Stephens v. Venettozzi

Full title: BENJAMIN STEPHENS, Plaintiff, v. D. VENETTOZZI, et al., Defendants.

Court: UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

Date published: Feb 24, 2016

13-CV-5779 (RA) (DF) (S.D.N.Y. Feb. 24, 2016)

Opinion

13-CV-5779 (RA) (DF)

02-24-2016

BENJAMIN STEPHENS, Plaintiff, v. D. VENETTOZZI, et al., Defendants.

DEBRA FREEMAN United States Magistrate Judge

REPORT AND RECOMMENDATION

TO THE HONORABLE RONNIE ABRAMS, U.S.D.J.:

Pro se plaintiff Benjamin Stephens ("Plaintiff") brings this action under 42 U.S.C. § 1983, alleging that he suffered violations of his constitutional rights while incarcerated at Green Haven Correctional Facility ("Green Haven"). Currently before this Court for a report and recommendation are two motions to dismiss the Amended Complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure, by which four of the named defendants in this action (collectively, the "Moving Defendants") seek dismissal of the claims against them.

The first motion (Dkt. 118) was initially filed by 14 (of what, at that time, were 26) named defendants, but, with the assistance of pro bono counsel who then entered the case on Plaintiff's behalf to assist with this motion practice and discovery, Plaintiff voluntarily dismissed the action against 11 of those defendants, leaving the dismissal motion to be pursued only by defendants Superintendent William A. Lee ("Lee"), Correction Officer ("C.O.") Robert Snedeker ("Snedeker"), and C.O. Daniel D'Angelico ("D'Angelico"). The second motion (Dkt. 147) was separately filed by defendant Correctional Sergeant John Hann ("Hann"). For the reasons set forth below, I respectfully recommend that the motion by defendants Lee, Snedeker, and D'Angelico be granted in part (to the extent of dismissing certain of Plaintiff's claims against Lee), but otherwise denied, and that the motion by defendant Hann be denied in its entirety.

BACKGROUND

A. Factual Background ¹

1 To the extent that the facts set forth herein are taken from Plaintiff's Amended Complaint, they are accepted as true for the purposes of Defendants' motions. (See generally Am. Compl.; see Discussion, infra, at Section I(A).)

In his Amended Complaint, Plaintiff alleges that, between June 2010 and March 2012, several officers at Green Haven subjected him to a pattern of harassment and violence in retaliation for his filing of grievances and informal complaints. (See generally Amended Complaint, dated Dec. 3, 2014 ("Am. Compl.") (Dkt. 67).)² In particular, and as relevant to the pending motion, Plaintiff claims that he was subjected to the retaliatory use of excessive force in incidents that occurred on November 1, 2011, and March 23, 2012. (Id. ¶¶ 170-254.) Plaintiff does not allege, however, that any of the Moving Defendants personally assaulted him. Instead, as clarified in his opposition papers, Plaintiff contends that these four defendants bear responsibility for his injuries because they failed to intervene or protect him from violence perpetrated by other officers. (See Plaintiff Benjamin Stephens, Jr.'s, Opposition to Motion to Dismiss Claims Against 14 Defendants, dated Sept. 30, 2015 ("Pl. Mem.") (Dkt. 139), at 2; Memorandum of Law in Opposition to Defendant Sgt. Hann's Motion to Dismiss, dated Dec. 7, 2015 ("Pl. Mem. Hann") (Dkt. 161), at 1-2.) More specifically, Plaintiff claims that: (1) defendant Hann failed to intervene in the November 1, 2011 assault perpetrated by another officer (Carlson); (2) defendants Snedeker and D'Angelico failed to intervene in the March 23, 2012 assault perpetrated by another officer (Mrzyglod); and (3) Defendant Lee, as Superintendent of the facility, failed to protect him from both assaults, despite his actual knowledge - through receiving grievances and letters from Plaintiff - that Plaintiff had previously been subjected to harassment, threats, and violence in retaliation for his engaging in protected speech. (See generally Pl. Mem.; Pl. Mem. Hann.)

2 At this time, 16 named defendants remain in this action. In addition to the four Moving Defendants, these defendants are: (1) Donald E. Venettozzi, Assistant Director of DOCCS' Special Housing & Inmate Disciplinary Programs, (2) Bruce Levine, DOCCS Commissioner's Hearing Officer, (3) Mark A. Tokarz ("Tokarz"), Lieutenant at Green Haven, (4) Robert J. Cocuzza ("Cocuzza"), Sergeant at Green Haven, (5) Jason E. Destefano, C.O. at Green Haven, (6) Richard Smith, C.O. at Green Haven, (7) Ronald J. Corbin, C.O. at Green Haven, (8) Michael LePage, currently C.O. at Attica Correctional Facility, (9) Matthew W. Scull, currently Sergeant at Elmira Correctional Facility, (10) Michael F. Mrzyglod ("Mrzyglod"), Sergeant at Green Haven, (11) Sean D. Carlson ("Carlson"), C.O. at Green Haven, and (12) Donald J. Corbin, Jr. ("Corbin"), former C.O. at Green Haven.

1. Alleged Pattern of Retaliation Against Plaintiff , Prior to the Alleged Assaults at Issue ³

3 The facts in this subsection relate to events that occurred prior to the commencement of the three-year limitations period applicable to Plaintiff's claims. See Pearl v. City of Long Beach, 296 F.3d 76, 79 (2d Cir. 2002) (noting that, in New York, § 1983 claims are governed by three-year statute of limitations). In his opposition to the motion to dismiss filed by defendants Lee, Snedeker, and D'Angelico, Plaintiff clarifies that he has included these facts in his pleading only to demonstrate defendant Lee's knowledge of a prior pattern of retaliation against him, and that he does not seek to assert any claim accruing before April 16, 2011 - three years before the operative pleading was filed. (See Pl. Mem. at 11, 23; Discussion, infra, at Section II(D); see also Fitzgerald v. Henderson, 251 F.3d 345, 365 ("A statute of limitations does not operate to bar the introduction of evidence that predates the commencement of the limitations period but that is relevant to events during the period.").)

Plaintiff, who was an inmate at Green Haven at all times relevant to his claims, has a medical condition that prevents him from fully voiding his bladder, for which he takes medication to promote frequent urination. (Am. Compl. ¶ 3 & n.1.) On June 9, 2010, while Plaintiff was in the Green Haven clinic to obtain his medication, three correction officers - C.O. Philip Flora and defendants Corbin and DeStefano - denied Plaintiff's repeated requests to use the clinic's restroom. (Id. ¶¶ 5, 11-17.) While leaving the clinic, Plaintiff urinated in his pants, due to an inability to control his bladder. (Id. ¶¶ 19-20.) Plaintiff asked Corbin for permission to return to his housing block to change his clothes, but Corbin refused, forcing Plaintiff to wear the soaked clothes for another hour. (Id. ¶¶ 21-22.) With respect to this incident, Plaintiff filed grievance # GH-69773-10, which was denied by then-acting Superintendent Raymond Koskowski on the basis that the correction officers involved either denied or could not recall prohibiting Plaintiff from using the restroom on the date in question. (Id. ¶¶ 23-24.)

On August 6, 2010, as Plaintiff attempted to use the restroom in the same clinic, DeStefano stopped him and said: "Because you were stupid enough to grieve me about not letting you use this fuckin' [b]athroom, it'll be Out-of-Order whenever I'm here and you want to use it." (Id. ¶¶ 27-31.) Afterwards, Plaintiff approached defendant Cocuzza, a sergeant, and told him that he urgently needed to use the bathroom. (Id. ¶¶ 33-34.) Cocuzza stated that he could "only . . . be of any assistance" if Plaintiff gave him a pack of Marlboro cigarettes. (Id. ¶¶ 35-36.) When Plaintiff stated that he did not have any cigarettes on his person, Cocuzza walked away and placed an out-of-order sign on the door of the lavatory, and DeStefano then locked the door. (Id. ¶¶ 36-37.) Consequently, Plaintiff suffered pain and discomfort in his lower abdomen and ultimately urinated in his pants again. (Id. ¶¶ 38, 40-41.)

On August 9, 2010, in the clinic, Plaintiff overheard defendants Scull and LePage call him a "prick" for filing grievances against staff because they did not let him use the bathroom. (Id. ¶¶ 43-44) Later, when Plaintiff attempted to use the bathroom, LePage denied him access to it, causing Plaintiff to experience lower abdominal pain. (Id. ¶¶ 46-49.) Plaintiff's grievances regarding the August 6 and August 9 incidents were ultimately consolidated as # GH-70015-10. (Id. ¶ 42.)

On August 14, 2010, defendant Tokarz, who was assigned to investigate the consolidated grievance, interviewed Plaintiff in a "makeshift [c]ourt[r]oom." (Id. ¶¶ 54-58.) As Plaintiff tried to explain that his medical condition causes a frequent need to urinate, Tokarz exclaimed, "I don't give a fuck! You file all these [g]rievances and haven't won a single one. Keep filing these [g]rievances and I'll make your time here rougher than it is." (Id. ¶¶ 60-61.) Upon seeing Tokarz's reaction, Plaintiff asked to leave, but Tokarz denied his request. (Id. ¶ 62.) Plaintiff then took out a pen and a piece of paper and asked for Tokarz's name. (Id. ¶ 63.) After Tokarz answered, Plaintiff asked him to spell his name, but Tokarz refused. (Id. ¶¶ 63-64.) Plaintiff then mentioned that he would find out the spelling of Tokarz's name from Tokarz's son, who also worked in the facility. (Id. ¶ 65.) Upon hearing this, Tokarz ordered C.O. Robert Madigan, the other correction officer who was present, to leave the room. (Id. ¶ 66.) Tokarz then yanked Plaintiff up from his chair, slammed his head on the table, and struck Plaintiff on the back of the neck and buttocks with his baton, warning: "If you grieve me or my son, I'll have you killed! Stop grieving my Sergeants and Officers!" (Id. ¶¶ 66-67.) Tokarz then threw Plaintiff to the ground, causing Plaintiff to have a seizure when his head struck the floor. (Id. ¶ 68.)

After the seizure, Plaintiff regained consciousness in the facility's emergency room,⁴ and was later moved to the infirmary. (Id. ¶¶ 69, 72.) There, after Plaintiff had reported Tokarz's assault to nurse Salomy Ntambi (id. ¶¶ 76-77), Cocuzza and defendant Smith visited Plaintiff in the infirmary and ordered him to "get out of the bed" (id. ¶¶ 85-86). When Plaintiff refused, the pair slapped and punched Plaintiff in the face, with Cocuzza warning: "It's going to get wors[e] for you for grieving me." (Id. ¶¶ 85-87.) Plaintiff reported the attack by Cocuzza and Smith to Sergeant Orazio A. Bucolo and asked to file an "Inmate Injury Report."⁵ (Id. ¶ 92.) Subsequently, in the presence of C.O. David Thorne, Smith again punched Plaintiff in the face and told him to "handle it like a man," apparently in an attempt to dissuade Plaintiff from filing such a report. (Id. ¶ 96.)

4 In the emergency room, Plaintiff was assessed by nurse Jacqueline A. Stetz (a/k/a Stout), who informed Plaintiff that he had suffered a seizure, but did not discern or treat any injuries to Plaintiff's face. (Am. Compl. ¶ 71.)

5 Prior to Cocuzza's and Smith's visit, Sergeant Bucolo, who was covering for Cocuzza, briefly saw Plaintiff in the infirmary with C.O. Pauline Rabideau, and C.O. Rabideau took some photographs of Plaintiff's injuries while Plaintiff had most of his clothes on. (Am. Compl. ¶ 82.) Plaintiff later overheard Cocuzza say that they would adhere to E.R. nurse Stout's assessment, which made no mention of any facial injuries, and not redo an injury report. (Id. ¶ 84.)

