# Johnson v. Lee

> District Court, N.D. New York · June 29, 2021

URL: https://www.frixlaw.com/law-library/cases/10313889

## Case

- **Court:** District Court, N.D. New York
- **Decided:** June 29, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
MICHAEL JOHNSON,
Plaintiff,
-against- 9:19-CV-1075 (LEK/DJS)
H. EIGO,
Defendant.
MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION
Plaintiff Michael Johnson brings this pro se action, pursuant to 42 U.S.C. § 1983, alleging
violations of his constitutional rights during his confinement at the Eastern Correctional Facility
(“Eastern C.F.”). Dkt. No. 1 (“Complaint”). Plaintiff commenced this action on August 30, 2019
and filed his application to proceed in forma pauperis the same day. See Docket. After review of
the Complaint pursuant to 28 U.S.C. §§ 1915(e) and 1915A, the district court dismissed certain
claims made in the Complaint and permitted only Plaintiff’s failure to protect claim against

defendant Eigo to proceed. Dkt. No. 9 at 6–8.
On January 19, 2021, Defendant filed a motion for summary judgment seeking to dismiss
the Complaint in its entirety. Dkt. No. 30 (“Motion”). On March 16, 2021, Plaintiff filed a
response opposing the Motion. Dkt. No. 36 (“Response”). On April 22, 2021, the Honorable
Daniel J. Stewart, United States Magistrate Judge, recommended that the Court grant
Defendant’s motion for summary judgment and that the Complaint be dismissed. Dkt. No. 40
(“Report-Recommendation”). On June 3, 2021, Plaintiff filed timely objections to the Report-
Recommendation. Dkt. No. 46 (“Objections”). For the reasons set forth below, the Court
approves and adopts the Report-Recommendation with modification.
II. BACKGROUND
A. Factual Allegations
Plaintiff’s factual allegations are detailed in the Report-Recommendation, familiarity with

which is assumed. See R. & R. at 2–3. For convenience, the Court summarizes them here.
On August 13, 2017, Plaintiff was assaulted by another inmate in the main recreation yard
of Eastern C.F. Dkt. Nos. 37 (“Johnson Decl.”) ¶ 6; 30-4 (“Eigo Decl.”) ¶ 7. Defendant was a
correction officer assigned to the recreation yard and responded to the attack after it began. Eigo
Decl. ¶¶ 6-9; Dkt. No. 30-3 (“Johnson Dep.”) at 18–19. Prior to the assault, neither Plaintiff nor
Defendant had any reason to believe an attack was imminent. Eigo Decl. ¶ 12; Johnson Dep. at
17.

On August 31, 2017, Plaintiff filed a grievance at Eastern C.F. claiming he had been the
victim of a preventable assault. Dkt. No. 30-5 (“Black Decl.”) ¶ 24, Ex. A. Plaintiff’s grievance
also referenced outstanding requests under the New York Freedom of Information Law (“FOIL”).
Id. ¶ 24, Ex. A. Eastern C.F.’s Inmate Grievance Resolution Committee (“IGRC”) categorized
the grievance as one relating to FOIL and dismissed it as non-grievable. See id. at Exs. B, D.
Plaintiff’s appeal of the dismissal to the IGRC supervisor was unsuccessful. Id. at Ex. D.
B. The Report-Recommendation
On April 22, 2021, Judge Stewart recommended granting Defendant’s motion for

summary judgment reasoning that, although Plaintiff had properly exhausted his administrative
remedies, the Complaint should be dismissed on its merits. See R. & R. at 4. Judge Stewart
found that Plaintiff failed to allege facts sufficient to meet either the objective or subjective
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prongs of the deliberate indifference standard that governs an Eighth Amendment failure to
protect claim. See id. at 9. The magistrate judge found that Plaintiff failed to plausibly allege the
objective prong—incarceration under conditions posing a substantial risk of serious
harm—because Plaintiff alleged no facts demonstrating evidence of a previous altercation with

his attacker or a complaint by Plaintiff regarding such an altercation. See id. at 9–10. Judge
Stewart likewise found Plaintiff failed to plausibly allege the subjective prong—that Defendant
was aware of facts giving rise to an inference of the risk and that he had, in fact, drawn the
inference—because no facts alleged could show Defendant was aware of a specific threat to
Plaintiff on the day of the attack. See id. at 10.
C. Objections
On June 3, 2021, Plaintiff filed objections to the Report-Recommendation. See Docket.

