Opinion
9:18-cv-00149 (GLS/TWD)
09-07-2018
ISAAC K. STROMAN, Plaintiff, v. DANIEL MARTUSCELLO, et al., Defendants.
APPEARANCES: ISAAC K. STROMAN 11-A-0292 Auburn Correctional Facility P.O. Box 618 Auburn, NY 13021 BARBARA D. UNDERWOOD Attorney General for the State of New York Counsel for Defendants The Capitol Albany, NY 12224 OF COUNSEL: RYAN L. ABEL, ESQ. HELENA O. PEDERSON, ESQ. Assistant Attorneys General
APPEARANCES: ISAAC K. STROMAN
11-A-0292
Auburn Correctional Facility
P.O. Box 618
Auburn, NY 13021 BARBARA D. UNDERWOOD
Attorney General for the State of New York
Counsel for Defendants
The Capitol
Albany, NY 12224 OF COUNSEL: RYAN L. ABEL, ESQ.
HELENA O. PEDERSON, ESQ.
Assistant Attorneys General ORDER AND REPORT RECOMMENDATION
I. INTRODUCTION
This prisoner civil rights action commenced pursuant to 42 U.S.C. § 1983 has been referred to the Court for Report and Recommendation by the Hon. Gary L. Sharpe, Senior United States District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c).
Plaintiff, currently an inmate in custody of the New York State Department of Corrections and Community Supervision ("DOCCS"), alleges in his complaint the violation of his rights under the Fifth, Eighth, and Fourteenth Amendments, along with state law claims of assault, battery, false imprisonment, disparagement, misrepresentation, fraud, and neglect during his confinement at Coxsackie Correctional Facility ("Coxsackie"). (Dkt. No. 1.) Defendants remaining after initial review under 28 U.S.C. § 1915(e) and 1915A are Corrections Officer ("C.O.") Tirigllio ("Tirigllio"), C.O. Bence ("Bence"), C.O. Steele ("Steele"), Scott Ranze (formerly known as Sgt. Ramsey) ("Ramsey"), C.O. Pasqurillio ("Pasqurillio"), and Sgt. Bailey ("Bailey"). (Dkt. No. 8.)
While spelled "Tirigllio" in Plaintiff's papers and on the Clerk's Office docket, the Defendant's name is spelled "Turigllio" in Defendant's motion papers. (Dkt. No. 20-1 at 1.)
Claims surviving initial review are: (1) Eighth Amendment excessive force claims against Defendants Tirigllio, Bence, Steele, and Ramsey; (2) Eighth Amendment failure to intervene claims against Defendants Pasqurillio and Bailey; (3) First Amendment retaliation claims against Defendants Tirigllio and Bence; and (4) state law assault and battery claims against Defendants Tirigllio, Bence, Steele, and Ramsey. (Dkt. No. 8 at 19.)
Page references to documents identified by docket number are to numbers assigned by the CM/ECF docketing system maintained by the Clerk's Office.
Presently before the Court is Defendants' motion for partial dismissal of Plaintiff's complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). (Dkt. No. 20-1.) Defendants move to dismiss the following claims: (1) the Eighth Amendment failure to intervene claims against Defendants Pasqurillio and Bailey; and (2) the state law assault and battery claims against Defendants Tirigllio, Bence, Steele, and Ramsey. Id. at 6. Plaintiff has filed opposition to the motion. (Dkt. No. 22.) For the reasons that follow, the Court recommends Defendants' motion to dismiss be granted in part and denied in part.
II. BACKGROUND
The following relevant facts are derived from the face of Plaintiff's complaint and are accepted as true for the purposes of deciding this motion. See Erickson v. Pardus, 551 U.S. 89, 94 (2007).
Plaintiff was a prison inmate being held in Coxsackie at the time the actions in the complaint occurred. (Dkt. No. 1 at ¶ 2.) On or about February 1, 2015, Plaintiff was locked in his cell when Defendant Tirigllio approached him. Id. at ¶ 15. Tirigllio questioned Plaintiff about grievances filed against other officers and threatened that Plaintiff would be leaving the facility in a body bag if the grievances were not retracted. Id. Plaintiff contacted the area supervisor to make him aware of the threat made by Tirigllio. Id. at ¶ 16. Plaintiff was then moved from 2 Company, where he was housed, to 3 Company. Id.
Paragraph numbers are used where documents identified by CM/ECF docket number contain consecutively numbered paragraphs.