On August 15, 2010, the next day, Plaintiff wrote a letter to Moving Defendant Lee, as Superintendent of Green Haven, to notify him of the August 14, 2010 assaults by Tokarz, Cocuzza, and Smith. (Id. ¶ 54.) He also filed grievance # GH-70083-10 with respect to these incidents. (Id. ¶¶ 120, 145-46.) At first, Plaintiff did not specifically identify Smith in this grievance, because he did not know his first or last name. (Id. ¶ 144.) Later, after learning Smith's name, Plaintiff filed a letter seeking to add Smith to grievance # GH-70083-10, but the correspondence was processed as a new grievance, # GH-70165-10. Additionally, in grievance # GH-70109-10, Plaintiff sought to exclude Tokarz and Cocuzza from investigating any of his future grievances, citing their past "harassment, retaliatory conduct, and assaultive behavior toward [Plaintiff]." (Id. ¶ 140.)

Also on August 15, 2014, the same day as Plaintiff filed his grievances, Tokarz issued Plaintiff an Inmate Misbehavior Report, alleging that Plaintiff had engaged in violent conduct and threats during the August 14, 2010 interview. (Id. ¶¶ 116-17.) Plaintiff alleges that Tokarz fabricated this report to cover up his own violent, retaliatory conduct. (Id.)

On September 13, 2010, after he was found guilty of violating facility rules during the August 14, 2010 interview, Plaintiff wrote to Superintendent Lee, outside of the formal disciplinary process, to inform him that there was a lack of substantial evidence to support the charges against him, and that his disciplinary proceedings were tainted by procedural violations. (Id. ¶ 126.) Lee wrote back, confirming that a request for discretionary review may be forwarded to the Superintendent, but suggesting that Plaintiff file an appeal with the CORC. (Id. ¶ 127.) Plaintiff filed an appeal, as suggested, and the CORC affirmed the result of the hearing. (Id. ¶¶ 128-29.) Plaintiff then requested discretionary review by Lee, but Lee denied the request, stating that the penalty imposed was appropriate. (Id. ¶ 132-33.)

On September 20, 2010, Plaintiff was brought to Cocuzza by Smith and Corbin for the purpose of investigating grievance # GH-70165-10, which specifically named only Smith, but involved an assault allegedly perpetrated by both Smith and Cocuzza. (Id. ¶¶ 148-54.) Cocuzza informed Plaintiff that he had been assigned to handle the grievance, and that he "was tired of [Plaintiff's] complaining." (Id. ¶¶ 154-55.) As Cocuzza spoke, Smith and Corbin punched and slapped the back of Plaintiff's head, and Corbin applied a chokehold on Plaintiff for several seconds. (Id. ¶¶ 155-56.) Cocuzza then threatened Plaintiff, stating that, if Plaintiff complained about what happened during this interview, he would be "set-up with a weapon," confined in a special housing unit, and seriously injured. (Id. ¶ 157.) Fearing for his own safety, Plaintiff complied and did not pursue any internal grievance regarding this incident. (Id. ¶ 158.) Plaintiff did, however, inform the Office of the Attorney General of these events through a Verified Notice of Intention to File a Claim. (Id. ¶ 161.)

2. Moving Defendant Lee's Responses to Plaintiff's Grievances

On September 7, 2010, Superintendent Lee, relying on Tokarz's interview findings, denied Plaintiff's consolidated grievance # GH-70015-10, which concerned the two bathroom incidents in August 2010. (Id. ¶¶ 42, 50.) In doing so, Lee stated:

The grievant (Plaintiff) alleges he was harassed and prevented from using the bathroom while in the Clinic. The grievant was

interviewed by [Lieutenant Tokarz].⁶ . . . During this interview the grievant was uncooperative and refused to identify any witnesses. He stated . . . he saw no need to discuss the matter with [Lieutenant Tokarz]. [Lieutenant Tokarz] interviewed [Sergeant Cocuzza,] and the Sgt. states he has never spoken with the grievant. Sgt. C. has submitted a written statement . . . he says the bathroom in the Clinic is located adjacent to the ER and there are times when there are emergencies: KL (Keep-Lock) medication, SHU (Special Housing Unit) inmates, insulin medication, etc. . . . going on in that area which, for security reasons, would prevent inmate access to the lavatory at those times. CO Lepage, CO Scull, and CO Destefano have submitted statements saying they allow inmates to utilize the bathroom, unless, for security reasons, the bathroom is not accessible to inmates. They recall no incident on the dates in question. Their statements say that at no time have they conspired with anyone to not allow the grievant or any other inmate to use the bathroom.

(Id. ¶ 51.)⁷

6 Moving Defendant Lee identified the interviewing lieutenant as "Deegan," rather than "Tokarz." Plaintiff states, however, that he confirmed that the interviewing lieutenant was actually named Tokarz. (Id. ¶ 51 n.11.)

7 For clarity, the Court reproduces this and subsequent excerpts of Lee's grievance decisions with limited alterations, such as omitting redundant brackets and spelling out officers' full names instead of using abbreviations.

On October 6, 2010, Lee, based on Cocuzza's investigation, denied grievance # GH-70165-10, which named Smith as the subject of the grievance, but related to the assaults allegedly perpetrated by Tokarz, Smith, and Cocuzza. (Id. ¶ 162.) Lee found:

The grievant is alleging he was assaulted. According to the investigation, the grievant's allegations cannot be substantiated. The grievant was interviewed by a security supervisor ([S]ergeant Cocuzza) and had nothing further to add to this complaint. The Sgt. also interviewed the officer named in this grievance (CO Smith), and the officer has submitted a written statement as well. The officer states that at no time did he speak to the grievant. . . . Medical was asked if the grievant had reported to the medical staff allegations of being assaulted, and if there were any injuries noted in his chart, there was not. Grievance is denied.

(Id. (alteration in original).) Plaintiff alleges that Lee improperly allowed Cocuzza to investigate this matter, despite the fact that he had personally participated in the events underlying the grievance.⁸ (Id. ¶ 147.)

8 The CORC upheld Lee's determination on appeal and noted that it had not been improper to assign Cocuzza to investigate the grievance because he had not been named as a direct party to the grievance. (Id. ¶ 163.)

On December 7, Lee also denied grievance # GH-70083-10, finding that Plaintiff's allegations against Tokarz regarding the assaults during the August 14 interview were unsubstantiated:

Grievant alleges he was assaulted. Grievant was interviewed by Captain Royce on 10/7/10 regarding his grievance. The grievant had nothing further to add to his grievance. [Lieutenant Tokarz] has responded and denie[d] striking inmate Stephens. CO Madigan reports entering the court room at the request of [Lieutenant Tokarz] and observing the inmate apparently having a seizure, the inmate was on the floor and banging on the right side of his face on the floor. The grievant's assertion that he was assaulted by staff is unsubstantiated. The grievant is advised that his complaint is also the subject of an Inspector General's Office investigation. Grievance is denied.

(Id. ¶ 120 (alteration in original).) Despite the fact that Plaintiff had alleged that he was also assaulted in the infirmary by Cocuzza and Smith, Lee's decision did not address these allegations. (Id. ¶ 121.)

Finally, Lee denied grievance # GH-70109-10 (which sought to exclude Tokarz and Cocuzza from investigating Plaintiff's grievances), on the basis that "[a]ll grievances are investigated in accordance with Directive 4040," which provides that "[i]nvestigations are assigned to the security supervisor assigned to the area the complaint is about." (Id. ¶ 141.)

3. The November 1 , 2011 Assault and Related Events

Between February 2011 and October 2011, Plaintiff was housed in E-Block, and, during that period, he reported no incidents of retaliation or excessive force. (Id. ¶ 175.) Then, on October 20, 2011, Plaintiff was moved to A-Block "for unknown reason[s]." (Id.)

On October 26, 2011, Plaintiff wrote to Superintendent Lee to request an immediate transfer from A-Block. (Id. ¶ 171; see also Declaration of Christopher J. Stanley, Esq., in Support of Plaintiff's Opposition to Motion to Dismiss Claims Against 14 Defendants, dated Sept. 30, 2015 ("9/30/15 Stanley Decl.") (Dkt. 140), Ex. A (Letter from Plaintiff to Lee, dated Oct. 26, 2011).) In the letter, Plaintiff expressed fear that he would be "physically assaulted, issued fabricated Misbehavior Reports, falsely accused of possessing . . . contraband [and] falsely accused of physically assaulting staff." (Am. Compl. ¶ 171; 9/30/15 Stanley Decl., Ex. A, at 1.) Plaintiff attributed this fear to three recent guard-on-inmate assaults in A-Block, which Plaintiff had learned about from other inmates, and the fact that one of the officers who had previously assaulted him regularly worked on "Tour Two" in A-Block.⁹ (Am. Compl. ¶ 171; 9/30/15 Stanley Decl., Ex. A, at 2-3.) Plaintiff further stated that, since his assignment to A-Block, he had already been verbally harassed by two Tour Two A-Block officers, and that he "seriously fear[ed] that, if allowed to remain in A-Block any longer, [he would] be physically assaulted."¹⁰ (9/30/15 Stanley Decl., Ex. A, at 5.) Plaintiff therefore requested Lee's assistance in "effect[ing] [his] immediate removal from A-Block and placement in an appropriate [Green Haven] housing block." (Id., at 6.)

9 While the officer in question was Corbin, Plaintiff did not name Corbin or any other officer in the letter, out of fear of reprisal and on the advice of his social worker. (Am. Compl. ¶¶ 172, 174, 176.)

10 Plaintiff also stated that Green Haven staff would likely attempt to cover up the assault by fabricating accusations against him, and that it was "common knowledge" that many staff-on-inmate assaults took place during pat frisks. (9/30/15 Stanley Decl., Ex. A, at 5.)

On October 28, 2011, Lee denied Plaintiff's request for a transfer, stating:

Your request to move is based on speculation and assumption. You make references to staff members that you claim either harassed you or acted inappropriately. You do not, however, identify any particular individual. If you wish to make a complaint about the actions of a particular employee, you may utilize the Inmate Grievance Program, or directly address correspondence to me regarding the matter. In either case, however, you would need to identify who you are alleging is acting inappropriately to allow your claim to be investigated. Your request to be moved is denied.

(Id. ¶ 178 (alteration in original).)

A few days later, on the morning of November 1, 2011, as Plaintiff was getting breakfast in the dining area, defendant Carlson approached him and asked, "What did you place in your pocket?" (Id. ¶ 185.) Plaintiff replied, "What are you talking about? I have only a wallet and [] pen in my pockets." (Id. ¶ 186.) Carlson then ordered Plaintiff to leave his food and tray behind and exit the area. (Id.) As Plaintiff left the area with Carlson, he observed Hann, a sergeant and area supervisor (and one of the Moving Defendants), standing immediately near the entrance/exit of the dining area. (Id. ¶ 188.) Plaintiff and Carlson walked toward a wall-mounted stretcher, which was outside the B & C-Corridor gate control booth. (Id. ¶ 189.) Carlson then ordered Plaintiff to stop, empty his pockets, and place his hands on the wall in a pat-frisk position; Plaintiff fully complied with these directions. (Id.) Carlson said: "Me and other [o]fficers in the Block know about your bullshit letter to the Superintendent, complaining about us and your fuckin' fears. If you know what's best for you, don't ever mention my name in your fuckin' letters or mouth; do I make myself absolutely clear?" (Id. ¶ 190.) When Plaintiff refused to respond, Carlson said, "So . . . you want to be a smart-ass?" (Id. ¶ 191.) Carlson then "stepped directly behind" Plaintiff, "pull[ed] on and ball[ed] up Plaintiff's shirt collar," making it "taut and choking-tight around his neck," "grabbed the back-center[] waistband of Plaintiff's pants[,] and forcefully yank[ed] such pants" so that they became "extremely taut in the crouch area." (Id. ¶ 191.) Carlson then placed his hand near Plaintiff's right ankle, thrust his hand up Plaintiff's right leg and into his testicles and crotch, and repeated this action on Plaintiff's left side. (Id.) During the pat frisk, Plaintiff "briefly looked toward" the dining area entrance and observed Hann, who was standing immediately outside that entrance, "looking in the direction of [Plaintiff] and [Defendant] Carlson." (Id. ¶ 192.) Hann did not intercede or stop the alleged assault. (Id. ¶ 193.)