Construed liberally, Plaintiff’s objections assert that a general substantial risk of serious harm to
Plaintiff existed and Defendant was deliberately indifferent because he did not respond
appropriately when Plaintiff was attacked. See Objections at 2-4.
III. STANDARDS OF REVIEW
A. Report-Recommendation
Within fourteen days after a party has been served with a copy of a magistrate judge’s
report-recommendation, the party “may serve and file specific, written objections to the proposed
findings and recommendations.” Fed. R. Civ. P. 72(b); L.R. 72.1(c). If objections are timely

filed, a court “shall make a de novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b).
However, if no objections are made, or if an objection is general, conclusory, perfunctory, or a
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mere reiteration of an argument made to the magistrate judge, a district court need review that
aspect of a report-recommendation only for clear error. Barnes v. Prack, No. 11-CV-857, 2013
WL 1121353, at *1 (N.D.N.Y. Mar. 18, 2013); Farid v. Bouey, 554 F. Supp. 2d 301, 306—07
(N.D.N.Y. 2008), abrogated on other grounds by Widomski v. State Univ. of N.Y. at Orange,
748 F.3d 471 (2d Cir. 2014). To qualify as a specific, rather than general, objection, the objection
must, “with particularity, identify [1] the portions of the proposed findings, recommendations, or
report to which it has an objection and [2] the basis for the objection.” See Garcia v. Duvall, No.
09-CV-884, 2012 WL 42270, at *1—-2 (N.D.N.Y. Jan. 9, 2012) (internal quotation marks
omitted); see also Machicote v, Ercole, No. 06-CV-13320, 2011 WL 3809920, at *2 (S.D.N.Y.
Aug. 25, 2011) (“[E]ven a pro se party’s objections to a Report and Recommendation must be
specific and clearly aimed at particular findings in the magistrate’s proposal... .”). “A [district]
judge... may accept, reject, or modify, in whole or in part, the findings or recommendations
made by the magistrate judge.” § 636(b).
B. Summary Judgment
A court “shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). The party
moving for summary judgment bears the initial burden of showing, through the production of
admissible evidence, that no genuine issue of material fact exists. Salahuddin v. Gourd, 467 F.3d
263, 272-73 (2d Cir. 2006). The movant may meet this burden by showing that the nonmoving
party has “fail[ed] to make a showing sufficient to establish the existence of an element essential

to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp.
v. Catrett, 477 U.S. 317, 322 (1986).
If the moving party satisfies its burden, the nonmoving party must move forward with
specific facts showing that there is a genuine issue for trial. Salahuddin, 467 F.3d at 273. In that
context, the nonmoving party must do more than “simply show that there is some metaphysical
doubt as to the material facts.” Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986). “Conclusory allegations, conjecture and speculation .. . are
insufficient to create a genuine issue of fact.” Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir.
1998).
The Second Circuit has established that on summary judgment motions “[t]he mere
existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there
must be evidence on which the jury could reasonably find for the plaintiff.” Jeffreys v. City of
New York, 426 F.3d 549, 554 (2d Cir. 2005) (emphasis in original). “At the summary judgment
stage, a nonmoving party must offer some hard evidence showing that [his] version of the events
is not wholly fanciful.” Id. (citation and internal quotation marks omitted). Accordingly,
statements “that are devoid of any specifics, but replete with conclusions, are insufficient to
defeat a properly supported motion for summary judgment.” Bickerstaff Vassar Coll., 196 F.3d
435, 452 (2d Cir. 1999).
In determining whether a genuine issue of material fact exists, the court must resolve all
ambiguities and draw all reasonable inferences against the moving party. Major League Baseball
Props., Inc. v. Salvino, Inc., 542 F.3d 290, 309 (2d Cir. 2008). Where a party is proceeding pro
se, the court is obligated 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).
In applying the summary judgment standard, the district court should not weigh evidence
or assess the credibility of witnesses. Hayes v. New York City Dep’t of Corr., 84 F.3d 614, 619

