Opinion
16 CV 782 (VB)
11-29-2016
TREVOR BURNS, Plaintiff, v. THOMAS GRIFFIN, MICHAEL T. NAGY, MARK A. TOKARZ, AND DANIEL J. SHAW, Defendants.
OPINION AND ORDER :
In this Section 1983 action, plaintiff Trevor Burns, proceeding pro se and in forma pauperis, brings civil rights claims against defendants, Superintendent Thomas Griffin, Corrections Officer ("CO") Michael T. Nagy, Lieutenant ("Lt.") Mark A. Tokarz, and CO Daniel J. Shaw, employees of the New York State Department of Corrections and Community Supervision ("DOCCS").
Now pending is defendants Griffin's and Tokarz's motion to dismiss the amended complaint as to them. (Doc. #22).
Defendants Nagy and Shaw have answered the complaint. (Doc. #21).
For the reasons set forth below, the motion is DENIED.
This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331.
BACKGROUND
For purposes of ruling on a motion to dismiss, the Court accepts all factual allegations of the complaint as true, and draws all reasonable inferences in plaintiff's favor.
According to the complaint, plaintiff was an inmate at Green Haven Correctional Facility ("Green Haven") at all times relevant to the complaint. On August 3, 2015, while plaintiff was eating breakfast in Green Haven's West Mess Hall, two other inmates began fighting. Within seconds, corrections officers stopped the fight and the two inmates were handcuffed and laid face down on the floor.
Defendant Nagy "occupied and controlled the West Mess Hall Chemical Agent Booth" and "maliciously released canisters of chemical agents" in spite of being aware that both fighting inmates had been secured. (Compl. ¶¶ 10-11). A corrections officer ordered plaintiff to remain seated, and plaintiff experienced "burning excruciating pain about his face, eyes, arms and hand[, and was] coughing uncontrollably." (Id. ¶ 12). Nagy then allegedly released "additional myriad of chemical agent canisters upon the entire West Mess Hall." (Id. ¶ 13). Plaintiff experienced sharp, stinging pain in his nasal passage and lungs, was unable to breath, and continued coughing.
Corrections officers then directed plaintiff and the other inmates to exit the West Mess Hall. In the process, other inmates and officers overran plaintiff, causing him to fall to the floor and land on his left hand and shoulder. While on the ground, inmates trampled plaintiff and stomped on his back, legs, and side of his head. Plaintiff eventually got up and continued running toward C and D Yard as directed.
Upon entering C and D Yard, defendant Lt. Tokarz allegedly ordered corrections officers to direct plaintiff and other inmates to place their hands on the D-Block corridor wall. Tokarz did not begin the decontamination process and "told correctional officers to take down any inmate that removed their hands from the wall." (Id. ¶ 17). Plaintiff was forced to remain with his hands on the wall for about an hour while experiencing "excruciating pain about his lungs, arms, face, eyes and nose." (Id. ¶ 17-18).
Plaintiff was then directed to proceed to A and B yard and to remove his clothing that was covered with residue from the chemical agents. Plaintiff walked barefoot in his underwear to the shower and washed his face and arms. Plaintiff was then ordered to "line up in the dirt" until he was escorted to his housing unit. (Id. ¶ 19).
Plaintiff claims defendants' conduct caused the following injuries: painful infection in both eyes; sharp pain and mucus secretion in both eyes; tearing eyes when exposed to light; headaches; impaired vision; future risk of blindness; nasal and throat infection; neck pain from swelling on right side of neck, causing difficulty breathing for over a week; sharp pain shooting from left wrist up along left forearm, causing limited movement and grasping strength in left wrist; and permanent damage to lower back causing severe pain and limited mobility. Plaintiff also claims defendants' actions caused him to experience anxiety, depression, stress, nightmares, and loss of appetite.
Plaintiff alleges Superintendent Griffin negligently supervised CO Nagy. Plaintiff claims his and his fellow inmates' grievances, complaints, and appeals put Griffin on notice of Nagy's tendency to use excessive force. Plaintiff claims Griffin failed to take corrective action, "fostered the unconstitutional policy and practices of Nagy," and was "grossly negligent" in his supervision of Nagy. (Id. ¶ 32).
Plaintiff also alleges that on April 16, 2015, approximately four months before the events at issue, he had filed a grievance against Nagy for being intoxicated on duty and for making verbal threats of serious bodily harm to plaintiff. Griffin reviewed and investigated plaintiff's April 16 grievance, and concluded plaintiff's allegations could not be substantiated and therefore, no disciplinary action was necessary. A few days later, Nagy was accused of assaulting another inmate at Green Haven. Plaintiff alleges Griffin was aware of the assault and failed to take remedial action.
Plaintiff brings claims for excessive force and deliberate indifference to serious medical needs against Tokarz, and supervisory liability claims against Griffin.
