Burns v. Griffin et al, No. 7:2016cv00782 - Document 32 (S.D.N.Y. 2016)

Court Description: OPINION AND ORDER: The motion to dismiss is DENIED. Plaintiff's amended complaint, if any, shall be filed by December 30, 201, 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 an 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, 44445 (1962). The Clerk is instructed to terminate the motion. (Doc. #22). (Signed by Judge Vincent L. Briccetti on 11/29/2016) (lnl)

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Burns v. Griffin et al Doc. 32 USDC SDNY DOCUMENT ELECTRONICALLY FILED DOC #: DA FILED: UNITED S FATES DISTRIC F COt RT SOUFHERNDISTR1CTOFNE\k YORK I REVOR Bt RNS. : Plaintiff. OPINION ANI) ORDER 16CV782(V13) IFIOMAS GRIFFIN. MICHAEL F, NAGY. \IARK A. TOKAR/. AND DANIEL J. SI lAW. F)et’endants. x Briccetti, J.: and j forma In this Section 1983 action. plaintiff 1 revor Burns, proceeding p pauperis, brings civil rights claims against defendants, Superintendent Thomas Griffin, Corrections Officer (“CO”) Michael T. Nagy, Lieutenant (“Ut.”) Mark A. Tokarz, and CO Daniel J. Shavv, employees of the New York State Department of Corrections and Community Supervision (“DOCCS”). Nov pending is defendants Griffin’s and Tokarz’s motion to dismiss the amended complaint as to them. (Doc. #22).’ 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 th en nplaint as true and dras all reasonable InfLrenecs in plamtiffs fa n Defendants Nagv and Sha have ans\cred the complaint Doc #21) Copies Mailed/Faxed Chambers of Vincent L. Briccetti Dockets.Justia.com 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, (Compi. ¶I 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. ¶ 1 2). Nagy then allegedly released “additional myriad of chemical agent canisters upon the entire West Mess Hall.” (]4. ¶ 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 DBlock corridor wall, Tokarz did not begin the decontani ination 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 all for about an hour while experiencina “excruciating pain about his lungs, arms. face. eves and nose” (Id. ¶ 17—i 8). 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. G4. ¶ 1 9). 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 alleucs that on April 1 6. 2015. approximateI Ibur months: before the events at issue. he had filed a urevance auainst \au for heine intoxicated on duty and fbr makinu verbal threats of serious bodily harm to plaintiff. Griffin reviewed and investigated plaintiffs April 16 grievance, and concluded plaintiffs 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 exccssive 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 l2(W In deciding a Rule l2(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. Iabal. 556 U.S. 662,679(2009). First, plaintiff’s legal conclusions and “[tjhreadbare recitals of the elements of a cause of action, supported by mere conclusory statements.” are not entitled 4 to the assumption of truth and are thus not suftcient to withstand a motion to dismiss. Id. at 678: Hayden v. Paterson. 594 F.3d 150, 161 (2d Cir. 2010). Second, “[wjhen there are well-pleaded factual allegations, a court should assume their veracit\ and then determine whether they plausihl\ gi e rise to an entitlement to relief” crpfi.lcbi, 556 U.S. at 679. To survive a Rule 1 2(b)(6) motion, the allegations in the complaint must meet a standard of “plausibility.” Id. at 678: Bell AtI. Corp. v. Tvomblv, 550 U.S. 544. 564 (2007).:\ 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.” Ashcrofl v. lqbal. 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 unlawfull The Court must liberally construe submissions ofp .“ j. litigants, and interpret them “to raise the strongest arguments that they suggest.” Triestrnan v. Fed. Bureau of Prisons. 470 F.3d 471. 474 (2d Cir. 2006) (per curiarn) (internal quotation marks and citation omitted). Applying the pleading rules permissively is particularly appropriate when, as here, a p se plaintiff alleges civil rights violations. See Sealed Plaintiffv. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008). “Even in a p 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 1 62, 1 70 (2d Cir. 201 0) (internal quotation marks and citation omitted). Nor may the Court “invent factual allegations” plaintiff has not pleaded, B. . Section 1983 “To state a claim under § 1983, a plaintiff must allege (I) the deprivation of a right secured by the Constitution or la\s of the United States (2) which has taken place under color of state law.” uezv.Werin, 116 F.3d 62,65 (2d Cir. 1997). Plaintiff must also allege defendants’ personal involvement in the claimed violation of plaintiffs rights. Provost v. City of Ne\vbur ib. 262 F3d 146, 154 (2d Cir, 2001). In other words, a plaintiff bringing a Section 1983 claim “must plead that each Governmentofficial defendant, through the official’s own individual actions. has violated the Constitution.” Ahcroftv,1bal, 556 U. S. at 676. IL 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 plaintiffs 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. 1 994) (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.” ceyArrntron, 143 F,3d 698, 702 (2d Cir, 1998) (internal quotation marks and citation omitted). The subjective component requires a showing that the defend.ants were aware of plaintifrs serious medical needs and consciously disregarded a substantial risk of serious harm. Salahuddin v. Goord, 467 E.3d 263. 280 (2d Cir. 2006). “[Tjhe charged official must act with a sufflcientl\ culpable state of mind.” Id. (quoting Wilson . Seiter. 501 U.S. 294. 300 (1991 ‘0. 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 suffirsfroin eve, nasal, and throat infections, has impaired vision, future risk of blindness, experiences severe ongoing pain, and has difficulty alking. Accepting plaintiffs allegations as true, the Court is unable to conclude, as a matter of law, that plaintiffs alleged injuries could not have resulted in “chronic and substantial pain” that “significantly affect[ed hisj daily activities. g Brock v. Wright, 3 15 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 a are of plaintiffs serious medical needs. Although it is a close question in light of plaintiffs thin allegations concerning defendant Tokari’s conduct, the Court concludes that. at this early stage of the case. plaintiff has suflicienth alleged facts plausibly supporting a claim that Tokari, “acting with deliberate indifference, exposed iplaintiftl to a sufficiently substantial risk of’ serious damage to his health.” See Farmer v. Brennan, 511 U.s. at 843 (internal quotation marks omitted). future III. g.gjigent Supervision As discussed above, to state a claim under Section 1983. plaintiff must plead that each Government-official defendant, through the official’s own indi idual actions, has iolated the hcroff.lbal. 556 U.S. at 676. Constitution.” Prior to i roft. iqbal. a supervisor’s personal inolvement in a claimed constitutional violation could have been established by providing evidence of any one or more of the follovving 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. lgbal, 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. 2 2016 WL 916424, at *15 (S.D.N.Y. Mar. 7,2016) (collecting cases). The Second Circuit has yet to resolve this dispute. j4. 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 vvork, threatened serious physical injury to inmates, and used racial slurs. Plaintiff also alleges Nagy 2 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) 8 attacked another inmate shortly after plaintiff submitted the April 16 grievance and that Griffin was a. are of this assault. Plaintiff therefore contends Griffin kne or should have known ot Nag\ 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 neglient in super ising’’ a subordinate ho committed a rongful act and “exhibited deliberate indifference to the rights of inmates by killing to act on information indicating that unconstitutional acts were occurring.” See Colon v. Coughlin, 58 F.3d at 873. IV. Quali lied lmrnunit [)efendants alternatively argue that in the event the Court finds plaintiff has stated viable claims tinder 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 constitLitional 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 laful 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 offlcers of reasonable competence could disagree’ on the legality of the defendants acti3ns” Id. Iquoline \lal xv s. 475 US. 335. 