After this incident, another correction officer searched Plaintiff's property, returned the items to Plaintiff's pocket, and escorted Plaintiff back to his housing block. (Id. ¶¶ 196-97.) On the same day, because of the pain and discomfort in his neck and testicles, Plaintiff placed a request to be called out for medical care. (Id. ¶ 200.) Plaintiff filed grievance # GH-72219-11 regarding the pat frisk and separately wrote a letter of complaint to Superintendent Lee. (Id. ¶¶ 201, 205.)

On November 2, 2011 (the day after the incident), Carlson filed a Misbehavior Report against Plaintiff, accusing him of violating five facility rules. (Id. ¶ 202.) Following a disciplinary hearing, Plaintiff was found guilty of three of the five violations and received a sanction of 30-days keeplock confinement and loss of package, phone, and commissary privileges. (Id. ¶¶ 210, 213.) Plaintiff unsuccessfully appealed the hearing result, and, in December 2011, Lee denied Plaintiff's request for reconsideration. (Id. ¶¶ 211-12, 220.) On December 22, 2011, Lee also denied grievance # GH-72219-11 with respect to Carlson's alleged assault on November 1, 2011, finding:

Grievant alleges he was harassed by an officer. . . . The grievant requested staff members that did not observe the pat frisk in the corridor. The grievant requested a witness (07A4957) be interviewed.¹¹ . . . Inmate 07A4957 (I/M B) was interviewed by a security supervisor (Sergeant Alexander) on 12/19/11. Inmate 07A4957 stated that he did see the grievant pat frisked. The security supervisor states that 07A4957 did not state that he heard any threatening statements or harassment by the officer named in this complaint (Carlson). The officer named in this complaint was interviewed by [Sergeant Alexander]. The officer has submitted a written statement denying the grievant's allegations. The officer states that at no time did he choke or strike the grievant during the pat frisk in question. He states that he performed the pat frisk according to departmental procedures. He states that on 11/1/11 the grievant was issued a [MBR] for creating a disturbance, harassment, refusing direct order, movement regulation violation, mess hall serving/seating violation. . . . CO Finn was in B&C Corridor on the date in question and he has submitted a written statement saying that he observed the pat frisk in question, and at no time was the grievant harassed, threatened, or abused during the 11/1/11 pat frisk. According to the investigation[,] the grievant's allegations could not be substantiated. Grievance is denied.

(Id. ¶ 206.)

11 Plaintiff has now identified two other inmates who stated that they had witnessed the allegedly abusive pat frisk, but it appears that he did not request that these two witnesses be interviewed. (Am. Compl. ¶ 191 n.32.)

Also on November 2, 2011, Plaintiff was transferred from A-Block back to E-Block. (Id. ¶ 226.) Following the transfer, Green Haven staff failed to escort Plaintiff to a scheduled medical appointment, prompting Plaintiff to place an emergency sick-call request. (Id. ¶ 228.) Upon receiving the request, C.O. Keith G. Chase ("Chase") escorted Plaintiff to the clinic, but complained that it was not a medical emergency. (Id. ¶¶ 233-36.) In the clinic, in the presence of others, Chase loudly read out Plaintiff's medical problems as they appeared on the sick-call request. (Id. ¶ 237.) After exiting the clinic, Chase asked to check Plaintiff's identification card and said to Plaintiff: "If your complaining has anything to do with Officer Carlson's pat frisk yesterday, I'd advise you not to pursue this any further. Officer Carlson is my buddy, and we can cause all sort of problems for you - no matter where you are housed at this facility." (Id. ¶ 250.) Chase then threw Plaintiff's card back, hitting Plaintiff in the forehead. (Id. ¶ 251.) Plaintiff filed grievance # GH-72216-11 against Chase, which Lee rejected on the basis that Chase denied engaging in any harassment, threat, or other misconduct towards Plaintiff. (Id. ¶¶ 252-53.)

4. The March 23 , 2012 Assault and Related Events

On March 23, 2012, in the dining area for E-block inmates, Plaintiff observed defendant Mrzyglod¹² talking with Cocuzza. Later, Mrzyglod, accompanied by C.O.s Snedeker and D'Angelico (two of the Moving Defendants here), directed Plaintiff to leave the food line and enter a strip search room adjacent to E-block. (Id. ¶¶ 256-61, 264.) Plaintiff entered the room alone with Mrzyglod. (Id. ¶ 265.) Snedeker and D'Angelico, who, according to Plaintiff, were not assigned to work in E-block, stood just outside the door. (Id. ¶¶ 264-66.)

12 On March 23, 2012, Mrzyglod was a C.O. (Def. Mem. at 7.) Since then, Mrzyglod has been promoted to Sergeant. (7/2/2015 Answer ¶ 2.)

Inside the room, Mrzyglod directed Plaintiff to sit at a desk, upon which Mrzyglod had already placed a large manila envelope. (Id. ¶ 267.) Mrzyglod then emptied the envelope; its contents were personal effects that had been taken from Plaintiff's cell, including photographs, correspondence with Plaintiff's attorney, and copies of grievances filed by Plaintiff. (Id. ¶¶ 267-68.) Mrzyglod called Plaintiff a "'thorn' in 'a lot of asses,'" and stated that Plaintiff had "better write" a statement withdrawing any pending grievances against Green Haven officers, if he desired the return of his personal property. (Id. ¶¶ 267-72.) When Plaintiff refused to do so, Mrzyglod punched Plaintiff twice on the left side of his face, warning that he "could seriously hurt" Plaintiff if he "play[ed] hardass." (Id. ¶ 272.) Plaintiff continued to refuse to withdraw his grievances. (Id. ¶ 273.) Mrzyglod then yanked Plaintiff out of his chair, pinned him down on a "bed/mattress frame," and punched Plaintiff twice more in the face. (Id.)

After that, Mrzyglod briefly left the room and told Plaintiff to "get smart and start writing." (Id. ¶ 274.) Upon returning and observing that Plaintiff had not written anything, Mrzyglod choked Plaintiff with both of his hands. (Id. ¶¶ 275-76.) After Plaintiff again refused to write anything, Mrzyglod punched Plaintiff in the face once more, warned him not to tell anyone about their "little chat," and brought him out of the room. (Id. ¶ 277.) On his way out, Plaintiff observed Snedeker and D'Angelico standing immediately outside, smiling. (Id. ¶ 278.) As Plaintiff made his way back to his cell, he became dizzy and sat on the floor to wait for medical assistance. (Id. ¶¶ 279-89.)

Subsequently, Mrzyglod went to the emergency room and warned Plaintiff not to report the assault, calling Plaintiff "a real punk." (Id. ¶¶ 287, 292-93.) Plaintiff reported the assault to medical staff, had his injuries photographed, and filled out an Inmate Injury Report. (Id. ¶¶ 294-99.) After Plaintiff returned the injury report to one of the nurses, Cocuzza entered the emergency room, warned Plaintiff not to report the assault, and suggested that Plaintiff attribute his injuries to falling down the stairs. (Id. ¶¶ 305-07, 309.) Subsequently, Plaintiff filed grievance # GH-73040-12; Lee denied that grievance and advised Plaintiff that the incident was being investigated by the Office of the Inspector General. (Id. ¶¶ 311-12.)

As a result of the March 23, 2012 assault, Plaintiff suffered facial swelling, pain, bruising, bleeding, a broken tooth, and hearing loss in his left ear. (Id. ¶¶ 296, 314-16.)

B. Procedural History

On July 30, 2013, Plaintiff filed his original pro se Complaint against nine defendants, alleging that they had subjected him to retaliatory harassment, threats, and physical assaults at Green Haven. (See Complaint, dated July 30, 2013 (Dkt. 2).) On December 3, 2014, Plaintiff filed a pro se Amended Complaint, this time naming 26 defendants - the nine defendants he had originally named, plus an additional 17 defendants - asserting claims for retaliation, excessive force, denial of disciplinary due process, and inadequate medical care. (See generally Am. Compl.)

On June 19, 2015, 14 of the 26 defendants moved to dismiss the claims against them on the grounds that: (1) Plaintiff's claims against them were barred by the 11th Amendment to the extent that Plaintiff sought monetary damages from them in their official capacities; (2) defendant CORC was not a suable entity; (3) Plaintiff failed to state claims against them upon which relief could be granted; (4) they were entitled to qualified immunity; and (5) certain of Plaintiff's claims were barred by the statute of limitations. (See Notice of Defendants' Motion to Dismiss Claims Against 14 Defendants, dated June 19, 2015 (Dkt. 118); see generally Memorandum of Law in Support of Motion to Dismiss Claims Against 14 Defendants, dated June 19, 2015 ("Def. Mem.") (Dkt. 119).)

On September 30, 2015, with the assistance of pro bono counsel,¹³ Plaintiff filed (1) a notice of voluntary dismissal (Dkt. 142), withdrawing his claims against 11 of the 14 defendants who had moved to dismiss (all except for Lee, Snedeker, and D'Angelico), and (2) a memorandum of law in opposition to the motion (see Pl. Mem.), addressing the arguments made by Lee, Snedeker, and D'Angelico. In his opposition brief, Plaintiff clarified that he is not pursuing any due-process claim against defendant Lee relating to the treatment or resolution of Plaintiff's grievances, but rather is pursuing claims that Lee, in his capacity as a supervisor, had failed to protect Plaintiff from violence at the hands of other prison officials. (Pl. Mem. at 11, 23.)¹⁴ Plaintiff also submitted an attorney declaration (see 9/30/15 Stanley Decl.), attaching as exhibits a copy of Plaintiff's October 26, 2011 letter to Lee, in which Plaintiff had requested a housing transfer away from A-Block (id., Ex. A), and a 2006 report on Green Haven by the Correctional Association of New York, (id., Ex. B). On October 30, 2015, Lee, Snedeker, and D'Angelico filed a reply memorandum in further support of their motion to dismiss. (See Def. Reply.)

13 While Plaintiff originally filed this action pro se, this Court, on June 22, 2015, granted Plaintiff's application for the Court to request pro bono counsel for the limited purposes of: (1) opposing the pending motion to dismiss; and (2) conducting certain discovery in this action. (See Order Granting Pro Bono Counsel for Opposition to Motion and Limited Discovery, dated June 22, 2015 (Dkt. 123).) On July 10, 2015, Plaintiff's counsel entered notices of their limited appearances. (Dkts. 130, 131.)

14 In clarifying the scope of his claims against Lee, Plaintiff stated that he is only suing Lee for his failure to protect Plaintiff from serious harm that occurred within the limitations period, "including Lee's failure to prevent the November 1, 2011 and March 23, 2012 assaults." (Pl. Mem. at 23 (emphasis added).) Although Plaintiff's use of the word "including" seems open ended, the Amended Complaint does not allege that Plaintiff suffered any serious injury within the limitations period, other than as a result of the alleged November 1, 2011 and March 23, 2012 assaults. This Court therefore construes Plaintiff's clarifying statement to mean that he is only asserting claims against Lee relating to these two incidents.

On November 9, 2015, defendant Hann filed a separate motion to dismiss the claims against him, on the grounds that: (1) he was entitled to 11th Amendment immunity to the extent that Plaintiff sought monetary damages from him in his official capacity; (2) Plaintiff failed to state any claim against him upon which relief could be granted; (3) Plaintiff failed to allege that he acted with a retaliatory motive; and (4) he was entitled to qualified immunity. (See Notice of Defendant Hann's Motion to Dismiss the Amended Complaint, dated Nov. 9, 2015 (Dkt. 147); see generally Memorandum of Law in Support of Defendant Sgt. Hann's Motion to Dismiss, dated Nov. 9, 2015 ("Def. Hann Mem.") (Dkt. 148).) On December 7, 2015, with the assistance of counsel, Plaintiff filed a memorandum in opposition to Hann's motion. (See Pl. Mem. Hann.) Plaintiff also submitted an attorney declaration (Declaration of Christopher J. Stanley in Support of Plaintiff's Opposition to Defendant Hann's Motion to Dismiss, dated Dec. 7, 2015 ("12/7/15 Stanley Decl.") (Dkt. 162)), attaching as exhibits a copy of Plaintiff's October 26, 2011 letter to Lee (id., Ex. A) and the transcript of a May 28, 2010 oral argument concerning a summary judgment motion filed in Lewis v. Fischer, No. 08-CV-3027 (JG) (LB), 2009 WL 689803 (E.D.N.Y. May 28, 2010), (id., Ex. B). As he did in connection with his claims against Lee, Plaintiff also used his opposition to clarify the nature of his claims against Hann, explaining that he had not intended to assert any retaliation claim against Hann under the First Amendment, but rather a failure-to-intervene claim. (Pl. Mem. Hann at 13 n.4.) Plaintiff also requested oral argument on the motion. (Id., at 1.) On December 22, 2015, Defendant Hann filed a reply memorandum on his motion to dismiss. (See Reply Memorandum of Law in Further Support of Defendant Sgt. Hann's Motion to Dismiss, dated Dec. 22, 2015 ("Def. Hann Reply") (Dkt. 163).)