Tokarz and Griffin now move to dismiss the claims against them. Defendants contend the excessive force claim against Tokarz should be dismissed because plaintiff does not allege Tokarz used any force against him and Tokarz's alleged threat to "take down" anyone who removed their hands from the wall was not a constitutional violation. As to the deliberate indifference to serious medical needs claim, defendants argue plaintiff fails to allege that Tokarz knew of and disregarded an excessive risk to plaintiff's health or safety. Defendants argue the supervisory liability claim against Griffin should be dismissed because plaintiff does not allege Griffin's personal involvement.
In his opposition brief, plaintiff voluntarily withdrew his excessive force claim against Tokarz and his claims against defendants for monetary damages in their official capacities. Those claims are accordingly dismissed.
DISCUSSION
I. Legal Standards
A. Rule 12(b)(6)
In deciding a Rule 12(b)(6) motion, the Court evaluates the sufficiency of the operative complaint under the "two-pronged approach" articulated by the Supreme Court in Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). First, plaintiff's legal conclusions and "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements," are not entitled to the assumption of truth and are thus not sufficient to withstand a motion to dismiss. I d. at 678; Hayden v. Paterson, 594 F.3d 150, 161 (2d Cir. 2010). Second, "[w]hen there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Ashcroft v. Iqbal, 556 U.S. at 679.
To survive a Rule 12(b)(6) motion, the allegations in the complaint must meet a standard of "plausibility." Id. at 678; Bell Atl. Corp. v. Twombly, 550 U.S. 544, 564 (2007). A claim is facially plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. at 678. "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id.
The Court must liberally construe submissions of pro se litigants, and interpret them "to raise the strongest arguments that they suggest." Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (per curiam) (internal quotation marks and citation omitted). Applying the pleading rules permissively is particularly appropriate when, as here, a pro se plaintiff alleges civil rights violations. See Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008). "Even in a pro se case, however . . . threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010) (internal quotation marks and citation omitted). Nor may the Court "invent factual allegations" plaintiff has not pleaded. Id.
B. Section 1983
"To state a claim under § 1983, a plaintiff must allege (1) the deprivation of a right secured by the Constitution or laws of the United States (2) which has taken place under color of state law." Rodriguez v. Weprin, 116 F.3d 62, 65 (2d Cir. 1997). Plaintiff must also allege defendants' personal involvement in the claimed violation of plaintiff's rights. Provost v. City of Newburgh, 262 F.3d 146, 154 (2d Cir. 2001). In other words, a plaintiff bringing a Section 1983 claim "must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution." Ashcroft v. Iqbal, 556 U.S. at 676.
II. Inadequate Medical Care Claim
To assert a claim for constitutionally inadequate medical care, plaintiff must allege "acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97, 106 (1976). This test has both an objective and a subjective component: plaintiff must plead facts showing (i) the alleged deprivation of medical care is "sufficiently serious," and (ii) the officials in question acted with a "sufficiently culpable state of mind." Salahuddin v. Goord, 467 F.3d 263, 279-80 (2d Cir. 2006).
The objective component requires that the alleged deprivation of care be sufficiently serious: the plaintiff's condition must present a "condition of urgency, one that may produce death, degeneration, or extreme pain." Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994) (internal quotation marks and citation omitted). In determining whether an alleged injury is a "serious" medical condition, "factors that have been considered include [t]he existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; the presence of a medical condition that significantly affects an individual's daily activities; or the existence of chronic and substantial pain." Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998) (internal quotation marks and citation omitted).
The subjective component requires a showing that the defendants were aware of plaintiff's serious medical needs and consciously disregarded a substantial risk of serious harm. Salahuddin v. Goord, 467 F.3d 263, 280 (2d Cir. 2006). "[T]he charged official must act with a sufficiently culpable state of mind." Id. (quoting Wilson v. Seiter, 501 U.S. 294, 300 (1991)).
The Court concludes plaintiff has sufficiently alleged facts to support a plausible claim against Tokarz for deliberate indifference to his serious medical needs.
A. Objective component
Plaintiff alleges that as a result of exposure to chemical agents and being trampled during the ensuing chaos, he suffers from eye, nasal, and throat infections, has impaired vision, future risk of blindness, experiences severe ongoing pain, and has difficulty walking. Accepting plaintiff's allegations as true, the Court is unable to conclude, as a matter of law, that plaintiff's alleged injuries could not have resulted in "chronic and substantial pain" that "significantly affect[ed his] daily activities. See Brock v. Wright, 315 F.3d 158, 162 (2d Cir. 2003) (internal quotation marks omitted).