340—4 (1 986. Assumin as the ( ourt must that the aiications set fbrth in the complaint are true far purposes of this motion, they plainly state claims for the deprivation of constitutional rights— name!), 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 (Doe. 25). plaintiff requests lea e to tile an amended complaint requesting injunctive relief because he is allegedly still not receiving adequate medical treatment. District courts generally grant p se plaintiffs an opportunity to amend a complaint unless amendment would be futile. See Hill v. CLlrcione. 657 F.3d 116. I 23-24 (2d Cir. 2011); Salahuddin v. Cuomo, 861 F.2d 40,42 (2d Cir. 1988). In light of plaintiff’s pse 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 relieE 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. CON CL US ION The motion to dismiss is DENIED. Plaintiffs amended complaint, if any, shall be filed b December 30. 2016. in accordance with Part V above. Plaintiff is directed to utilize the 1 Complaint form attached hereto. \mended The Court certifies pursuant to 28 L.S.C. 191 5 that an appeal from this order ) 3 (aX would not be taken in good faith, and therefore in forma ppjs status is denied for the purpose of an appeal. See Coppedge v. United States. 369 U.S. 438, 44445 (1962). The Clerk is instructed to terminate the motion. (Doe. #22). Dated: November 29. 2016 White Plains. NY SO ORDERED: Vincent L. Briccetti United States District Judge ___________________________________________________ STATES SOuTHERN UNImD DIsTRICT DIsTRICT OF _______ COURT Niw YoIK (In the space above eater the full name(s) of the plaintiff(ci.) AMENDED COMPLAINT agahist’. under the Civil Rights Act, 42 U.S.C. Jury Trial: l93 Yes o No (check one) Civ. ( ) (In the space above enter the full name(s) of the defendantt’s). Ifyou cannot fit the names of all of the defendants in the spicE provided, please write ‘see attached” in the space above and attach an additional sheet of paper with the fill list of names. The names listed in the above caption must be identical to those contained in Part I. Addresses should not be included here.) I. Parties in this complaint: A. List your name, identification number, and the name and address of your current place of confinement, Do the same for any additional plaintifts named. Attach additional sheets of paper as necessary. Plaintiff’s Name TD# Current Institution Ad dress B List all defendants names. positions, places of cnplovmcnt, and the address where each defendant vi’, ‘e ser’ed, Make s’.uet hat the defendants: listed below arc identical ta those contained ri the aboe i’aptioiv Defendant No. I Attach addttional sheets obDaner a’, ncccssarw Name Where Currently Employed Address Rev. 01/2010 Shield Defendant No 2 Name Shield 4 Where C urrently Employed Address Defendant No 3 Name Shield 4 Where Currently Fmploed Address 4 ho did what? L Delendant No 4 Name Shield 4 Where Currently Employed Address Defendant No, 5 Name Shield # Where Currently Employed Address II. Statement of Claim: State as briefly as possible the facts of your case. Describe how each of the defendants named in the caption of this complaint is involved in this action, along with the dates and locations of all relevant events. You may wish to include further details such as the names of other persons involved in the events giving rise to your claims. Do not cite any cases or statutes. If you intend to allege a number of related claims, number and set forth each claim in a separate paragraph. Attach additional sheets of paper as necessary. A. In what institution did the events giving rise to your claim(s) occur? B. Where in the institution did the events giving rise to your claim(s) occur? C Vs htt date D. Facts: Rev 01 2010 md approximmte time did the ents gi tug rise to your claim(s) ccur Was an,onc dsc insohed? Who olso saw what happoood? —— Ill. — — - Injuries: If you sustained injuries related to the events alleged above, describe them and state what medical treatment, if any, you required and received. IV. Exhaustion of Administrative Remedies: The Prison I ttigation Reform Act (“PLRA”), 42 1’ S C e(a), 7 9 1 requires that [njo aUion shall be hroicht \s tb respect )r )‘ricon conditions unde’ CrtOt )Q O ihts titiL h i\ c the’ Fedc1 hi’a ,,k n’onc’ eentrne: ri’’ t,i a’.t rrrrr ‘t!’e’ ,rcerrl ‘,.i,s, :: bet rt’et .