Baptiste v. Griffin

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UNITED STATES DISTRICT COURT i WUECTROMECALUS □□□□□

SOUTHERN DISTRICT OF NEW YORK feoe Me

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MALCOLM BAPTISTE,

Plaintiff, OPINION & ORDER

18 CV 7274 (NSR)

-against-

THOMAS GRIFFIN, et al.,

Defendants.

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NELSON S. ROMAN, United State District Judge

Plaintiff Malcolm Baptiste (“Plaintiff”), proceeding pro se, commenced the instant action

on August 10, 2018. (ECF No. 2). In this action, Plaintiff alleges defendants violated his Eighth

Amendment rights. Plaintiff brings 42 U.S.C. § 1983 claims for excessive force against

Defendant Correction Officer Michael T. Nagy (“C.O. Nagy”). Plaintiff brings supervisory

liability claims against Defendants Thomas Griffin (“Griffin”) and Robert Cocuzza (“Cocuzza”).

Plaintiff argues that the alleged actions amount to cruel and unusual punishment by the

defendants and gross negligence or deliberate indifference by the supervisory defendants.

Presently before the Court is Defendants’ Motion to Partially Dismiss the Complaint.!

For the following reasons, Defendants’ motion is Granted.

BACKGROUND

For the purposes of this motion, all facts in Plaintiff's Complaint are taken as true and are

construed in the light most favorable to pro se Plaintiff.

1 Defendants did not move to dismiss Plaintiff's claim pursuant to 42 U.S.C. § 1983 for use of excessive force as

against Defendant C.O. Nagy.

Plaintiff alleges that on August 3, 2015, while sitting down for breakfast in Green

Haven’s West Mess Hall, a fight broke out between two other inmates inside the West Mess

Hall. (Complaint ¶¶ 6-9). Within moments, the fight was allegedly stopped by correction officers

and the two inmates were handcuffed. (Id., ¶¶ 9-10). Plaintiff alleges that Defendant C.O. Nagy,

who was stationed in the mess hall’s “Chemical Agent Booth,” (Id., ¶ 11), released chemical

agent “without provocation” to the area “closest to the serving line” as one of the “restrained

inmates was being escorted out of the mess hall. (Id., ¶ 12). The other inmate was “hurriedly”

brought to his feet and escorted out of the mess hall. (Id., ¶ 13).

Plaintiff alleges that the “fog from the chemical agent drifted around the mess hall,”

“result[ing] in the plaintiff coughing uncontrollably, his eyes tearing profusely, and vomiting at

the table.” (Id., ¶ 15). While prison guards, posted on the opposite side of the mess hall, were

escorting groups of inmates out of the mess hall, another round of chemical agent was allegedly

released “approximately a row of tables away from where plaintiff was seated,” (Id., ¶ 16),

causing Plaintiff’s lungs and eyes to burn. (Id., ¶ 17). Several guards panicked, vacating their

posts by running out of the mess hall. (Id., ¶ 18). Plaintiff tried to use his shirt collar to cover his

mouth and nose to no avail; he experienced burning to his eyes, nose, throat, and lungs with nose

draining mucus. (Id., ¶ 20). Due to poor visibility and lack of direction from staff, prisoners

allegedly got up and left the mess hall. (Id., ¶¶ 21-22). Plaintiff also tried to leave and was

allegedly struck in the head, neck, and back by another round of chemical agent allegedly

released in the area by the entrance/exit of the mess hall. (Id., ¶¶ 24-25). As he was exiting,

Plaintiff allegedly tripped over someone, falling and hitting his right knee, wrist, and elbow. (Id.,

¶ 26). He was allegedly trampled before getting back to his feet. (Id.).

Plaintiff exited into the C&D yard, as that was the only gate unlocked. (Complaint, ¶ 27).

As the day was hot, the sun allegedly made Plaintiff’s skin burn. (Id., 28). In the yard, prison

guards instructed the inmates to stand with their hands on the wall. (Id., ¶¶ 29-30). Plaintiff

allegedly stood in that position for approximately one hour. (Id., ¶¶ 31-34). Plaintiff was then

instructed to go to another yard, where he was instructed, in the corridor, to remove his shoes,

socks, and clothing, remaining in his under shorts. (Id., ¶¶ 35-40). Plaintiff was then instructed

to walk barefoot to the shower, where he took a two minute shower, rinsing himself off. (Id., ¶¶

41-43). Some minutes later, Plaintiff walked to his housing unit in his wet under shorts. (Id., 44-

49).

Plaintiff informed the nurse on the housing unit that he had been trampled and was

experiencing pain in his right knee, wrist, elbow, arm, and back. (Complaint, ¶ 50). The nurse

told Plaintiff to “go to sick call,” since he looked “okay.” (Id., ¶ 51). That night, Plaintiff signed

up for sick call but was not able to see a nurse until August 5, 2015. (Id., ¶¶ 53-54). During his

visit with the nurse, Plaintiff showed nurse his alleged injuries and requested that photographs be

taken; however he was only given Ibuprofen, and no photographs were taken because there was

no film. (Id., ¶¶ 54-55). Plaintiff also sought treatment from the mental health department at

Green Haven for alleged mental trauma. (Id., ¶ 56).