(2d Cir. 1996); Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir. 1996) (credibility issues, which
are questions of fact for resolution by a jury, are inappropriately decided by a court on a motion
for summary judgment).
IV. DISCUSSION
The Court finds Plaintiff’s Objections to be general and mere reiterations of previous
arguments made to the magistrate judge. Therefore, the Court reviews the Report-
Recommendation for clear error and finds none. The Court adopts the Report-Recommendation

with the following modification added to the magistrate judge’s analysis of Plaintiff’s failure to
protect claim.
A. Failure to Protect Standard
The magistrate judge sets forth the correct standard for an Eight Amendment failure to
protect claim. The court must determine “whether the inmate has demonstrated that 1) he was
incarcerated under conditions posing a substantial risk of serious harm, and that 2) prison
officials exhibited deliberate indifference to the inmate’s plight.” Murray v. Goord, 668 F. Supp.
2d 344, 357 (N.D.N.Y. 2009) (citing cases).

A substantial risk of serious harm may be shown “where there is evidence of a previous
altercation between a plaintiff and an attacker, coupled with a complaint by plaintiff regarding
the altercation or request by plaintiff to be separated from the attacker.” Gilmore v. Rivera, No.
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13-CV-6955, 2014 WL 1998227, at *3 (S.D.N.Y. May 14, 2014); Dublin v. New York City Law
Dep’t, No. 10-CV-2971, 2012 WL 4471306, at *5.(S.D.N.Y. Sept. 26, 2012) (citing Desulma v.
City of New York, No. 98-CV-2078, 2001 WL 798002, at *6 (S.D.N.Y. July 6, 2001)). The
Court finds no clear error in the magistrate judge’s analysis of the particularized threat to
Plaintiff or the magistrate judge’s finding that Plaintiff failed to allege facts sufficient to
withstand summary judgment regarding such a particularized threat.
However, substantial risk may be demonstrated—not only by showing a danger posed by
a specific inmate—but also by showing a more general, excessive risk faced by all prisoners in
the plaintiffs situation. See Farmer v. Brennan, 511 U.S. 825, 843 (1994) (“[I]t does not matter
whether the risk comes from a single source or multiple sources, any more than it matters
whether a prisoner faces an excessive risk of attack for reasons personal to him or because all
prisoners in his situation face such a risk.”); see also Brown v. Budz, 398 F.3d 904, 915 (7th Cir.
2005) (“Indeed, ‘it does not matter .. . whether a prisoner faces an excessive risk of attack for
reasons personal to him or because all prisoners in his situation face such a risk.’”) (citing
Farmer, 511 U.S. at 843) (emphasis original).
Likewise, deliberate indifference to such a general risk may establish the second prong of
a failure to protect claim. Id. The official must both be aware of facts from which they could
draw the inference that a substantial risk of serious harm exists, and must also draw the
inference. Murray, 668 F. Supp. 2d at 358 (quoting Farmer, 511 U.S. at 837). However, officials
are not deliberately indifferent if they react reasonably to the risk of harm. Farmer, 511 U.S. at
845 (“[P]rison officials who act reasonably cannot be found liable under the [Eighth
Amendment].”); see also Hayes v. New York City Dep’t of Corrections, 84 F.3d 614, 620 (2d

Cir. 1996) (a prison official is deliberately indifferent where there is a substantial risk of harm
and they “fail to take reasonable measures to abate the harm”); Justice v. Hulihan, No. 9:11-CV-
419, 2013 WL 5506326, at *2 (N.D.N.Y. Oct. 4, 2013) (“Prison officials . . . must ‘take
reasonable measures to guarantee the safety of the inmates.’”) (quoting Farmer, 511 U.S. at 832).