‘ei’e “ ‘, ‘. Did our claim(s) arise ss No Rc’t 01 201(1 hile you ss crc confincd in a jail, pi ison or other correctional facility 0 If Yl S, name the jail. prison, or other correctional facility ss here you esents giving rise to your claimjs). B Does the iail. prison oi other correctional facility a here your claim(s) arose has e a gries ance procedure’ Yes C crc confined at the time of the No Do Not Knoa Does the griesance procedure at the jail, prison or other correctional facility a here your claim(s) arose cot er wme or all of your claim(s)? Yes No Do Not Knoa If YLS, which claim(s)? D Did you file a griesance in the jail. prison, or other correctional fcility where your claim(s) arose 9 Yes No If NO, did you file a grievance about the events described in this complaint at any other jail, prison, or other correctional tlcility? Yes E. No If you did file a grievance, about the events described in this complaint, where did you file the grievance? 1. Which claim(s) in this complaint did you grieve? 2. What was the result, if any? 3 What steps, if any. did you take to appeal that decision’ Describe all efforts to appeal to the highest let el of the grievance process F. If you did not tile a grievance. I. Rn 012010 If there are any reasons why you did not file a gries ance, state them here: 4 ____________________________________________ ______________ 2. If von did not informed. 6. Please set forth any file hen a grievance ho and additional and hut informed any officials of r our claim, state v ho ron response. if any: their information that is relevant to the exhaustion of your administrative r em cdi es. You may Note: attach administrative V. exhibits to this complaint any documents related to the exhaustion of your Relief: State you as remedies. what you x ant are UI seeking and the Court to the basis for do for you such ( including amount). the amount of monetary compensation. if any, that ____________________________________________________ ___________________________________________________________ ____________________________________________________________ ___________________________ ____________ ______ ___________________ ___________ ________ ________ ____________________________________________________________________________________________ ________ VI. A, Previous lawsuits: Have you filed action? other lawsuits in stale or federal court dealine with the same facts involved in this claims No Yc B. If your answer to A is YES, describe each lawsuit by answering questions I through 7 below. there is more than one lawsuit, describe the additional lawsuits on another sheet of paper. using the same format. I If Parties to the previous lawsuit: Plaintiff Defendants 2. Court court, (if federal name the if state district; 3. Is the case still pending? Yes county) Approximate date of filing lawsuit 6. the Name of Judge assigned to your case 5. name Docket or Index number 4. court, No If NO, give the approximate date ofdisposition_____,_____ 7. On other claims C. What was the result of the case? (For example: Was the case dismissed? judgment in your favor? Was the case appealed?) Have you filed other lawsuits in state or federal court otherwise rclatin to your imprisonment? No Yes D. Was there If your answer to C there is the same format.) more than Parties to is one the YES, describe each lawsuit by answering questions I through 7 below. (If lawsuit, describe the additional lawsuits on another piece revious la\vsuit: Defendants 2. Court (if federal court, name the district: if state 3. Docket or Index number 4. Name of Judge assigned 5 APPrO\ R Oi2QIU mate eatec to niite your case awsut 6 court, name the county) of paper, using ________________ 6. Is the ease still pendine? Yes No It NO, give the approximate date of disposition V hat was the result of the case? For example: Was the case dismissed? judgment in your fa or? \ as the case appealed?) Was there I declare tinder penalty of perjur that the foregoing is true and correct. Signed this — day of 20 Signature of Plaintiff Inmate Number institution Address Note: All plaintiffs named in the caption of’ the complaint must date and sign the complaint and provide their inmate numbers and addresses. I declare under penalty of perjury that on this day of - 20 . I am delivering this complaint to prison authorities to be mailed to the Pro Se Office of the united States District Court for the Southern District of New York. Signature of Plaintiff:

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