# Braxton v. Bell

> District Court, N.D. New York · April 29, 2022

URL: https://www.frixlaw.com/law-library/cases/10314785

## Case

- **Court:** District Court, N.D. New York
- **Decided:** April 29, 2022
- **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

BENJAMIN BRAXTON, also known as
Obed/Edom Braxton

Plaintiff,

-against- 9:19-CV-0073 (LEK/ML)

E. BELL, Superintendent, Clinton
Correctional Facility, et al.,

Defendants.

DECISION AND ORDER
I. INTRODUCTION
Plaintiff Benjamin Braxton commenced this pro se action on January 22, 2019, pursuant
to 42 U.S.C. § 1983. Dkt. No. 1. Plaintiff filed an amended complaint on August 21, 2019. Dkt.
No. 32 (“Amended Complaint”). Liberally construed, the Amended Complaint alleges violation
of Plaintiff’s Eighth Amendment rights by Defendants Holland and Marion due to failure to
protect and by Defendants Devlin-Varin, Bell, Johnson, and Merriman due to deliberate medical
indifference. See Am. Compl. at 1–15.
Now before the Court is a Report-Recommendation prepared by the Honorable Miroslav
Lovric after review of Defendants’ motion for summary judgment. Dkt. Nos. 116 (“Report-
Recommendation”), 90 (“Motion for Summary Judgment”). Judge Lovric recommends that the
Motion for Summary Judgment be granted in part and denied in part. For the reasons that follow,
the Court approves and adopts the portion of the Report-Recommendation that recommends
dismissal of Plaintiff’s medical indifference claims. R. & R. at 17–26. The Court undertakes de
novo review of Plaintiff’s failure to protect claims and denies Defendant’s Motion for Summary
Judgment regarding those claims.
II. BACKGROUND
A. Factual Allegations
Petitioner’s factual allegations are detailed in the Court’s Decision and Order dated
August 21, 2019, familiarity with which is assumed. See Dkt. No. 31 at 4–8.
B. The Report-Recommendation

After review of the facts and claims asserted by Plaintiff, Judge Lovric recommended that
Defendants’ motion for summary judgment be granted insofar as it seeks dismissal of Plaintiff’s
medical indifference claims against Defendants Bell, Johnson, Devlin-Varin, and Merriman
because the record establishes that Plaintiff was not deprived of adequate medical care, and even
if medical care was not adequate, the harm caused by the deprivation was not sufficiently
serious. R. & R. at 23, 25–26, 32.
But Judge Lovric recommended that Defendant’s motion be denied regarding Plaintiff’s
claims for failure to protect against Defendants Holland and Marion. Id. at 29. The Magistrate
found that a dispute as to material fact existed regarding whether Holland and Marion were
aware of a substantial risk to Plaintiff prior to the alleged assault committed by another inmate

on April 9, 2018, and were deliberately indifferent to that risk. Id. at 28.
III. STANDARD OF REVIEW
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
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); 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).
IV. DISCUSSION
A. Plaintiff’s Objection
Plaintiff timely filed an objection to the portions of the Report-Recommendation
recommending dismissal of Plaintiff’s claims for medical indifference. See Dkt. No. 125. The
Court finds, however, that Plaintiff’s objection merely reiterates arguments already made in
Plaintiff’s response to the Motion for Summary Judgment. Dkt. No. 109 (“Response”).
Consequently, the Court reviews these portions of the Report-Recommendation for clear

error and finds none. The Court adopts the portions of the Report-Recommendation
recommending dismissal of Plaintiff’s medical indifference claims.
B. Defendant’s Objection
Defendants do not object to the Magistrate’s findings that Holland and Marion are not
entitled to qualified immunity. See generally Defs.’ Obj. The Court reviews this analysis for
clear error and finds none.
Defendants object to the portion of the Report-Recommendation dealing with Plaintiff’s
claims that Holland and Marion failed to protect her. See Dkt. No. 120 (“Defendants’
Objection”).
Prison officials can be held responsible for a failure to protect only if they act with
“deliberate indifference” to inmate safety. Hayes v. Dep’t of Corr., 84 F.3d 614, 620 (2d Cir.
1996) (citing Farmer v. Brennan, 511 U.S. 825, 831 (1994)). The test for deliberate indifference
to inmate safety has an objective component and subjective component. The objective prong

requires that a plaintiff show she was “incarcerated under conditions posing a substantial risk of
serious harm.” Farmer, 511 U.S. at 834. Under the subjective prong, a plaintiff must establish
that the prison official acted with a “sufficiently culpable state of mind.” Id.
To establish a culpable state of mind under the Eighth Amendment deliberate
indifference framework, a plaintiff must show a prison official knew that the plaintiff “face[d] a
substantial risk of harm and [the official] disregard[ed] that risk by failing to take reasonable
measures to abate the harm.” Hayes, 84 F.3d at 620 (citing Farmer, 511 U.S. at 842, 845). An
official “must both be aware of facts from which the inference could be drawn that a substantial
risk of serious harm exists, and he must also draw the inference.” Farmer, 511 U.S. at 837.
The prison official need not be “aware[ ] of the specific risk to the plaintiff or from the