In summary, 15 defendants currently remain in this action, 11 of whom have answered the Amended Complaint (see Answer (for 9 Defendants), dated Jan. 26, 2015 (Dkt. 79); Answer (for Carlson and Mrzyglod), dated July 2, 2015 ("7/2/2015 Answer") (Dkt. 127)), and four of whom have moved to dismiss the claims against them. The claims at issue on the two dismissal motions before the Court are as follows:

(1) Plaintiff's claim against defendant Hann for his failure to intervene in Carlson's alleged use of excessive force on November 1, 2011, when Hann was allegedly able to observe Carlson's assault of Plaintiff from a position down the hall;

(2) Plaintiff's claims against defendants Snedeker and D'Angelico, for their failure to intervene in Mrzyglod's alleged use of force on March 23, 2012, when Snedeker and D'Angelico were allegedly stationed outside a door, with knowledge that Myzyglod was assaulting Plaintiff behind the door; and

(3) a claim against Lee for his failure to protect Plaintiff from both the November 1, 2011 and March 23, 2012 assaults, when Lee allegedly had advance knowledge, by way of Plaintiff's grievances and letters, that Plaintiff was at risk.¹⁵

15 Based on Plaintiff's opposition papers on the pending motions, it is this Court's understanding that, despite any potential ambiguities in Plaintiff's pro se Amended Complaint, he is not attempting to assert (a) claims against defendant Lee that arose before the commencement of the limitations period, (b) Section 1983 claims for damages against any of the Moving Defendants in their official capacities, or (c) state-law claims against any of the Moving Defendants. (See Pl. Mem. at 23-24; Pl. Hann Mem. at 2.) Accordingly, this Report and Recommendation will not address any arguments raised by the Moving Defendants against such potential claims.

DISCUSSION

I. APPLICABLE LEGAL STANDARDS

A. Rule 12(b)(6)

A complaint may be dismissed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure where it fails to state a claim upon which relief can be granted. Fed. R. Civ. P. (12)(b)(6). In deciding a motion to dismiss, the Court must "accept as true all factual statements alleged in the complaint and draw all reasonable inferences in favor of the non-moving party." McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007); accord Jaghory v. New York State Dep't of Ed., 131 F.3d 326, 329 (2d Cir. 1997). The issue is not whether the plaintiff will ultimately prevail, but whether his claim, as pleaded, is sufficient to afford him the opportunity to proceed on the evidence. See Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir. 1998).

The court's function on a motion to dismiss is "not to weigh the evidence that might be presented at trial but merely to determine whether the complaint itself is legally sufficient." Kopec v. Coughlin, 922 F.2d 152, 155 (2d Cir. 1991) (citation omitted). At the same time, "conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to defeat a motion to dismiss." Achtman v. Kirby, McInerney, & Squire, LLP, 464 F.3d 328, 337 (2d Cir. 2006) (citation omitted). To survive a motion to dismiss, a complaint "must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic v. Twombly, 550 U.S. 544, 570 (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." Starr v. Sony BMG Music Entm't, 592 F.3d 314, 321 (2d Cir. 2010) (quoting Iqbal, 556 U.S. at 666), cert. denied, 131 S. Ct. 901 (2011).

Additionally, "[i]t is well established that the submissions of a pro se litigant must be construed liberally and interpreted 'to raise the strongest arguments that they suggest.'" Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (collecting cases); see also Hughes v. Rowe, 449 U.S. 5, 9-10 (1980) (noting that a pro se party's pleadings must be liberally construed in his favor and are held to a less stringent standard than the pleadings drafted by lawyers); Lerman v. Bd. Of Educ., 232 F.3d 135, 139-40 (2d Cir. 2000) ("Since most pro se plaintiffs lack familiarity with the formalities of pleading requirements, [a court] must construe pro se complaints liberally, applying a more flexible standard to evaluate their sufficiency."). This is especially true in the context of civil rights complaints. See Weinstein v. Albright, 261 F.3d 127, 132 (2d Cir. 2001); see also Gregory v. Daly, 243 F.3d 687, 691 (2d Cir. 2001) (noting that a court must be "mindful of the care exercised in this Circuit to avoid hastily dismissing complaints of civil rights violations").

On a motion to dismiss a complaint, a court is generally constrained to look only to the pleadings. See Fed. R. Civ. P. 12(b); Calcutti v. SBU, Inc., 273 F. Supp. 2d 488, 492 (S.D.N.Y. 2003). Nonetheless, the mandate that a pro se plaintiff's complaint be construed liberally makes it appropriate for the court to consider the factual allegations in a pro se plaintiff's opposition materials to supplement the allegations in the complaint. See Johnson v. Wright, 234 F. Supp. 2d 352, 356 (S.D.N.Y. 2002); see also Sommersett v. City of New York, No. 09cv5916, 2011 WL 2565301, at *3 (S.D.N.Y. June 28, 2011) ("[W]here a pro se plaintiff has submitted other papers to the [c]ourt, such as legal memoranda, the [c]ourt may consider statements in such papers to supplement or clarify the plaintiff's pleaded allegations.").¹⁶ A court may also consider certain additional materials, including documents attached to the complaint as exhibits or incorporated therein by reference, matters of which judicial notice may be taken, and documents that are "integral" to the complaint. Calcutti, 273 F. Supp. 2d at 498 (citing Brass v. American Films Tech., 987 F.2d 142, 150 (2d Cir. 1993); Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002)).

16 At the time that Plaintiff filed his Amended Complaint, he appeared pro se. This Court will therefore read Plaintiff's pleading with "special solicitude, interpreting the [Amended Complaint] to raise the strongest claims that it suggests." Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011) (internal quotation marks and citation omitted). On the other hand, Plaintiff's submissions in opposition to the Moving Defendants' motions to dismiss were prepared with the assistance of counsel, and they are therefore not entitled to the same solicitude. See Marchand v. Simonson, 16 F. Supp. 3d 97, 106-07 (D. Conn. 2014) ("As Plaintiffs attorney . . . filed an opposition to defendants motion for summary judgment on plaintiff's behalf, the Court need not apply the liberal pro se construction in considering plaintiff's opposition. However, the Court has taken into consideration plaintiff's pro se status at the time he filed his amended complaint in construing that filing."); Pflaum v. Town of Stuyvesant, 937 F. Supp. 2d 289, 295 n.1 (N.D.N.Y. 2013) (applying rule of liberal construction to pro se pleading, but not to opposition memorandum of law, where the plaintiff had commenced the action pro se, but obtained counsel before opposing motion to dismiss).

"[T]he decision whether or not to hold an oral hearing on a motion to dismiss lies in the sound discretion of the trial court." Greene v. WCI Holdings Corp., 136 F.3d 313, 316 (2d Cir. 1998).¹⁷

17 In this instance, this Court has opted to issue this Report and Recommendation without hearing oral argument on the pending motions, as the parties' respective positions are clear from their submitted briefing.

B. Failure To Intervene To Stop Use of Excessive Force

To state an excessive-force claim under the Eighth Amendment, a plaintiff must satisfy a two-pronged test consisting of both objective and subjective elements. See Sims v. Artuz, 230 F.3d 14, 20-21 (2d Cir. 2000). "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.'" Id. (quoting Blyden v. Mancusi, 186 F.3d 252, 262 (2d Cir. 1999). In this regard, "the core judicial inquiry is . . . whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm." Hogan v. Fischer, 738 F.3d 509, 516 (2013) (quoting Hudson v. McMillian, 503 U.S. 1, 6-7 (1992)). With respect to the objective prong of the test, an inmate must establish that the conduct alleged was "sufficiently serious," such that it implicates the Eighth Amendment's prohibition against cruel and unusual punishment. See Hogan, 738 F.3d at 515 (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)). This context-specific inquiry focuses on whether the nature and level of force used against the plaintiff violated "contemporary standards of decency." Wilkins v. Gaddy, 559 U.S. 34, 37 (2010). Thus, while de minimis uses of force are "necessarily exclude[d] from constitutional recognition," a prisoner need not allege that he suffered a "certain quantum of injury" in order to state an excessive-force claim under the Eighth Amendment. Id. Rather, "when prison officials maliciously and sadistically use force to cause harm, contemporary standards of decency always are violated . . . whether or not significant injury is evident." Hudson, 503 U.S. at 9; see also Wilkins, 559 U.S. at 38 ("Injury and force . . . are only imperfectly correlated, and it is the latter that ultimately counts.").

Moreover, "[i]t is widely recognized that all law enforcement officials have an affirmative duty to intervene to protect the constitutional rights of citizens from infringement by other law enforcement officers in their presence." Allen v. City of New York, 480 F. Supp. 2d 689, 694 (S.D.N.Y. 2007) (quoting Anderson v. Branen, 17 F.3d 552, 557 (2d Cir. 1994)). A correction officer who fails to intervene to prevent the use of excessive force against a prisoner is therefore "liable for the preventable harm caused by the actions of the other officers where that officer observes . . . that excessive force is being used." Tavares v. City of New York, No. 08cv3782 (PAE) (JCF), 2011 WL 5877550, at *7 (S.D.N.Y. Oct. 17, 2011), report and recommendation adopted by 2011 WL 5877548 (S.D.N.Y. Nov. 23, 2011). To state a claim for a prison official's failure to intervene, a plaintiff must allege facts showing that: "(1) the officer had a realistic opportunity to intervene and prevent the harm; (2) [the officer knew] that the victim's constitutional rights were being violated; and (3) the officer [did] not take reasonable steps to intervene." See Jean-Laurent v. Wilkinson, 540 F. Supp. 2d 501, 512 (S.D.N.Y. 2008). "'Whether an officer had sufficient time to intercede or was capable of preventing the harm being caused by another officer is a question of fact,' unless the evidence shows that 'a reasonable jury could not possibly conclude otherwise.'" Toliver v. City of New York, No. 10cv5806 (SHS) (JCF), 2013 WL 6476791, at *3 (S.D.N.Y. Dec. 10 2013) (quoting 17 F.3d at 557), report and recommendation adopted by 2014 WL 549402 (S.D.N.Y. Feb. 11, 2014).

C. Supervisory Liability for Failure To Protect

The Eighth Amendment not only prohibits the excessive use of force, but also "requires prison officials to take reasonable measures to guarantee the safety of inmates in their custody." Hayes v. N.Y. City Dep't of Corr., 84 F.3d 614, 620 (2d Cir. 1996) (citing Farmer v. Brennan, 511 U.S. 825, 833 (1994)). To prevail on a claim that officials have failed to protect an inmate from harm, a plaintiff must demonstrate that, objectively, the conditions of his incarceration posed a substantial risk of serious harm and, subjectively, that the defendant acted with deliberate indifference. See Farmer, 511 U.S. at 834; Dawes v. Walker, 239 F.3d 489, 493 (2d Cir. 2001). "[A] prison official acts with deliberate indifference and thus 'has sufficient culpable intent if he has knowledge that an inmate faces a substantial risk of serious harm and he disregards that risk by failing to take reasonable measures to abate the harm.'" Lee v. Artuz, No. 96cv8604 (JGK), 2000 WL 231083, at *5 (S.D.N.Y. Feb. 29, 2000) (quoting Hayes, 84 F.3d at 620).