B. Subjective component
As to the subjective component, plaintiff has sufficiently alleged that Tokarz—who was allegedly responsible for overseeing the decontamination process following the inmates' exposure to chemical agents and ordered inmates to remain with their hands on the wall for an hour before being permitted to proceed with decontamination—was aware of plaintiff's serious medical needs. Although it is a close question in light of plaintiff's thin allegations concerning defendant Tokarz's conduct, the Court concludes that, at this early stage of the case, plaintiff has sufficiently alleged facts plausibly supporting a claim that Tokarz, "acting with deliberate indifference, exposed [plaintiff] to a sufficiently substantial risk of serious damage to his future health." See Farmer v. Brennan, 511 U.S. at 843 (internal quotation marks omitted).
III. Negligent Supervision
As discussed above, to state a claim under Section 1983, plaintiff "must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution." Ashcroft v. Iqbal, 556 U.S. at 676.
Prior to Ashcroft v. Iqbal, a supervisor's personal involvement in a claimed constitutional violation could have been established by providing evidence of any one or more of the following five factors:
(1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that unconstitutional acts were occurring.Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995). After Ashcroft v. Iqbal, however, district courts within this circuit have been divided as to whether claims alleging personal involvement under the second, fourth, and fifth of these factors remain viable. See Marom v. City of N.Y. 2016 WL 916424, at *15 (S.D.N.Y. Mar. 7, 2016) (collecting cases). The Second Circuit has yet to resolve this dispute. Id.
Plaintiff will be provided with copies of all unpublished opinions cited in this decision. See Lebron v. Sanders, 557 F,3d 76, 79 (2d Cir. 2009). --------
Plaintiff has alleged sufficient facts to withstand Griffin's motion to dismiss. Indeed, plaintiff specifically alleges Superintendent Griffin knew CO Nagy had used and threatened to use excessive force on inmates on a number of occasions prior to the August 3 incident. Plaintiff himself submitted a grievance on April 16, 2015, alleging Nagy was intoxicated at work, threatened serious physical injury to inmates, and used racial slurs. Plaintiff also alleges Nagy attacked another inmate shortly after plaintiff submitted the April 16 grievance and that Griffin was aware of this assault. Plaintiff therefore contends Griffin knew or should have known of Nagy's propensity to use excessive force against inmates, and yet failed to discipline Nagy adequately or monitor his actions. These allegations support a claim that Griffin was "grossly negligent in supervising" a subordinate who committed a wrongful act and "exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that unconstitutional acts were occurring." See Colon v. Coughlin, 58 F.3d at 873.
IV. Qualified Immunity
Defendants alternatively argue that in the event the Court finds plaintiff has stated viable claims under Section 1983, they are entitled to qualified immunity.
The Court disagrees.
Government officials performing discretionary functions are "shielded from liability for civil damages" as long as their conduct does not breach "clearly established statutory or constitutional rights of which a reasonable person would have known." Lennon v. Miller, 66 F.3d 416, 420 (2d Cir. 1995) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 817-18 (1982)). This defense protects a government actor when it is objectively reasonable to believe his or her actions were lawful at the time of the challenged act. Lennon v. Miller, 66 F.3d at 420 (citations omitted). Thus, "the objective reasonableness test is met—and the defendant is entitled to immunity—if 'officers of reasonable competence could disagree' on the legality of the defendant's actions." Id. (quoting Malley v. Briggs, 475 U.S. 335, 340-41 (1986)).
Assuming as the Court must that the allegations set forth in the complaint are true for purposes of this motion, they plainly state claims for the deprivation of constitutional rights— namely, the right to be free from cruel and unusual punishment in the form of excessive force and the deliberate indifference to serious medical needs.
V. Leave to Amend
In his opposition brief (Doc. #25), plaintiff requests leave to file an amended complaint requesting injunctive relief because he is allegedly still not receiving adequate medical treatment. District courts generally grant pro se plaintiffs an opportunity to amend a complaint unless amendment would be futile. See Hill v. Curcione, 657 F.3d 116, 123-24 (2d Cir. 2011); Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988). In light of plaintiff's pro se status and the early stage of these proceedings, the Court grants plaintiff leave to amend his complaint. In his amended complaint, plaintiff should include all relevant facts supporting his request for injunctive relief.
The amended complaint will completely replace the existing complaint. Therefore, in the event plaintiff chooses to amend, he should include in the amended complaint all information necessary for any of the claims he wishes to pursue. The deadline for plaintiff to submit his amended complaint containing all of his allegations against all defendants is December 30, 2016.
CONCLUSION
The motion to dismiss is DENIED.
Plaintiff's amended complaint, if any, shall be filed by December 30, 2016, in accordance with Part V above. Plaintiff is directed to utilize the Amended Complaint form attached hereto.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
The Clerk is instructed to terminate the motion. (Doc. #22). Dated: November 29, 2016
White Plains, NY
SO ORDERED:
/s/_________
Vincent L. Briccetti
United States District Judge
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