assailant.” Warren v. Goord, 579 F. Supp. 2d 488, 495 (S.D.N.Y. 2008). Rather, the risk may
come from a “single source or multiple sources” and may be a risk that all prisoners in the
plaintiff’s position face. Id. (quoting Farmer, 511 U.S. at 843).
Judge Lovric observed that Defendants’ Motion for Summary Judgment and its attached
declarations discuss Marion and Hanson’s actions taken after the incident on April 9, 2018. See
R. & R. at 28–29. Defendants do not address the fact that Plaintiff allegedly sent letters outlining
the risk to her safety prior to the incident. See id. Plaintiff further asserts that Defendants did
nothing to address the risk of harm described in the letters. See id. Judge Lovric thus found that a
reasonable jury could find both Defendants were aware of a substantial risk of serious harm to
Plaintiff prior to the attack, but failed to take reasonable measures to abate that harm. Id.
In their objection, Defendants now argue that Marion and Hanson did not have any way
to know of a risk to Plaintiff’s health prior to the altercation, stating that “[b]esides the letters

that Plaintiff alleges [she] sent to the Defendants, Plaintiff points to no other event or occurrence
that may have placed Defendants in a position to know or infer that there was a substantial risk
of harm to her before April 9, 2018.” See Def.’s Obj. at 5.
But the Court cannot so easily dispense with Plaintiff’s letters to Marion and Holland.
Plaintiff has, on the record, provided letters that she allegedly sent to Holland on March 5, 2018,
Dkt. No. 32-2 (“Exhibits to the Amended Complaint”) at 1, and March 29, 2018, id. at 3, as well
as letters allegedly sent to Marion on March 8, 2018, id. at 2, and March 29, 2018, id. at 4. These
letters state that Plaintiff is “gender nonconforming” and that inmate Lynch, who was much
larger than she was, had been stalking and sexually harassing her. Id. at 1–4. Plaintiff states in
the letters that she feared for her well-being and requested protective custody. Id. Plaintiff alleges

she was then assaulted by Lynch on April 9, 2018. Id. at 6.
A reasonable jury could choose to believe Plaintiff sent these letters and that they were
received by Defendants, and could thus conclude that Defendants were aware Plaintiff faced a
substantial risk of serious harm as a gender non-conforming inmate being stalked and harassed
by a much larger inmate. See Manning v. Griffin, 15-CV-0003, 2016 WL 1274588, at *7
(S.D.N.Y. Mar. 31, 2016) (stating that the widespread recognition “that transgender inmates face
heightened risks of sexual assault, including in DOCCS facilities, render it plausible that
Defendants, concerned about the safety of Sullivan’s inmates, were aware that the Plaintiff
‘belongs to an identifiable group of prisoners who are frequently singled out for violent attack by
other inmates,’ Farmer, 511 U.S. at 843, and thus was subject to a heightened risk of harm as a
transgender prisoner in a male prison.”) (collecting cases). Defendants do not contend that they
took any action to abate that harm.
In the face of Plaintiff’s letters, Defendants maintain their argument that no dispute as to

material fact exists regarding their awareness of a substantial risk of serious harm. See Defs.’
Obj. at 3–7. They argue that evidence on the record establishes Plaintiff was not actually in a
position of substantial risk. Defendants contend, for example, that Plaintiff refused to accept
protective custody after the incident, that an investigation into the incident found Plaintiff was
the aggressor, and that a separate investigation found no evidence to support Plaintiff’s claims of
harassment occurring prior to April 9, 2018. See id. at 3–5. While this evidence may indeed tend
to show that Plaintiff was not in a position of substantial risk, it is not so strong that a jury could
not credit the contrary evidence on the record and reasonably find in Plaintiff’s favor.
Similarly, Defendants point to testimony from Holland and Marion wherein they state
they did not receive any letters from Plaintiff prior to the incident on April 9, 2018. See id. at 6–

7. Disputes regarding whether or not Plaintiff sent the letters at issue, and whether Defendants
received them, constitute issues of material fact that are not properly resolved by a court at the
summary judgment stage. See Brod v. Omya, Inc., 653 F.3d 156, 164 (2d Cir. 2011) (At
summary judgment “[t]he role of the court is not to resolve disputed issues of fact but to assess
whether there are any factual issues to be tried.”) (internal quotation marks omitted).
Thus, the Court denies Defendants’ Motion for Summary Judgment regarding Plaintiff’s
failure to protect claims against Holland and Marion.
V. CONCLUSION
Accordingly, it is hereby:
ORDERED, that the portion of the Report-Recommendation (Dkt. No. 116) that
recommends dismissal of Plaintiff's medical indifference claims is APPROVED and
ADOPTED in its entirety; and it if further
ORDERED, that Defendants’ Motion for Summary Judgment (Dkt. No 90) is
GRANTED insofar as it seeks dismissal of Plaintiff's medical indifference claim against
Defendants Bell, Johnson, Devlin-Varin, and Merriman; and it is further
ORDERED, that Defendants Bell, Johnson, Devlin-Varin, and Merriman be
TERMINATED from this action; and it is further
ORDERED, that Defendants’ Motion for Summary Judgment (Dkt. No. 90) is DENIED
insofar as it seeks dismissal of Plaintiff’s failure to protect claims against Defendants Holland
and Marion; and it is further
ORDERED, that the Clerk serve a copy of this Decision and Order on all parties in
accordance with the Local Rules.
IT ISSO ORDERED.

DATED: April 29, 2022
Albany, New York
LAWRENCEE.KAHN
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10314785. Public record. Not legal advice.