2001) (Kahn, J.). Even a de minimis use of physical force can constitute cruel and unusual punishment if it is "repugnant to the conscience of mankind." Hudson, 503 U.S. at 9-10, 112 S. Ct. 1000 (citations omitted).
With its focus on the harm done, the objective prong of the inquiry is contextual and relies upon "contemporary standards of decency." Wright, 554 F.3d at 268 (quoting Hudson, 503 U.S. at 8, 112 S. Ct. at 1000) (internal quotations omitted)). When addressing this component of an excessive force claim under the Eighth Amendment calculus, the court can consider the extent of the injury suffered by the inmate plaintiff. While the absence of significant injury is certainly relevant, it is not dispositive. Hudson, 503 U.S. at 7, 112 S. Ct. at 999. The extent of an inmate's injury is but one of the factors to be considered in determining a prison official's use of force was "unnecessary and wanton"; courts should also consider the need for force, whether the force was proportionate to the need, the threat reasonably perceived by the officials, and what, if anything, the officials did to limit their use of force. Whitley, 475 U.S. at 321, 106 S. Ct. at 1085 (citing Johnson, 481 F.2d at 1033). "But when prison officials use force to cause harm maliciously and sadistically, 'contemporary standards of decency are always violated. . . . This is true whether or not significant injury is evident.'" Wright, 554 F.3d at 268-69 (quoting Hudson, 503 U.S. at 9, 112 S Ct. at 1000).
That is not to say that "every malevolent touch by a prison guard gives rise to a federal cause of action." Griffen, 193 F.3d at 91 (citing Romano v. Howarth, 998 F.2d 101, 105 (2d Cir. 1993)); see also Johnson, 481 F.2d at 1033 ("Not every push or shove, even if it later may seem unnecessary in the peace of a judge's chambers, violates a prisoner's constitutional rights"). Where a prisoner's allegations and evidentiary proffers, if credited, could reasonably allow a rational factfinder to find that corrections officers used force maliciously and sadistically, however, summary judgment dismissing an excessive use of force claim is inappropriate. Wright, 554 F.3d at 269 (citing Scott v. Coughlin, 344 F.3d 282, 291 (2d Cir. 2003) (reversing summary dismissal of prisoner's complaint, though suggesting that prisoner's evidence of an Eighth Amendment violation was "thin" as to his claim that a corrections officer struck him in the head, neck, shoulder, wrist, abdomen, and groin, where the "medical records after the . . . incident with [that officer] indicated only a slight injury")) (other citations omitted).
Plaintiff's allegations in this case fail to rise to a level cognizable under the Eighth Amendment. Addressing the "shake-down shack" incident, for example, plaintiff alleges that he was harassed and made to submit to a pat frisk in lieu of passing through a metal detector. This allegation, even if true, reflects only an inconvenience of a modest nature, and is facially insufficient to support an Eighth Amendment violation, even if true. See Boddie v. Schneider, 105 F.3d 857, 859-861 (2d Cir. 1997) ("The isolated episodes of harassment and touching alleged by Boddie are despicable and, if true, they may potentially be the basis of state tort actions. But they do not involve a harm of federal constitutional proportions as defined by the Supreme Court."); see also Morales v. Mackalm, 278 F.3d 126 (2d. Cir. 2002) ("Because Morales' allegations do not even rise to the level of those made by the plaintiff in Boddie, they do not state a claim for sexual harassment in violation of the Eighth Amendment to the United States Constitution."); Williams v. Fitch, No. 04-CV-6440L, 2008 WL 1947024, *2 (W.D.N.Y. 2008) (An Eighth Amendment claim under § 1983 will not lie, however, where an inmate alleges only minor, isolated incidents which are neither singly nor "cumulatively egregious in the harm they inflicted."); Davis v. Castleberry, 364 F. Supp. 2d 319, 321 (W.D.N.Y. 2005) (allegation that corrections officer grabbed inmate's penis during pat frisk is insufficient to state constitutional claim); Morrison v. Cortright, 397 F. Supp. 2d 424, 425 (W.D.N.Y. 2005) (allegations that a corrections officer touched plaintiff's buttocks, and that another "rubbed up against plaintiff['s] buttocks with [the officer's] private part" during a strip search describe an isolated incident unaccompanied by physical injury, and therefore are not sufficiently serious to establish a constitutional claim); Montero v. Crusie, 153 F. Supp. 2d 368, 373, 375 (S.D.N.Y. 2001) (allegation that corrections officer squeezed inmate's genitalia during pat-frisks on several occasions does not show sufficiently serious deprivation to establish Eighth Amendment violation, particularly when inmate did not allege that he was physically injured by such conduct).