While a failure-to-protect claim can be premised on a supervisory official's failure to prevent violence perpetrated by other officers, see Carter v. Kiernan, No. 98cv2664 (JGK), 2000 WL 760303, at *6 (S.D.N.Y. June 12, 2000) ("Just as prison officials may be liable for their deliberate indifference in failing to protect inmates from fellow inmates, prison officials may also be liable for their deliberate indifference in failing to protect inmates from violence by subordinates."), the supervisor cannot be held vicariously liable for the actions of his subordinates under a respondeat superior theory, see Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). Instead, to state a failure-to-protect claim under Section 1983, a plaintiff must allege facts showing the defendant's personal involvement in the claimed constitutional violation. See Spavone v. N.Y. State Dep't of Corr. Serv., 719 F.3d 127, 135 (2d Cir. 2013) (citing Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995)); see also Iqbal, 556 U.S. at 676 ("[V]icarious liability is inapplicable to Bivens and § 1983 suits."). The fact that a defendant employs or supervises a person who violated the plaintiff's rights is insufficient to demonstrate that defendant's personal involvement. See Richardson v. Goord, 347 F.3d 431, 435 (2d Cir. 2003) ("[M]ere 'linkage in the prison chain of command' is insufficient to implicate a state commissioner of corrections or a prison superintendent in a § 1983 claim." (quoting Ayers v. Coughlin, 780 F.2d 205, 210 (2d Cir. 1985)).

In Colon v. Coughlin, the Second Circuit held that a supervisor's personal involvement in a constitutional deprivation can be based on facts showing that the defendant: (1) directly participated in the violation; (2) failed to remedy that violation after learning of it through a report or appeal, (3) created, or allowed to continue, a policy or custom under which the violation occurred, (4) had been grossly negligent in supervising subordinates who committed the violation, or (5) exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that the violation was occurring. Colon, 58 F.3d at 873. "In Iqbal, however, the Supreme Court held that a supervisor's awareness of his subordinate's discriminatory intent was insufficient, by itself, to support a discrimination claim against the supervisor." Salvatierra v. Connolly, No. 09cv3722 (SHS) (DF), 2010 WL 5480756, at *15 (S.D.N.Y. Sept. 1, 2010) (citing Iqbal, 556 U.S. at 676-77), report and recommendation adopted by 2011 WL 9398 (S.D.N.Y. Jan. 3, 2011). Instead, "a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution." Iqbal, 556 U.S. at 676. The Supreme Court further explained that the facts necessary to make this showing "will vary with the constitutional provision at issue." Id.

Initially, in the wake of Iqbal, the precedent of this District was somewhat divided on the extent to which that decision abrogated Colon. While some courts took the position that "[o]nly the first and part of the third Colon categories pass Iqbal's muster," Bellamy v. Mount Vernon Hosp., No. 07cv1801 (SAS), 2009 U.S. Dist. LEXIS 54141, at *27 (S.D.N.Y June 26, 2009), aff'd, 2010 U.S. App. LEXIS 14981 (2d Cir. July 21, 2010) (summary order), others found that, "even after the U.S. Supreme Court's decision in Iqbal, [Colon's] categories supporting personal liability of supervisors still apply as long as they are consistent with the requirements applicable to the particular constitutional provision alleged to have been violated," JCG v. Ercole, No. 11cv6844 (CM) (JLC), 2014 WL 1630815, at *20 (S.D.N.Y. Apr. 24, 2014) (citing Hernandez v. Goord, No. 01cv9585 (SHS), 2013 WL 2355448, at *7 (S.D.N.Y. 2013)), report and recommendation adopted by 2014 WL 2769120 (S.D.N.Y. June 18, 2014); Qasem v. Toro, 737 F. Supp. 2d 147, 152 (S.D.N.Y. 2010)).

Recently, though, in Turkmen v. Hasty, the Second Circuit resolved this conflict by holding that, regardless of the description applied to a particular theory or type of conduct, supervisory liability is permissible where, and only where, the defendant's conduct itself "reflects the elements of the underlying constitutional tort." 789 F.3d 218, 250 (2d Cir. 2015); see also Williams v. City of New York, No. 14cv5123 (NRB), 2015 WL 4461716, at *7 (S.D.N.Y. July 21, 2015) (finding that Turkmen "explain[s] the consistency of Colon with Iqbal"). The Second Circuit went on to explain that a constitutional claim governed by the deliberate-indifference standard, as asserted against a supervisory defendant, "therefore survives so long as [the plaintiff] plausibly plead[s] that the conditions were sufficiently serious, and [that the defendant] 'kn[e]w of, and disregard[ed], an excessive risk to inmate health or safety.'" Turkmen, 789 F.3d at 250 (quoting Walker v. Schult, 717 F.3d 119, 125 (2d Cir. 2013)). In other words, regardless of which of the five Colon categories is invoked to establish the supervisory defendant's personal involvement on a failure-to-protect claim, the claim can survive a motion to dismiss only if the plaintiff plausibly alleges facts showing that the supervisor acted with deliberate indifference. See id.; see also Farmer, 511 U.S. at 834, 847.

D. Qualified Immunity

Qualified immunity "protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Pearson v. Callahan, 555 U.S. 223, 231 (2009) (internal quotation marks omitted; citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). "In determining whether a right was clearly established at the time defendants acted, [courts] examine whether the right was defined with reasonable specificity; whether the decisional law of the Supreme Court and the applicable circuit court supports its existence; and whether, under preexisting law, a defendant official would have reasonably understood that his acts were unlawful." Rodriguez v. Phillips, 66 F.3d 470, 476 (2d Cir. 1995) (citation omitted). Even where the official violates a clearly established right, the defense of qualified immunity is nevertheless available if "it was 'objectively reasonable' for [the official] to believe that his actions were lawful at the time of the challenged act." Cerrone v. Brown, 246 F.3d 194, 199 (2d Cir. 2001) (quoting Lennon v. Miller, 66 F.3d 416, 420 (2d Cir. 1995) (internal quotations omitted)).

A qualified immunity defense, though, is "typically addressed at the summary judgment stage," because it "usually depends on the facts of the case, . . . making dismissal at the pleading stage inappropriate." See Woods v. Goord, No. 01cv3255 (SAS), 2002 WL 731691, at *10 (S.D.N.Y. Apr. 23, 2002) (citing King v. Simpson, 189 F.3d 284, 289 (2d Cir. 1999)); see also Taylor v. Vermont Dept. of Educ., 313 F.3d 768 (2d Cir. 2002) (holding that ruling on qualified immunity would be premature because the issue turned on factual questions that could not be resolved at the pleading stage). Accordingly, a motion to dismiss on qualified-immunity grounds will only be granted "if the complaint fails to allege the violation of a clearly established right." Woods, 2002 WL 731691, at *10 (quoting Hardy v. Jefferson Community Coll., 260 F.3d 671, 677 (6th Cir. 2001)); see also Burton v. Lynch, 664 F. Supp. 2d 349, 368 (S.D.N.Y. 2009) ("[A] defendant will be found to be shielded by qualified immunity on a motion to dismiss if the complaint fails to allege the violation of a clearly established constitutional right." (internal quotation marks and citation omitted)); McKenna v. Wright, 386 F.3d 432, 436 (2d Cir. 2004) ("[On a motion to dismiss], the plaintiff is entitled to all reasonable inferences from the facts alleged, not only those that support his claim, but also those that defeat the immunity defense.").

II. THE PENDING MOTIONS TO DISMISS

A. Documents Considered on the Motions Before the Court

Attached to Plaintiff's attorney declarations are copies of three documents: (1) Plaintiff's October 26, 2011 letter to Lee, in which Plaintiff requested a housing transfer (12/7/15 Stanley Decl., Ex. A); (2) a transcript of an oral argument held in Lewis v. Fischer, No. 08-CV-3027 (JG) (LB) (E.D.N.Y.) (id., Ex. B); and (3) a 2006 report on Green Haven issued by the Correctional Association of New York (9/30/15 Stanley Decl., Ex. B). Plaintiff seeks to introduce all three of these documents for the Court's consideration, despite the fact that, as explained above, courts are generally constrained to look only to the pleadings when considering motions to dismiss.

With respect to the October 26, 2011 letter and the Lewis transcript, this Court finds that it is permissible to consider these documents on this motion to dismiss. As Plaintiff refers to and quotes the October 26, 2011 letter in the Amended Complaint, the letter may be deemed incorporated by reference. Thus, the Court may look at the entirety of the letter in connection with this motion, despite the fact that it was not attached to the Amended Complaint and only a portion of it was directly quoted in that pleading. See James v. Correct Care Sols., No. 13cv0019 (NSR), 2013 WL 5730176, at *3 (S.D.N.Y. Oct. 21, 2013) ("One way a document may be deemed incorporated by reference is where the complaint 'refers to' the document."); EQT Infrastructure Ltd. v. Smith, 861 F. Supp. 2d 220, 224 n.2 (S.D.N.Y. 2012) ("The Complaint refers to and quotes from the Letter of Intent, thus incorporating it. Accordingly, I may consider the [Letter of Intent] on this Motion to Dismiss even though it was not attached to the Complaint.") Moreover, it is permissible for a district court to take judicial notice of court documents from other proceedings, such as the transcript submitted by Plaintiff. See Grimes v. Fremont Gen. Corp., 933 F. Supp. 2d 584, 600 n.7 (S.D.N.Y. 2013) ("[O]n a motion to dismiss, a district court may take judicial notice of court documents from other proceedings.").

On the other hand, the 2006 report from the Correctional Association of New York must be excluded from this Court's consideration. Plaintiff did not incorporate the report or rely upon it in the drafting of his Amended Complaint, and the findings of a private organization are not a matter of public record such that this Court may take judicial notice of the report's contents. See Ames v. Stevens, No. 9:12-CV-1487 (MAD) (RFT), 2015 WL 5513021, *7 (N.D.N.Y. Sept. 17, 2015) (holding that the Correctional Association of New York is a private entity, and that its reports are therefore not public records).

For these reasons, this Court will consider the October 26, 2011 letter and the oral argument transcript, but not the Correctional Association of New York report, in connection with the Moving Defendants' motions to dismiss.

B. The Motion by Hann

In the Amended Complaint, Plaintiff essentially alleges that, when Carlson assaulted him in a hallway on November 1, 2011, Hann was able to see that assault as it occurred, but failed to intervene to stop it. (Am. Compl. ¶¶ 182-94, 336.) Hann argues that the Amended Complaint fails to allege facts sufficient to suggest that he was actually aware that Plaintiff's constitutional rights were being violated at the time of the incident, and that Plaintiff has thus failed to state a failure-to-intervene claim against him. (See Def. Hann Mem. at 7-12; Def. Hann Reply at 1-9.) Moreover, Hann argues that, even if his actions (or lack of action) could be found to have violated the Eighth Amendment, he is nonetheless entitled to qualified immunity on the basis that it was objectively reasonable for him to believe that he was not violating clearly established law. (Def. Hann Mem. at 13-14; Def. Hann Reply at 9-10.) For the reasons set forth below, I recommend that the Court deny Hann's motion to dismiss in its entirety.

1. Sufficiency of Failure-To-Intervene Claim

In his moving brief, Hann characterizes Plaintiff's claim against him as a failure-to-protect claim governed by the standard set forth in Farmer. (Hann. Mem. at 7-8 (arguing that Hann had no advance knowledge of any threat to Plaintiff's safety); see also Farmer, 511 U.S. at 834.) Yet in the Amended Complaint, as liberally construed, Plaintiff alleges that Hann observed Carlson's actions and directly participated in the constitutional violation by failing to intervene, not that Defendant Hann should be held liable in his capacity as a supervisor for his deliberate indifference to the likelihood that Carlson would assault Plaintiff at some point in the future. (Am. Compl. ¶¶ 188-95; see also Pl. Mem. Hann at 13 n.4 (clarifying that Plaintiff's only claim against Hann is for his failure to intervene in the assault allegedly perpetrated by Carlson).)