On February 9, 2015, Plaintiff was asked by Defendant Bence if he would like his keep-lock shower. Id. at ¶ 17. Plaintiff stated that he would. Id. Bence then asked Plaintiff if he knew Tirigllio. Id. Plaintiff confirmed that he did and asked why Bence wanted to know. Id. Bence responded "Because that's my brother. That's why." Id. Plaintiff was then released from his cell to take his shower. Id. at ¶ 18.
Plaintiff entered the caged-in shower stall which was opened by Defendant Steele. Id. at ¶ 19. Later, Bence entered the shower area and stated that showers were over. Id. at ¶ 21. Bence and Steele proceeded to release the other inmates from their caged-in showers for them to return to their cells. Id. Bence and Steele then re-entered the shower area to release Plaintiff. Id.
Bence raised his hand and arm towards Plaintiff's torso, effectively blocking Plaintiff's attempt to leave the caged-in shower. Id. at ¶ 22. Plaintiff then took two steps back into the shower. Id. Bence followed Plaintiff into the shower stall and began taunting him. Id. at ¶ 23. Bence stated Plaintiff was a "pussy" for writing grievances against fellow officers and that Plaintiff would take a swing at Bence now if he was not a "pussy." Id. Plaintiff responded that if Bence swung first, he would defend himself. Id. Bence then pushed Plaintiff. Id. at second ¶ 23. Plaintiff dropped his towel, soap and clothing in his hands to the floor and informed Bence that if he put his hands on him again that Plaintiff would give Bence what he was looking for. Id.
Bence responded by head-butting Plaintiff, resulting in a laceration on Plaintiff's forehead. Id. Plaintiff then swung and hit Bence in the jaw, causing Bence to fall to the ground. Id. Steele entered and attempted to strike Plaintiff. Id. at ¶ 24. Plaintiff threw two punches at Steele causing Steele to fall to the floor. Id. While falling, Steele grabbed onto Plaintiff's shorts. Id. Plaintiff struggled to prevent Steele from removing his shorts to avoid being naked and feeling defenseless. Id. at ¶ 25. Bence then struck Plaintiff in the shoulder and the chin. Id. Steele grabbed Plaintiff by the hair and pulled him to the ground. Id. at ¶ 26. Bence got on top of Plaintiff and struck him several times in the abdomen before continuing to strike Plaintiff in the facial area while Steele held down Plaintiff's arms. Id. In fear of becoming unconscious, Plaintiff turned over onto his stomach as Bence and Steele continued to strike him. Id. at ¶ 27.
A "response team" including Defendants Pasqurillio, Bailey and Tirigllio, then arrived and entered the shower area. Id. at ¶ 28. Tirigllio shouted, "This grievance writing mother-fucker" and proceeded to kick Plaintiff under his right eye and in his facial area. Id. On the third kick Plaintiff raised his right hand, which was struck by the kick, causing his hand to fracture. Id.
Plaintiff was handcuffed and ordered to stand up by Pasqurillio. Id. Tirigllio used Plaintiff's towel to wipe the blood from Plaintiff's face. Id. at ¶ 29. Defendants told Plaintiff he was lucky they did not kill him and that Plaintiff would not be so lucky next time. Id. Defendants then twisted Plaintiff's arm, while he was cuffed behind his back, and took him to the infirmary. Id.
At the infirmary Defendant Ramsey had Plaintiff's handcuffs removed and ordered Plaintiff to put both hands on the wall. Id. at ¶ 30. Plaintiff informed Ramsey that he could not raise his arms high enough to do so. Id. Ramsey told Plaintiff he had better find a way. Id.
Dr. Miller entered the room to examine Plaintiff. Id. Dr. Miller informed Ramsey that Plaintiff needed to be taken to an outside hospital based on the seriousness of his injuries. Id. Dr. Miller was then escorted out of the examination room. Id. at ¶ 31.
Ramsey again ordered Plaintiff to place his hands on the wall. Id. Plaintiff informed Ramsey that he still was not capable. Id. Ramsey instructed the other Defendants to close the door first and followed by instructing the other Defendants to "beat him down but don't hit him in the face". Id. Tirigllio and another unidentified individual hit Plaintiff on his back and legs. Id. After a few seconds, Plaintiff fell to the floor. Id. Ramsey then ordered the other Defendants to stop. Id.
Plaintiff was handcuffed and taken to Albany Medical Center where it was determined that he suffered from multiple lacerations, contusions and fractured bones. Id. at ¶ 32. Plaintiff was given a CAT scan for his shoulder, neck, head and back. Id.