B. Plaintiff’s General Risk Claim
Plaintiff’s Response may make the argument that (1) all inmates in the recreation yard
faced an excessive, general risk, (2) Plaintiff faced a substantial risk of serious harm as a member
of the at-risk group at the time of attack, and (3) Defendant was aware of this risk due to the
presence of metal detectors at the entrance of the yard and a pattern of assaults in the facility. See
Response at 3 (“The obvious fact that the facility has metal detectors, at the entrance of the yard .
. . because of the occurring patterns of assaults . . . there is a risk of harm or assault on

inmates.”).
However, Plaintiff fails to set forth sufficient facts from which a reasonable jury could
conclude there was a substantial risk of excessive danger to inmates in the recreation yard.
Plaintiff merely makes the conclusory allegation in his Response that there are metal detectors
and “occurring patterns of assaults and violations” throughout the facility. Id.
Likewise, Plaintiff fails to allege sufficient facts from which a reasonable jury could
conclude the Defendant was aware of a general substantial risk of serious harm to inmates in the
yard. In a sworn statement, Defendant declares he was not aware of any potential threat or risk

regarding Plaintiff or other inmate-on-inmate violence on the morning of the attack. Eigo Decl. at
3. Plaintiff offers no evidence to rebut Defendant’s assertion. Plaintiff’s deposition testimony
shows that he himself was not aware of any risk in the recreation yard. Plaintiff testified he had
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no reason to believe he would be attacked in the yard that day, Johnson Dep. at 17, and described
the attack as “unexpected,” id.
Further, even if Plaintiff had pled sufficient facts to establish a general, substantial risk
of serious harm and that Defendant was aware of it, Plaintiff has failed to allege sufficient facts

to show that Defendant acted unreasonably in response to the risk.
Plaintiff argues that a failure to screen inmates at the entrance to the recreation yard
shows unreasonable, reckless behavior sufficient to prove deliberate indifference. Plaintiff’s
Resp. at 1–2. However, a mere failure to employ certain protective measures, such as metal
detectors, is not sufficient to establish deliberate indifference. See Bussey v. Miller, No. 16-CV-
00082, 2020 WL 4719957 (W.D.N.Y. July 1, 2020), report and recommendation adopted, No.
16-CV-82, 2020 WL 4705208 (W.D.N.Y. Aug. 12, 2020) (citing Matthews v. Armitage, 36 F.

Supp. 2d 121, 126 (N.D.N.Y. 1999) (“Additional precautions might have prevented the stabbing
here, but the failure to institute such precautions at most constituted negligence.”)). Further,
Defendant has offered evidence that he was not stationed at the entrance to the yard and was not
responsible for screening inmates. Eigo Decl. at 2. Plaintiff has not set forth any contrary
evidence sufficient to create a material issue of fact. Thus, any alleged failure to screen does not
weigh on the question of Defendant’s deliberate indifference.
Defendant sets forth more unrebutted evidence in his declaration that he acted reasonably.
See id. Defendant states that as soon as he observed the attack, he acted immediately, called for

backup, and ordered the individuals involved on the ground. Id. at 2. Plaintiff’s deposition
testimony echoes Defendant’s assertions. Plaintiff testified that he heard Defendant yelling to get
on the ground before Plaintiff could even turn to respond to the attack. See Johnson Dep. at 18-
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19. Plaintiff further testified that Defendant became involved “not even a second” after Plaintiff
was hit. See id. at 22. Given these undisputed facts, Plaintiff has failed to allege that Defendant
acted unreasonably in responding to any risk that may have been present.
Just as Plaintiff has failed to adequately set forth facts to defeat summary judgment
regarding Defendant’s alleged deliberate indifference to a specific threat, Plaintiff has likewise
failed to allege facts to defeat summary judgment regarding any general threat that may have
existed.
V. CONCLUSION
Accordingly, it is hereby:
ORDERED, that the Report-Recommendation (Dkt. No. 40) is APPROVED and
ADOPTED with the above modification; and it is further
ORDERED, that Defendant’s Summary Judgment Motion (Dkt. No. 30) is GRANTED
in its entirety; and it is further
ORDERED, that Plaintiffs Complaint (Dkt. No 1) is DISMISSED; and it is further
ORDERED, that the Clerk close this action; and it is further
ORDERED, that the Clerk serve a copy of this Memorandum-Decision and Order on all
parties in accordance with the Local Rules.
IT IS SO ORDERED.

DATED: June 29, 2021
Albany, New York

Senior U.S. District Judge
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10313889. Public record. Not legal advice.