Where, as here, a plaintiff alleges that an officer failed to intercede in a presently-occurring assault perpetrated by another officer, the claim is properly analyzed under the standard discussed above for failure to intervene in a use of excessive force, rather than under the Farmer standard for failure to protect a prisoner from a dangerous condition of confinement. Compare Kee v. Hasty, No. 01cv2123 (KMW) (DF), 2004 WL 807071, at *26 (S.D.N.Y. Apr. 14, 2004) (noting that a correction officer has an affirmative duty to intervene to prevent fellow officer from using excessive force against an inmate and analyzing claim under failure-to-intervene standard), with Piper v. City of Elmira, 12 F. Supp. 3d 577, 596 (W.D.N.Y. 2014) ("A plaintiff may establish an officer's personal involvement through facts suggesting that the officer was either personally involved in the use of force or was present during the use of force and failed to intervene. . . . [T]he 'plaintiff need not establish who, among a group of officers, directly participated in the attack and who failed to intervene.'" (quoting Jeffreys v. Rossi, 275 F. Supp. 2d 463, 474 (S.D.N.Y. 2003), aff'd, 426 F.3d 549 (2d Cir. 2005))), with Desulma v. City of New York, No. 98cv2078 (RMB) (RLE), 2001 WL 798002, at *6 (S.D.N.Y. July 6, 2001) (noting that a failure-to-protect claim is treated as a challenge to the prisoner's conditions of confinement). Thus, as long as Plaintiff has plausibly alleged facts sufficient to show that Hann (1) had a realistic opportunity to intervene and prevent the harm, (2) knew that Plaintiff's constitutional rights were being violated, and (3) did not take reasonable steps to intervene, then Plaintiff must be found to have stated a viable claim against Hann for the injuries caused by Carlson's unconstitutional use of force.¹⁸

18 Hann argues that, "[t]o the extent that the non-precedential decision cited in the Opposition Brief, Porter v. Goord, 467 F. App'x 21, 23 (2d Cir. 2012) (summary order), which defined the Eighth Amendment test [for failure to intervene] as whether the defendant 'observes or has reason to know . . . that excessive force is being used" (emphasis added), could be interpreted as creating an objective standard, it would not be a correct statement of the law." (Def. Hann Reply at 2.) The Court need not reach this question, as, for the reasons discussed herein, Plaintiff has, in any event, pleaded facts sufficient to show that Hann had actual, contemporary knowledge of the assault to which Plaintiff claims he was subjected by another officer, and failed to take action to assist Plaintiff.

As an initial matter, Plaintiff makes the requisite showing of an underlying constitutional violation by alleging that defendant Carlson, without any penological justification, balled up Plaintiff's shirt collar until it choked him, causing injury to Plaintiff's neck, and, after "forcefully" pulling on Plaintiff's pants until they became "extremely taut," twice thrust his hand upward into Plaintiff's crotch, causing injury to Plaintiff's testicles. (Am. Compl. ¶¶ 191, 200; see also Crawford v. Cuomo, 796 F.3d 252, 257-58 (2d Cir. 2015) (holding that sexual contact that is incidental to a legitimate pat frisk is permissible, while such contact undertaken to gratify the officer or humiliate the inmate violates the Eighth Amendment); Hogan, 738 F.3d at 515 ("[W]hen prison officials maliciously and sadistically use force to cause harm, contemporary standards of decency always are violated . . . whether or not significant injury is evident."); Romaine v. Rawson, 140 F. Supp. 2d 204, 212 (N.D.N.Y. 2001) ("[E]ven one slap against a prisoner is objectively unreasonable and 'repugnant to the conscience of mankind' when . . . the prisoner presents no threat to prison guards or others, poses no security risk, and does not otherwise pose a danger to himself.").)

Plaintiff asserts that, despite the fact that Hann was in a position to witness Carlson's excessive use of force (see Am. Compl. ¶ 192 (alleging that, "[d]uring [this] abusive [p]at-[f]risk procedure, [Plaintiff] . . . observed Def. Hann looking in the direction of [Plaintiff] and Def. Carlson")), Hann did not intercede or otherwise stop this constitutional violation (id. ¶ 193). Liberally construed "to raise the strongest arguments that [it] suggest[s]," Triestman, at 470 F.3d at 474, Plaintiff's allegation that he was able to observe Hann looking at him supports the inference that Hann was able to see the incident from where he stood. Further, as Plaintiff alleges that he "fully complied" with Carlson's orders and had his hands on the wall at the time that Carlson choked and struck him (Am. Compl. ¶ 189), it is entirely plausible that an officer observing the incident would have understood that Carlson's use of force violated the Eighth Amendment. The argument that Hann offers to refute this inference - that Plaintiff's allegations do not suggest that Hann was able to distinguish an unconstitutional assault from a routine pat-frisk from his vantage point at an unspecified distance from the assault (Def. Hann Mem. at 13-14; Def. Hann Reply at 9-10) - raises a factual question that cannot be resolved on this motion to dismiss (see 12/7/15 Stanley Decl., Ex. B (court finding, in Lewis, that the question of whether a witness was in a position to view alleged illegal conduct during pat frisk was an issue of fact)).

Hann also argues that, as described in the Amended Complaint, the incident between Carlson and Plaintiff "occurred too quickly to give Defendant Hann an opportunity to intervene, even if he recognized what was happening." (Def. Hann Mem. at 11.) While it is true that an officer cannot be held liable for his or her failure to intervene in a sudden assault that lasts only a matter of seconds, see Toliver, 2013 WL 6476791, at *3-4; Tafari v. McCarthy, 714 F. Supp. 2d 317, 342 (N.D.N.Y. 2010) ("The liquid throwing incident began and ended within a matter of seconds, an increment of time too 'sudden and brief' to give Defendants a 'realistic opportunity' to respond and intervene on behalf of the Plaintiff." (quoting Cusamano v. Sobek, 604 F. Supp. 2d 416, 429 n.9 (N.D.N.Y. 2009)), the question of whether an officer had sufficient time to intervene and prevent an assault is also generally an issue of fact, unless a reasonable jury could reach only one conclusion, see Allen, 480 F. Supp. 2d at 694 (quoting Anderson, 17 F.3d at 557); see also O'Neill v. Krzeminski, 839 F.2d 9, 11-12 (2d Cir. 1988) (finding that, in context of claim arising under the Fourth Amendment, officer had no opportunity, as a matter of law, to prevent plaintiff from being struck with three blows in rapid succession, but that a jury could conclude that the officer had the opportunity to intercede while plaintiff was subsequently dragged across the floor).

Here, although the exact duration of the allegedly unlawful conduct is unclear, Plaintiff alleges that Carlson engaged in a series of violent acts: first balling up Plaintiff's shirt collar in order to choke him, then "forcefully yank[ing]" Plaintiff's pants upwards by the waistband, and, finally, thrusting his hand upward from Plaintiff's ankle to his crotch, twice, in order to strike Plaintiff's testicles. (Am. Compl. ¶ 191.) These allegations plausibly suggest that the entire incident was of long enough duration that Hann could have interceded at some point. Moreover, Hann's proximity to the alleged assault, and his status as a sergeant (and thus a supervisory officer), further support the inference that he could have curtailed Carlson's use of excessive force. See McCoy v. Goord, 255 F. Supp. 2d 233, 262 (S.D.N.Y. 2003) (noting that correction sergeant's proximity to assault and supervisory position gave him the opportunity to prevent use of force).

I therefore recommend that Hann's motion to dismiss be denied to the extent that it seeks dismissal of the claim against him, under Rule 12(b)(6), for failure to state a claim upon which relief may be granted.

2. Qualified Immunity

Hann further argues that no clearly established law holds that "mere presence somewhere in the vicinity of an assault" triggers an officer's duty to intervene, and that, because the line between a lawful pat frisk and an unconstitutional assault is "indistinct," it was objectively reasonable for him to believe that he was not required to prevent Carlson's conduct. (Hann. Mem. at 13-14.) This argument misstates the legal and factual context of Plaintiff's claim, however, and it does not establish that Hann is entitled to qualified immunity at the motion-to-dismiss stage.

First, the law at issue - Plaintiff's right to be free from excessive force, and Defendant Hann's corresponding duty to intervene and prevent the use of excessive force - was clearly established at the time of the alleged assault. See Hudson, 503 U.S. at 9; Anderson, 17 F.3d at 557; see also Allen, 480 F. Supp. 2d at 710 ("A prisoner's right to freedom from excessive force by prison officials is a clearly established constitutional right."). Second, as the Court understands Plaintiff's position, he is not suggesting that it was Hann's mere presence in the vicinity that triggered this duty, but rather Hann's observation of the assault and knowledge that Carlson was violating Plaintiff's rights. See Jean-Laurent, 540 F. Supp. 2d at 512. While, notwithstanding the clearly established law regarding the duty to intervene, discovery may show that Hann's actions were objectively reasonable because he was unable to tell whether Carlson's conduct had crossed the line between lawful pat-frisk and excessive force, this Court cannot now make that determination.

As the facts in Plaintiff's Amended Complaint, accepted as true, do not establish as a matter of law that Hann is entitled to qualified immunity, I recommend that the Court deny Hann's motion to dismiss Plaintiff's claim against him on this ground. See McKenna, 386 F.3d at 436 (noting that defendant is entitled to qualified immunity at the pleading stage only if it is beyond doubt that the plaintiff can prove no set of facts that would defeat the defense).

C. The Motion by Snedeker and D'Angelico

Advancing a similar theory to that which underlies his claim against Hann, Plaintiff argues that defendants Snedeker and D'Angelico - who, on March 23, 2012, allegedly stood outside the door to the room where Plaintiff was being assaulted by Mrzyglod - may be held liable under Section 1983 for their failure to intervene in Mrzyglod's assault. (Pl. Mem. at 19-22; Am. Compl. ¶¶ 255-78, 328.) Challenging the sufficiency of Plaintiff's allegations against them in this regard, Snedeker and D'Angelico move to dismiss the claims against them on the ground that Plaintiff has not plausibly pleaded that they were aware of and had an opportunity to prevent the alleged assault. (See Def. Mem. at 20-21; Def. Reply at 9-10.) Snedeker and D'Angelico further argue that, even if Plaintiff states a claim against them for their failure to intervene in the claimed use of excessive force by Mrzyglod, they are entitled to qualified immunity because it was objectively reasonable for them to believe that their conduct did not violate Plaintiff's clearly established rights. (Def. Mem. at 24-25.) For the reasons set forth below, I recommend that the motion by Snedeker and D'Angelico to dismiss Plaintiff's claims against them be denied.

1. Sufficiency of Failure-To-Intervene Claims

Snedeker and D'Angelico argue that Plaintiff's allegation that they stood outside the room where Mrzyglod assaulted Plaintiff does not suggest that they could see or hear what was happening inside the room, such that they could have had knowledge of the assault or an opportunity to prevent it. (Def. Mem. at 20-21; Def. Reply at 9-10.) This argument is unpersuasive, as, liberally construed, the Amended Complaint sufficiently alleges that, regardless of whether they could see or hear what was happening inside the room, Snedeker and D'Angelico were nonetheless aware of what was occurring and was either complicit in the assault or did nothing to prevent it.

To begin with, Plaintiff plainly alleges an underlying Eighth Amendment violation by asserting that Mrzyglod subjected him to more than de minimis force, in retaliation for his refusal to withdraw grievances against Green Haven officers. (Am. Compl. 267-77; see also Davidson v. Flynn, 32 F.3d 27, 30 (2d Cir. 1994) (finding subjective component of excessive force standard satisfied by allegation that force was applied in retaliation for the plaintiff's litigiousness).) With respect to the conduct of Snedeker and D'Angelico, Plaintiff alleges that, despite the fact that neither officer was assigned to E-Block, where the alleged assault took place, both of these defendants remained posted "directly outside" the door of the room for the duration of the assault. (Am. Compl. ¶¶ 264, 266.) Indeed, Plaintiff specifically alleges that Snedeker and D'Angelico were present at the site of the assault in order to serve as "look-out[s]" or "back-up" for Mrzyglod. (Id. ¶ 287 n.40.) Taken as a whole and liberally construed, the allegations of the Amended Complaint are sufficient to support these characterizations of these defendants' role in the incident.