III. LEGAL STANDARD
A defendant may move to dismiss a complaint "for failure to state a claim upon which relief can be granted" under Federal Rule of Civil Procedure 12(b)(6). The motion tests the formal legal sufficiency of the complaint by determining whether it conforms to Rule 8(a)(2), which requires that a complaint include "a short and plain statement of the claim showing that the pleader is entitled to relief." Bush v. Masiello, 55 F.R.D. 72, 74 (S.D.N.Y. 1972). Satisfaction of the requirement that a plaintiff "show" he or she is entitled to relief requires that the complaint "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 Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "Determining whether a complaint states a plausible claim for relief . . . requires the . . . court to draw on its judicial experience and common sense . . . . [W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not shown - that the pleader is entitled to relief." Iqbal, 556 U.S. at 679 (internal citation and punctuation omitted).
A complaint may be dismissed, pursuant to Rule 12(b)(6), only where it appears that there are not "enough facts to state a claim that is plausible on its face." Twombly. 550 U.S. at 570. While Rule 8(a)(2) "does not require detailed factual allegations, . . . it demands more than an unadorned, the-defendant-harmed-me-accusation." Iqbal, 556 U.S. at 678 (citation and internal quotation marks omitted). A complaint which "tenders 'naked assertion[s]' devoid of 'further factual enhancement'" does not suffice. Id. (citation omitted).
"In reviewing a complaint for dismissal under Rule 12(b)(6), the court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor." Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994) (citation omitted). However, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678.
In considering a Rule 12(b)(6) motion, "the court considers the complaint, any written documents attached to them, and any matter of which the court can take judicial notice for the factual background of the case." L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 422 (2d Cir. 2011) (citation and internal quotation marks omitted); see also Cortec Indus., Inc. v. Sum Holding L.P, 949 F.2d 42, 47 (2d Cir. 1991).
Where a party is proceeding pro se, the court is obliged to "read [the pro se party's] supporting papers liberally, and . . . interpret them to raise the strongest arguments that they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994) (citations omitted); see also Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (courts remain obligated to construe pro se complaints liberally even after Twombly).
IV. ANALYSIS
Defendants move to dismiss the following claims: (1) the Eighth Amendment failure-to-intervene claims against Defendants Pasqurillio and Bailey; and (2) the state law assault and battery claims against Defendants Tirigllio, Bence, Steele, and Ramsey. (Dkt. No. 20-1 at 6.)
A. Failure to Intervene Pursuant to the Eighth Amendment
A prison official who is present while an assault upon an inmate occurs may bear responsibility for any resulting constitutional deprivation, even if he did not directly participate. See, e.g., Tafari v. McCarthy, 714 F. Supp. 2d 317, 342 (N.D.N.Y. 2010); Cicio v. Graham, No. 9:08-CV-534 (NAM/DEP), 2010 WL 980272, at *13 (N.D.N.Y. Mar. 15, 2010.) To establish liability under a failure to intervene theory, a plaintiff must prove the use of excessive force by some other individual, and that the defendant under consideration: (1) possessed actual knowledge of the use by another of excessive force; (2) had a realistic opportunity to intervene and prevent the harm from occurring; and (3) nonetheless disregarded that risk by intentionally refusing or failing to take reasonable measures to end the use of excessive force. Curley v. Vill. of Suffern, 268 F.3d 65, 72 (2d Cir. 2001). Thus, mere inattention or inadvertence does not rise to a level of deliberate indifference sufficient to support liability for failure to intervene. Cicio v. Lamora, No. 9:08-CV-431 (GLS/DEP), 2010 WL 1063875, at *8 (N.D.N.Y. Feb. 24, 2010) (citations omitted). Indeed, officers generally "cannot be held liable for failure to intervene in incidents that happen in a 'matter of seconds.'" Henry v. Dinelle, No. 9:10-CV-0456 (GTS/DEP), 2011 WL 5975027, at *4 (quoting Parker v. Fogg, No. 85-CV-177 (NPM), 1994 WL 49696, at *8 (N.D.N.Y. Feb. 17, 1994)).
Copies of all unpublished decisions cited herein will be provided to Plaintiff in accordance with LeBron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
Defendants argue that Plaintiff's failure to intervene claim must be dismissed because he fails to allege facts that plausibly demonstrate a claim that Defendants Pasqurillio and Bailey failed to intervene. (Dkt. No. 20-1 at 6.) This Court disagrees.
As set forth above, Plaintiff claims while he was on the ground being struck by Bence and Steele, a "response team," including Defendants Pasqurillio, Bailey and Trigllio, arrived and entered the shower area. (Dkt. No. 1 at ¶¶ 27-28.) Trigllio shouted, "this grievance writing mother-fucker" and proceeded to kick Plaintiff under his right eye and in his facial area. Id. at ¶ 28. On the third kick Plaintiff raised his right hand, which was struck by the kick, causing Plaintiff's hand to fracture. Id. According to Plaintiff, Pasqurillio and Bailey were also present during the assault. Id. at ¶ 39, 42. Plaintiff was handcuffed and ordered to stand up by Pasqurillio, and Tirigllio used Plaintiff's towel to wipe the blood from Plaintiff's face. Id. at ¶ 29.