Similarly, plaintiff's claim that he was subjected to verbal harassment, including banging on his cell door, at the hands of Corrections Officer Poirier, if true reflects conduct that is objectionable and unprofessional, but fails to support a finding of cruel and unusual punishment in violation of the Eighth Amendment; neither Bivens nor its state action counterpart, 42 U.S.C. § 1983, is designed to represent a code of professional conduct for federal, state and local prison officials. Alnutt v. Cleary, 913 F. Supp. 160, 165-66 (W.D.N.Y. 1996) (citations omitted); Williams v. United States, No. 07 Civ. 3018, 2010 WL 963474, at * 16 (S.D.N.Y. Feb. 25, 2010), report and recommendation adopted, 2010 WL 963465 (Mar. 16, 2010). Federal courts are neither equipped nor in the business of overseeing prison operations and performing human resource functions within such settings; rather, the function of the courts in a case such as this is to safeguard the right of prison inmates to be free of cruel and unusual punishment running afoul to the Eighth Amendment. Estelle, 429 U.S. at 102, 97 S. Ct. at 291. Allegations of verbal abuse, however reprehensible it may be, do not ordinarily rise to the level of such a constitutional violation, and are not cognizable in a civil rights action such as this. See Moncrieffe v. Witbeck, No. 97-CV-253, 2000 WL 949457, at *3 (N.D.N.Y. June 29, 2000) (Mordue, J.) (allegations that corrections officer laughed at inmate not actionable under section 1983) (citation omitted); Carpio v. Walker, No. Civ. A.95CV1502, 1997 WL 642543, at *6 (N.D.N.Y. Oct. 15, 1997) (Pooler, J. DiBianco, M.J.) ("verbal harassment alone, unaccompanied by any injury, no matter how inappropriate, unprofessional, or reprehensible it might seem, does not rise to the level of an Eighth Amendment violation").
The sole incident described in plaintiff's complaint that could arguably support an Eighth Amendment claim concerns Corrections Officer Poirier's alleged spraying of Richardson. According to Corrections Officer Poirier, plaintiff's cell was sprayed with water from a silver fire extinguisher for the purpose of knocking down a hanging sheet allegedly interfering with his view of the plaintiff, and not with intent to cause harm to the plaintiff. Poirier Decl. (Dkt. No. 20-8) ¶¶ 4 and 5. A declaration of Phillip J. Hamel, the safety manager at FCI Ray Brook, confirms that the silver fire extinguisher used contains only water. See Hamel Decl. (Dkt. No. 20-7) ¶¶ 6-12. A physical inspection of the plaintiff by medical officials at FCI Ray Brook shortly following the incident failed to reflect any evidence of injury other than dry skin associated with a pre-existing condition. Marini Decl. (Dkt. No. 20-6) ¶¶ 3-12.
In his submission in opposition to defendants' motion, plaintiff does not refute defendants' contention that the fire extinguisher contained only water, instead asserting that "[i]t matters not whether the content of the 'fire extinguisher'" was water, milk or acid. The act within itself constitutes an Assault/Battery and clearly violates Plaintiff's Right 'To Be Free' from undo [sic] cruel and unusual punishment." Plaintiff's Opposition Memorandum (Dkt. No. 27) ¶ 20.
Without question Corrections Officer Poirier's actions, however well intentioned as an effort to insure that plaintiff was in his bunk, were contrary to the standards of conduct in effect at FCI Ray Brook, as evidenced by the punishment administered to defendant Poirier stemming from the incident. Nonetheless, accepting as true plaintiff's allegations that he was sprayed for up to ten seconds with what the record establishes was water from a fire extinguisher, no reasonable factfinder could conclude that plaintiff's Eighth Amendment to be free from cruel and unusual punishment was abridged based upon that action.
This is not a case in which the plaintiff alleges that a history of animosity on the part of Corrections Officer Poirier resulted in a malicious spraying of him with a fire extinguisher while asleep. Contrast Beckford v. Portuondo, 151 F. Supp.2d 204, 216 (N.D.N.Y. 2001) (finding that an Eighth Amendment claim could be supported by a finding that defendants sprayed plaintiff with a fire extinguisher "in a malicious and sadistic manner because of their anger with him over his misbehavior."). Instead, the record now before the court reflects a situation more akin to the circumstances presented in Tapia v. Thornton, No. 3:94-CV-197 RM, 1996 WL 204494 (N.D. Ind. Mar. 19, 1996), in which the court found that the act of squirting the plaintiff with water from a fire extinguisher "while unprofessional, did not amount to a constitutional violation." Id. at *5; see also Lunsford v. Bennett, 17 F.3d 1574, 1582 (7th Cir. 1994) (incident in which corrections officers poured a bucket of water over the head of a prisoner who was already standing in ankle-deep water while shackled to the bars of his cells characterized as "a minor use of force that does not offend the conscience."). I therefore recommend dismissal of plaintiff's Eighth Amendment claim of cruel and unusual punishment.