Even apart from Plaintiff's description as to where Snedeker and D'Angelico were stationed during the alleged assault, Plaintiff alleges that, for some time prior to when Mrzyglod ordered him into the room, Mrzyglod was "in the company" of these two officers. (Id. ¶¶ 261, 264.) Plaintiff also alleges that Mrzyglod had previously placed in the room several articles of Plaintiff's personal property, taken from his cell, including copies of grievances he had filed (id. ¶¶ 267, 268), giving rise to a plausible inference that Snedeker and D'Angelico, who had been observed by Plaintiff in Mryzglod's company, were aware that Mrzyglod planned to confront Plaintiff about his past grievances and attempt to deter him from engaging in protected speech. Moreover, Plaintiff alleges that, after punching him in the face several times, yanking him from his chair by the shirt, and pinning him down on a bed frame, Mrzyglod left the room, passing through the door at which Snedeker and D'Angelico were posted, then reentered and continued to assault Plaintiff. (Id. ¶¶ 272-75.) Further, Plaintiff alleges that, when he finally exited the room after the alleged assault, he observed Snedeker and D'Angelico "standing immediately outside [the room], smiling." (Id. ¶ 278.) Crediting Plaintiff's pleading with the liberal construction it is due, Snedeker and D'Angelico's suspicious presence in a housing block other than the one to which they were assigned, their accompaniment of Mryzglod prior to the incident, their close and continued proximity to the room in which the assault allegedly occurred, the fact that they remained at the same positions as Mrzglod exited and re-entered the room, and their smiles at the time of Plaintiff's eventual exit, all support the inference that they knew and approved of Mrzyglod's assault on Plaintiff. (Id. ¶¶ 259-78; see also Stoudemire v. Mich. Dep't of Corr., 705 F.3d 560, 573 (6th Cir. 2013) (noting that a correction officer's smile, in context, may suggest personal animus towards a particular inmate).)

For these reasons, I recommend that the Court deny Snedeker and D'Angelico's motion to dismiss the claims against them, under Rule 12(b)(6), for failure to state a claim upon which relief may be granted.

2. Qualified Immunity

Like Hann, defendants Snedeker and D'Angelico argue on their motion that they are entitled to qualified immunity because it is "not clearly established that mere presence somewhere in the vicinity of an assault can support a [failure-to-intervene] claim." (Def. Mem. at 25.) Plaintiff does not contend, however, that Snedeker and D'Angelico should be held liable for his injuries because they were in the vicinity of the assault; rather, he claims that these Defendants were directly involved in a violation of his Eighth Amendment rights because they were aware that Mrzyglod was subjecting him to excessive force and failed to intervene. As noted above, it was clearly established at the time of the alleged assault that a correction officer has an affirmative duty to intervene if he knows that a fellow officer is subjecting an inmate to unlawful force. See Anderson, 17 F.3d at 557. Accordingly, I recommend that, to the extent Snedeker and D'Angelico have sought dismissal of Plaintiff's claims against them on the ground of qualified immunity, their motion to dismiss be denied.

D. The Motion by Lee

Plaintiff asserts Section 1983 claims against Superintendent Lee for his failure to protect Plaintiff from the November 1, 2011 and March 23, 2012 assaults allegedly perpetrated by Carlson and Mrzyglod. (Am. Compl. ¶ 322.) In his motion to dismiss, defendant Lee does not contest that the risk that Plaintiff would be assaulted by Green Haven staff was objectively serious, an element of Plaintiff's claim that is clearly satisfied, given that Plaintiff alleges that he was actually subjected to excessive force during each assault. See Locicero v. O'Connell, 419 F. Supp. 2d 521, 527 (S.D.N.Y. 2006) (holding that risk of harm was objectively serious where plaintiff was actually subjected to excessive force by correction officer); see also Stewart v. Fischer, No. 11cv2184 (HB), 2013 WL 5637715, at *4 (S.D.N.Y. Oct. 15, 2013) (holding that fact that plaintiff was attacked and stabbed by another inmate conclusively established that he was incarcerated under conditions placing him at a substantial risk of serious harm). Instead, Lee's arguments focus on the subjective prong of the deliberate-indifference test, as he contends that the Amended Complaint fails to allege facts showing that he was aware of and disregarded a substantial risk to Plaintiff's safety.¹⁹ (See Def. Mem. at 23-24; Def. Reply at 5-9.)

19 In his moving brief, Lee focused his arguments on the propriety of his investigation and denial of Plaintiff's grievances (Def. Mem. at 21-23), although he also stated that the Amended Complaint offered "no suggestion of . . . [Lee's] deliberate indifference to [Plaintiff's] safety, (id. at 24). In opposition to Lee's motion, however, Plaintiff explained that he was not asserting a disciplinary due-process claim against Lee, but only failure-to-protect claims arising under the Eighth Amendment. (Pl. Mem. at 11.) On reply, Lee thus shifted the focus of his primary attack on Plaintiff's claims, emphasizing Plaintiff's purported failure to plead facts sufficient to show that Lee was deliberately indifferent to the risk that Plaintiff would be subjected to retaliatory assaults at the hands of Green Haven staff. (Def. Reply at 2-9.)

For his part, Plaintiff argues that he has adequately pleaded Lee's personal involvement, by alleging that Lee: (1) failed to remedy an ongoing pattern of unconstitutional assaults against Plaintiff, despite being informed of that wrong through Plaintiff's grievances and complaints (Pl. Mem. at 13-17); (2) acquiesced in a "culture of abuse" at Green Haven (id. at 17-18); and (3) failed to provide adequate training and supervision to his subordinates (id. at 18-19). See Colon, 58 F.3d at 873. As discussed above, however, even if Lee's conduct fits into one or more of these Colon categories, Plaintiff may be found to have stated a viable failure-to-protect claim against Lee only if that conduct also satisfies the deliberate-indifference standard. (See Discussion, supra, at Section I(C).) For the reasons set forth below, I recommend that Lee's motion to dismiss the claims against him be denied to the extent that the motion seeks dismissal of the claims arising from the November 1, 2011 assault, and granted to the extent that it seeks dismissal of the claims arising from the March 23, 2012 assault.

1. Failure-To-Protect Claim Arising From November 1 , 2011 Assault

With respect to Lee's alleged failure to prevent the claimed November 1, 2011 assault by Carlson, Lee argues that the allegations in the Amended Complaint do not suggest that he knew of and disregarded a serious risk of harm to Plaintiff. Specifically, Lee contends that, while Plaintiff wrote to him on October 26, 2011, that letter did not identify a specific threat made by A-Block officers or suggest that Plaintiff had ever had problems with Carlson, and that Lee responded appropriately when he denied Plaintiff's request for a transfer. (Def. Reply at 6.) Lee further asserts that, prior to the November 1, 2011 incident, Plaintiff had not reported any physical assault for over a year. (Id.)

"Courts have found that a prisoner validly states an Eighth Amendment claim based on a failure to protect when he alleges that he informed corrections officers about a specific fear of assault and is then assaulted." Davis v. Torres, No. 10cv2236 (RJS) (HBP), 2012 WL 3070092, at *5 (S.D.N.Y. May 2, 2012), report and recommendation adopted by 2012 WL 3070083 (S.D.N.Y. July 27, 2012); see also Beckles v. Bennett, No. 05cv2000 (JSR) (DF), 2008 WL 821827, at *17 (S.D.N.Y. Mar. 26, 2008) (denying summary judgment where plaintiff presented evidence that he informed sergeant of correction officers' threatening behavior and was later assaulted by those officers). On the other hand, an inmate's communications about "generalized safety concerns" or "vague concerns of future assault by unknown individuals" are insufficient to provide knowledge that the inmate is subject to a substantial risk of serious harm. Ross v. City of New York, No. 12cv8545 (LGS), 2014 WL 3844783, at *8 (S.D.N.Y. 2014) (citing Rivera v. New York, 96cv7697 (RWS), 1999 WL 13240, at *9 (S.D.N.Y. Jan. 12, 1999)), rev'd on other grounds, No. 14-3327-cv (2d Cir. July 20, 2015) (summary order).

Here, Plaintiff alleges that, on October 26, 2011, he notified Lee of his fear that he would be imminently assaulted by A-Block staff; that Lee took no action to transfer him from A-Block or otherwise protect him from violence; and that he was actually subjected to such an assault just four days later. (Am. Compl. ¶¶ 171-82.) In addition to noting Plaintiff's more general concerns about A-Block staff's three recent assaults against inmates or resentment at the arrest of a fellow Green Haven officer, Plaintiff's letter also informed Lee that that an officer who had previously assaulted Plaintiff was assigned to A-Block on Tour-Two, and that two other Tour-Two A-Block officers had already subjected Plaintiff to verbal harassment in the six days since his assignment to A-Block. (9/30/15 Stanley Decl., Ex. A.) Thus, while Plaintiff did not identify by name the officer who he believed would assault him, he did identify the threat as emanating from the officers on a particular tour, rather than the entire group of A-Block officers. See Hayes v. New York City Dept. of Corr., 84 F.3d 614, 621 (2d Cir. 1996) ("[T]he issue is not whether [the plaintiff] identified his enemies by name to prison officials, but whether they were aware of a substantial risk of harm to [the plaintiff]. Although a prisoner's identification of his enemies is certainly relevant to the question of knowledge, it is not, necessarily, outcome determinative.").

Additionally, while Plaintiff's previous complaints regarding retaliatory assaults by Green Haven staff would not have been sufficient, standing alone, to put Lee on notice that Plaintiff was likely to be assaulted again in the near future, this history of complaints, when coupled with Plaintiff's communication of his immediate fear of assault, could plausibly have apprised Lee of a serious risk of harm to Plaintiff. Viewed as a whole, Plaintiff's allegations belie Lee's argument that Plaintiff's October 26, 2011 communication could not have placed Lee on notice that Plaintiff was at risk of serious injury, and are sufficient, at the pleading stage, to state a claim based on Lee's failure to protect Plaintiff.

I therefore recommend that Lee's motion to dismiss the claim against him arising from the November 1, 2011 assault be denied.

2. Failure-To-Protect Claim Arising From March 23 , 2012 Assault

Plaintiff does not identify any specific communication to Lee preceding the alleged March 23, 2012 assault by Mrzyglod. Instead, Plaintiff argues that Lee may be held liable for the injuries Plaintiff suffered in that assault because Lee: (1) failed to remedy an ongoing pattern of retaliatory conduct against Plaintiff, despite learning of it through Plaintiff's submission of grievances; (2) was aware of a culture of inmate abuse at Green Haven that posed a risk of harm to Plaintiff, but disregarded that risk; or (3) exhibited deliberate indifference by failing to train and supervise the subordinates who directly perpetrated the violation. (Pl. Mem. at 13-19.) For the reasons discussed below, this Court finds that Plaintiff's allegations, as currently pleaded, are insufficient to state a deliberate-indifference claim against Lee for the March 23, 2012 assault, under any of these three categories of conduct.

a. Knowledge of Pattern of Retaliatory Assaults Against Plaintiff

Plaintiff argues that Lee personally reviewed Plaintiff's grievances and letters regarding several instances of the retaliatory use of force against him, but failed to take any action to protect Plaintiff, thus perpetuating an ongoing risk of harm to his safety. (Pl. Mem. at 13-14.) In reply, Lee contends that, at the time of the alleged March 23, 2012 assault, Plaintiff had not been assaulted in over four months, and had reported no problems with staff since his transfer to E-Block, where he had previously indicated that he had suffered no abuse. (Def. Reply at 7.)

This Court finds that, while the history of past assaults against Plaintiff does strengthen Plaintiff's contention that the October 26, 2011 letter put Lee on notice of a risk of harm that was imminent at that time, it does not suggest the existence of an ongoing pattern of physical violence that continued to reach constitutional dimensions until March 23, 2012. Plaintiff's allegations simply do not show that he was subjected to a pervasive, unbroken pattern of retaliation. Rather, the Amended Complaint alleges that, over the course of approximately 18 months, there were three discrete periods during which Plaintiff experienced multiple alleged constitutional violations, with gaps of several months between these periods. Specifically, Plaintiff's allegations indicate the following timeline:

(1) In the four months from June to September, 2010, Plaintiff experienced an escalating pattern of retaliation, resulting in three physical assaults. (Am. Compl. ¶¶ 2-169.)