The facts alleged by Plaintiff plausibly show that both Pasqurillio and Bailey possessed actual knowledge of the use by another of excessive force, particularly watching Tirigllio kick Plaintiff three times. Id. Since Tirigllio was able to kick Plaintiff three separate times, both Pasqurillio and Bailey had a realistic opportunity to intervene and prevent the harm from occurring. Id. Lastly, since Pasqurillio and Bailey were present during the alleged use of excessive force, their inaction shows a disregard of the risk by intentionally refusing or failing to take reasonable measures to end the use of excessive force. Id.
For the reasons set forth above, the Court recommends denying Defendants motion to dismiss pursuant to Rule 12(b)(6) for failure to state a claim upon which relief may be granted against Defendants Pasqurillio and Bailey regarding Plaintiff's Eighth Amendment failure to intervene claims.
B. Assault and Battery Under New York State Law
Defendants Tirigllio, Bence, Steele, and Ramsey seek dismissal of Plaintiff's claims for assault and battery on the grounds that New York Correction Law § 24 shields them from liability for the state law claims in both state and federal court. Cruz v. New York, 24 F. Supp. 3d 299, (W.D.N.Y. 2014). In relevant part, New York Correction Law § 24 states:
No civil action shall be brought in any court of the state, except by the attorney general on behalf of the state, against any officer or employee of the department, . . . in his or her personal capacity, for damages arising out of any act done or the failure to perform any act within the scope of the employment and in the discharge of the
duties by such officer or employee.N.Y. Correct. Law § 24 (McKinney 2017). An employee's actions are deemed to be within the scope of their employment when "the act was done while the servant was doing his master's work, no matter how irregularly, or with what disregard of instructions." Ierardi v. Sisco, 119 F.3d 183, 187 (2d Cir. 1997) (citations omitted). "Consistent with this precept, various courts have held that a correctional officer who uses force while on duty is acting within the scope of employment, and therefore is entitled to the protections of [New York Correction Law] section 24." Deal v. Yurack, No. 9:04-CV-0072 (LEF/DEP), 2007 WL 2789615, at *10 (N.D.N.Y. Sept. 24, 2007) (collecting cases).
Here, Plaintiff claims that "at all relevant times herein," Tirigllio, Bence, Steele, and Ramsey were employed by the State and DOCCS, were acting as agents, servants, and employees of the State and DOCCS, and were and acting "under color of state law and under their authority as" corrections officers and supervising employees. (Dkt. No. 1 at ¶¶ 6-9.) Since those Defendants were on duty when the alleged excessive force was used, New York Correction Law § 24 applies. Accordingly, it is recommended that Defendants' motion to dismiss Plaintiff's state assault and battery claims against Defendants Tirigllio, Bence, Steele, and Ramsey be granted and that the claims be dismissed with prejudice.
V. CONCLUSION
Based upon the foregoing, if the District Court adopts this Report and Recommendation, the following clams remain: (1) the Eighth Amendment excessive force claims against Defendants Tirigllio, Bence, Steele, and Ramsey; (2) the Eighth Amendment failure to intervene claims against Defendants Pasqurillio and Bailey; and (3) the First Amendment retaliation claims against Defendants Tirigllio and Bence. (Dkt. No. 8 at 19.)
ACCORDINLGY, it is hereby
RECOMMENDED that Defendants' Rule 12(b)(6) motion to dismiss for failure to state a claim (Dkt. No. 20-1.) be GRANTED in part and DENIED in part; and it is further
RECOMMENDED that Defendant's motion to dismiss Plaintiff's Eighth Amendment failure to intervene claims against Defendants Pasqurillio and Bailey be DENIED; and it is further
RECOMMENDED that Defendants' motion to dismiss Plaintiffs' state law assault and battery claims against Defendants Tirigllio, Bence, Steele, and Ramsey be GRANTED and that the claims be dismissed with prejudice; and it is hereby
ORDERED that the Clerk provide Plaintiff with a copy of this Order and Report-Recommendation, along with a copy of the unpublished decisions cited herein, in accordance with the Second Circuit decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72. Dated: September 7, 2018
Syracuse, New York
/s/_________
Thérèse Wiley Dancks
United States Magistrate Judge