E. Dismissal With Or Without Leave To Amend
Ordinarily a court should not dismiss a complaint filed by a pro se litigant without granting leave to amend at least once if there is any indication that a valid claim might be stated. Branum v. Clark, 927 F.2d 698, 704-05 (2d Cir. 1991) (emphasis added); see also Fed.R.Civ.P. 15(a) (leave to amend "shall be freely given when justice so requires"); see also Mathon v. Marine Midland Bank, N.A., 875 F.Supp. 986, 1003 (E.D.N.Y. 1995) (leave to replead granted where court could not say that under no circumstances would proposed claims provide a basis for relief). This holds true even in the event of a finding on a motion for summary judgment that record fails to support a claim set forth in plaintiff's initial complaint. See Kilgore v. Kaufman, 374 Fed. App'x (2d Cir. 2010) (vacating, in part, the district court's grant of summary judgment and suggesting that on remand the lower court consider whether plaintiff may amend complaint). The court must next determine whether plaintiff is entitled to the benefit of this general rule, given the procedural history of the case.
Within plaintiff's complaint, which plainly centers upon his claim that defendants subjected him to cruel and unusual punishment, there are indicators suggesting that he may possess other potentially viable causes of action. Plaintiff's complaint, for example, intimates that defendant Poirier's actions may have been taken in retaliation for his having voiced concerns over prisoner abuses at FCI Ray Brook. See Complaint (Dkt. No. 1) ¶ 4. As currently constituted, however, plaintiff's complaint contains insufficient information to support a plausible claim of retaliation since it does not provide any indication of a nexus between that conduct and the adverse action taken against him by Corrections Officer Poirier. See Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S. Ct. 568, 576 (1977); Dillon v. Morano, 497 F.3d 247, 251 (2d Cir. 2007); Dawes v. Walker, 239 F.3d 489, 492 (2d Cir. 2001), overruled on other grounds, Phelps v. Kapnolas, 308 F.3d 180 (2d Cir. 2002).
Similarly, though in only a conclusory fashion, plaintiff alleges that he was subjected to discrimination on the basis of religion or ethnicity, and additionally was subjected to punishment without due process of law. Id. ¶ 13. While these claims are not now plausibly stated, nor do they appear to be at the heart of his complaint, plaintiff nonetheless should be given an opportunity to replead if desired in order to flesh out such potential causes of action. When doing so, however, plaintiff is reminded that he must plead sufficient facts to establish the existence of plausible claims under these other theories. It is well-established 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, S.J.) (citing Barr v. Abrams, 810 F.2d 358, 363 (2d Cir. 1987) (other citations omitted). Any amended complaint, if permitted by the court after acting upon this report and recommendation, must therefore clearly set forth facts demonstrating the existence of one or more plausible claims and be calculated to replace the existing complaint and constitute a wholly integrated and complete pleading that does not rely on or incorporate by reference in any portion of the pleading currently on file with the court. See Harris v. City of N.Y., 186 F.3d 243, 249 (2d Cir. 1999).
IV. SUMMARY AND RECOMMENDATION
Plaintiff's complaint, which alleges that he was subjected to cruel and unusual punishment though the conduct of Corrections Officer Poirier on two separate occasions, and that Warden Schult failed to take appropriate action to prevent those occurrences, is legally deficient. Addressing first plaintiff's claims against Warden Schult, I find that Richardson has failed to demonstrate a plausible basis for finding the requisite degree of personal involvement in the actions taken to support a finding of liability against her, even accepting as true each of the allegations set forth in his complaint. Turning to plaintiff's claims against Corrections Officer Poirier, and considering the full record now before the court, I find that no reasonable factfinder could conclude that the incidents alleged rise to a level sufficient to support a cognizable Eighth Amendment claim. Accordingly, it is hereby respectfully
RECOMMENDED that defendants' motion for dismissal and/or for summary judgment (Dkt. No. 20) be GRANTED, and that plaintiff's claims against defendant Schult be DISMISSED for failure to state a claim upon which relief may be granted, and that summary judgment be entered DISMISSING plaintiff's claims against defendant Poirier as a matter of law, both 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).
ORDERED the clerk is also serve a copy of the Report and Recommendation upon the parties in accordance with this court's local
Dated: January 19, 2011 Syracuse, NY