(2) After that time, there was a period of over a year (from September 2010 to October 2011) when Plaintiff was not subjected to any retaliatory conduct; for much of this period, Plaintiff was housed in E-Block. (See 9/30/15 Stanley Decl., Ex. A, at 1-2.)

(3) After being transferred to A-Block in October 2011, there was a period lasting four or five days, in late October and early November 2011, during which Plaintiff was verbally harassed by C.O. Chase and two unidentified A-Block officers (id. ¶ 222-52; 9/30/15 Stanley Decl., Ex. A), and was assaulted by C.O. Carlson (Am. Compl. ¶¶ 170-207).

(4) For the four-month period from November 2, 2011 (when Plaintiff was transferred back to E-Block) until March 23, 2012, Plaintiff does not allege that he suffered physical violence at the hands of Green Haven staff. (See generally Am. Compl.)

(5) Finally, on March 23, 2012, Plaintiff was assaulted by C.O. Mrzyglod (in the company of A-Block officers), and then threatened by Sergeant Cocuzza. (Am. Compl. ¶¶ 255-316.)

Given the extensive gaps between each alleged outbreak of violence, along with the lack of any allegations indicating that Plaintiff was subjected to retaliation or excessive force while housed in E-Block (where he was housed at the time of the March 23, 2012 assault), Plaintiff's allegations are insufficient to permit a reasonable inference that Lee was deliberately indifferent to the risk that Plaintiff would be subjected to retaliatory force by Green Haven staff on or about March 23, 2012. See Coronado, 2000 WL 1372834, *5 (holding that significant amount of time since a prior attack lessens the imminence of the risk that a similar attack will occur in the future).

b. Creation of or Acquiescence in Culture of Abuse

Even where a plaintiff does not allege any facts suggesting that prison officials were aware of a particular risk to his or her safety, the "plaintiff may also state a claim for deliberate indifference based on a failure to protect him against a general risk of harm to all inmates at the facility." Parris v. New York State Dep't Corr. Servs., 947 F. Supp. 2d 354, 363 (S.D.N.Y. 2013). To plead a claim under this theory, a plaintiff must allege that the defendant knew of a history of attacks similar to that suffered by the plaintiff, and that the measures they should have taken to prevent the reoccurrence of such attacks would have prevented the harm to the plaintiff. Id. (citing Coronado v. Goord, No. 99cv1674 (RWS), 2000 WL 1372834, *6 (S.D.N.Y. Sept. 25, 2000)); see also Correa v. Hastings, No. 13cv5862 (PAC) (SN), 2015 WL 6681186, at *6 (S.D.N.Y. Sept. 16, 2015), report and recommendation adopted by 2015 WL 6681186 (S.D.N.Y. Nov. 2, 2015); Henry v. Cnty. of Nassau, No. 13-CV-7427 (SJF) (ARL), 2015 WL 2337393, at *5 (E.D.N.Y. May 13, 2015). Generally, a claim based on a generalized risk of assault requires facts showing a "'longstanding, pervasive, well-documented' history of similar attacks, coupled with 'circumstances suggest[ing] that the defendant-official being sued had been exposed to [this] information.'" Hicks v. Woods, No. 9:09cv0051 (GLS) (DRH), 2011 WL 5974973, at *3 (N.D.N.Y. Nov. 28, 2011) (quoting Farmer, 511 U.S. at 842).

The allegations in Plaintiff's Amended Complaint do not suggest that any purported "culture of abuse" at Green Haven was so longstanding and pervasive that Superintendent Lee would have been aware that any inmate at that facility who filed a grievance faced a generalized risk of retaliatory assault at the hands of Green Haven staff. In this regard, Plaintiff merely alleges that: (1) Mrzyglod subjected another prisoner to excessive force on March 25, 2004, nearly eight years before his alleged assault of Plaintiff (Am. Compl. ¶ 277 n.39); (2) Smith and Corbin subjected another prisoner to excessive force on October 3, 2013, nearly two years after they allegedly assaulted Plaintiff (id. ¶ 150 n. 28); and (3) three prisoners were assaulted by A-Block staff shortly before Plaintiff was transferred to that housing block in October 2011 (9/30/15 Stanley Decl., Ex. A). The existence of these isolated incidents, one of which occurred after the events at issue in Plaintiff's Amended Complaint, do not plausibly suggest that Lee was aware, on March 23, 2012, that Plaintiff was under a general risk due to a culture of abuse against inmates who filed grievances or formal complaints.

This Court notes that, in arguing that retaliatory physical assault by Green Haven staff was a pervasive problem, Plaintiff also seeks to rely on the findings of the 2006 Correctional Association of New York report that he submits with his opposition papers. (Pl. Mem. at 17-18.) As discussed above, however, it would be improper for the Court to consider such extrinsic evidence in connection with Lee's motion to dismiss. (See Discussion, supra, at Section II(A).) Unless and until Plaintiff is able to plead allegations sufficient to support a claim that Lee was aware of a general culture of retaliatory violence (see Discussion, infra, at Section III (regarding whether Plaintiff should be granted leave to replead this claim)), Plaintiff cannot maintain a deliberate-indifference claim against Lee on such ground.

c. Failure To Train or Supervise

Lee additionally points out that the allegations in the Amended Complaint do not suggest any specific ways in which he was grossly negligent in failing to train or supervise his employees, and that Plaintiff's contention that the Amended Complaint supports such an inference is "based on one phrase of boilerplate." (Def. Reply at 9.) This Court agrees that Plaintiff's allegation that Lee "failed to prevent or otherwise cease the pattern or practice of retaliation upon [Plaintiff] . . . and failed to ensure said [s]ubordinate [defendants] were properly trained and supervised" (Am. Compl. ¶ 322) (the single boilerplate phrase referred to by Lee), is insufficient to plead a deliberate-indifference claim under a failure-to-train or failure-to-supervise theory. This conclusory statement is not supported by any factual allegation in the Amended Complaint. Plaintiff does not, for example, describe the nature of the training or supervision that Lee provided to the officers who allegedly violated his rights, explain why that training or supervision was deficient, or provide any facts directly connecting the actions of Lee's subordinates to a failure of training or supervision. See, e.g., Randle, 960 F. Supp. 2d at 478-79 (dismissing failure-to-supervise claim where allegations recited applicable standard without providing factual context); Triano v. Town of Harrison, NY, 895 F. Supp. 2d 526, 539-40 (S.D.N.Y. 2012) (collecting cases and dismissing failure to train claim where plaintiff did "no more than make conclusory assertions" that the defendant failed to properly train its employees, without "providing any supporting factual detail about alleged deficiencies in the training program"); Johnson v. City of New York, No. 06cv09426 (GBD), 2011 WL 666161, at *4 (S.D.N.Y. Feb. 15, 2011) (finding plaintiff's failure to train allegation insufficient where plaintiff "[did] not ple[a]d any facts that plausibly allege a specific deficiency in the training or supervision program that accounts for deprivation of [his] constitutional rights" (internal quotation omitted)).

To the extent Plaintiff seeks to argue that the alleged misconduct of Lee's subordinates alone suggests that they must not have been properly trained or supervised, such an unsupported assertion would be insufficient to support a claim for a supervisor's deliberate indifference. See Bridgewater, 832 F. Supp. 2d at 348 ("Bridgewater asserts that '[g]iven the manner in which the correction officers acted in the incident, it cannot be said that they were properly trained and/or closely supervised.' This statement is nothing more than a bare assertion that Fischer was Taylor's supervisor, which is insufficient to state a § 1983 claim." (internal citation omitted)).

As Plaintiff has not alleged facts showing that Lee was aware of and disregarded a risk of serious harm to Plaintiff that existed at the time of the alleged March 23, 2012 assault, I recommend that Lee's motion to dismiss be granted, pursuant to Rule 12(b)(6), to the extent that the motion seeks dismissal of Plaintiff's failure-to-protect claim arising from that assault.

3. Qualified Immunity

As this Court recommends that, under Rule 12(b)(6), Lee's motion to dismiss Plaintiff's claim against him relating to the March 23, 2012 assault be granted, this Court need not reach the issue of Lee's qualified immunity with respect to that claim. As to Plaintiff's claim that Lee failed to protect him from the earlier, November 1, 2011 assault, however, this Court must also consider Lee's qualified immunity argument.

In general, Lee argues that he is entitled to qualified immunity on the basis that his "responsiveness . . . to [P]laintiff's complaints does not support . . . failure[-]to[-]protect claims under clearly established law." (Def. Mem. at 25.) Lee does not dispute, though, that, at the time of the alleged November 1, 2011 assault, Plaintiff had a clearly established right to be protected from a substantial risk of serious harm. See Farmer, 511 U.S. at 834. Rather, with respect to that assault, Lee only appears to argue that it was objectively reasonable for him to believe that his actions in reviewing and denying Plaintiff's request for a housing transfer were lawful.

Lee's arguments ignore Plaintiff's particular allegation that Lee denied the transfer request without conducting any investigation or taking any protective action, on the basis that Plaintiff had not identified by name the Green Haven staff members who were the source of his fear. (Am. Compl. ¶ 178.) Given that, at the time of the alleged assault, it was clearly established that a prisoner could apprise prison officials of a serious risk of harm without specifically naming the source of a threat, see Hayes, 84 F.3d at 621, Lee's qualified immunity defense must fail, at this stage. While the facts adduced in discovery may reveal that Lee's conduct was objectively reasonable in light of the facts known to him at the time, they may also show that his failure to investigate Plaintiff's request for a housing transfer or to separate Plaintiff from Tour-Two, A-Block staff evinced a deliberate disregard for a known risk of harm.

Accordingly, I recommend that the Court deny Lee's motion to dismiss, on qualified-immunity grounds, Plaintiff's failure-to-protect claim arising from the November 1, 2011 assault.

III. LEAVE TO AMEND

The Second Circuit has cautioned that district courts "should not dismiss [a pro se complaint] without granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated." Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (quoting Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999)). While Plaintiff has already amended his pleading once, he did so without the benefit of a judicial decision explaining any deficiencies with his claims. Moreover, while the Amended Complaint currently fails to state a failure-to-protect claim against Lee arising from the March 23, 2012 assault, it is possible that Plaintiff could plead additional facts showing Lee's deliberate indifference under one or more of the three theories he advanced in connection with his opposition to Lee's motion to dismiss; in particular, this Court notes that Plaintiff attempted, in his opposition papers, to assert a theory based on Lee's supposed knowledge of pervasive retaliatory assaults at Green Haven, but the only source of that theory was a document that the Court could not consider in opposition to Lee's motion. (See Discussion, supra, at Sections II(A), (D)(2)(b).)

For these reasons, I recommend that Plaintiff be afforded an opportunity to amend his pleading to allege any available facts that may plausibly give rise to an inference that Lee violated Plaintiff's Eighth Amendment rights by failing to protect him from the injuries he allegedly suffered during the claimed March 23, 2012 assault.

CONCLUSION

For all of the foregoing reasons, I recommend: (1) that the motion to dismiss filed by defendant Hann (Dkt. 147) be denied in its entirety; and (2) that the motion to dismiss filed by defendants Lee, Snedeker, and D'Angelico (Dkt. 118) be granted to the extent that it seeks dismissal of the failure-to-protect claim against Lee arising from the March 23, 2012 assault, and denied in all other respects. I further recommend that Plaintiff be given 30 days to replead his failure-to-protect claim against Lee arising from the March 23, 2012 assault.

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report to file written objections. See also Fed. R. Civ. P. 6 (allowing three (3) additional days for service by mail). Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Ronnie Abrams, United States Courthouse, 500 Pearl Street, New York, New York 10007, Room 2203, and to the chambers of the undersigned, United States Courthouse, 500 Pearl Street, Room 1660, New York, New York 10007. Any requests for an extension of time for filing objections must be directed to Judge Abrams. FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBEJCTIONS AND WILL PRECULDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140, 155 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 58 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983). Dated: New York, New York

February 24, 2016

Respectfully submitted,

/s/_________

DEBRA FREEMAN

United States Magistrate Judge Copies to: The Hon. Ronnie Abrams, U.S.D.J. All counsel (via ECF)