Plaintiff seeks to recover damages against Defendant Cocuzza for allegedly

“authorizing” Defendant C.O. Nagy’s allegedly repeated use of chemical agents on August 3,

2015. (Id., ¶ 60). Plaintiff further alleges that Defendant Cocuzza was deliberately indifferent

because he had “actual and constructive notice” of Defendant C.O. Nagy’s propensity to

unnecessarily use force against inmates from unspecified “grievances and reports” but failed to

take action. (Id., ¶ 63). Plaintiff also seeks to recover damages against Defendant Griffin for his

alleged negligent supervision of C.O. Nagy. (Id., ¶¶ 61, 64). Plaintiff alleges that Defendant

Griffin also had “actual and constructive notice” of Defendant C.O. Nagy’s propensity to act

improperly towards inmates through unspecified “inmates[’] reports and appeals.” (Id., ¶ 64).

STANDARD OF REVIEW

“To survive a motion to dismiss, a complaint must 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 Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In

evaluating the sufficiency of a complaint, “[a] court ‘can choose to begin by identifying

pleadings that, because they are no more than conclusions, are not entitled to the assumption of

truth.’” Hayden v. Paterson, 594 F.3d 150, 161 (2d Cir. 2010) (quoting Iqbal, 556 U.S. at 679).

“At the second step, a court should determine whether the ‘well-pleaded factual allegations,’

assumed to be true, ‘plausibly give rise to entitlement to relief.’” Hayden, 594 F.3d at 161 (citing

Iqbal, 556 U.S. at 679); accord Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009).

“A claim has facial plausibility when the plaintiff pleads factual content that allows the

court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

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. (internal

quotations omitted). “Where a complaint pleads facts that are merely consistent with a

defendant’s liability, it stops shorts of the line between possibility and plausibility of entitlement

to relief.” Id. (internal quotations omitted).

Pro se complaints are to be liberally construed. Estelle v. Gamble, 429 U.S. 97, 106

(1976). They must be held to less stringent standards than complaints written by lawyers, and

only dismissed when the plaintiff can prove “no set of facts in support of his claim which would

entitle him to relief.” Estelle, 429 U.S. at 106 (quoting Conley v. Gibson, 335 U.S. 41, 45-46

(1957)). This “is particularly so when the pro se plaintiff alleges that his civil rights have been

violated.” Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008). Pro se

complaints must be interpreted as raising the strongest claims they suggest, but “must still state a

plausible claim for relief.” Hogan v. Fischer, 738 F.3d 509, 515 (2d Cir. 2013).

DISCUSSION

I. PERSONAL INVOLVEMENT CLAIMS AGAINST DEFENDANTS GRIFFIN

AND COCUZZA

Plaintiff argues that Defendants Griffin and Cocuzza were personally involved in the alleged

constitutional deprivations. For the following reasons, the Court finds that the Plaintiff does not

allege sufficient facts to establish personal involvement.

It is settled law that “in order to establish a defendant’s individual liability in a suit

brought under § 1983, a Plaintiff must show, inter alia, the defendant’s personal involvement in

the alleged constitutional deprivation.” Grullon v. City of New Haven, 720 F.3d 133, 138-39 (2d

Cir. 2013). “[A] Plaintiff must plead that each Government-official defendant, through the

official’s own individual actions, has violated the Constitution.” Iqbal, 556 U.S. at 676. In the

context of a prisoner’s lawsuit, a Plaintiff must show “more than the linkage in the prison chain

of command” to state a claim against a supervisory defendant. Ayers v. Coughlin, 780 F.2d 205,

210 (2d Cir. 1985).

In the Second Circuit, personal involvement in an alleged constitutional violation may be

established if:

(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 Iqbal, district courts within the

Second Circuit “have been divided as to whether claims alleging personal involvement under the

second, fourth, and fifth of these factors remain viable.” Burns v. Griffin, No. 16 CV 782, 2018

WL 3059655, at *7 (S.D.N.Y. June 20, 2018) (citing Marom v. City of N.Y., 2016 WL 916424, at

*15 (S.D.N.Y. Mar. 7, 2016)). Although the courts within this circuit are split on the continued

viability of Colon, various district courts have determined that only two factors survive. See

Bellamy v. Mount Vernon Hosp., No. 07 Civ. 1801, 2009 WL 1935939, at *6 (S.D.N.Y. June 26,

2009) (first and third Colon factors remain post-Iqbal), aff’d, 387 Fed. Appx. 55 (2d Cir. 2010);

Spear v. Hugles, No. 08 Civ. 4026, 2009 WL 2176725, at *2 (S.D.N.Y. July 20, 2009). The

Second Circuit has yet to resolve this dispute. Burns, 2018 WL 3059655, at *7 (citing Marom,

2016 WL 916424, at *15).

Here, Plaintiff does not allege any facts in the Complaint or in the Memorandum of Law

in Support of Plaintiff’s Opposition to Defendant’s Motion to Partially Dismiss (“Pl. Opp.”) that

would support that Defendants Griffin and Cocuzza were personally involved in the alleged

constitutional deprivations under any standard for supervisory liability. Although Plaintiff cannot

amend the Complaint through statements in his opposition brief, the statements therein are still

insufficient. There have been no facts presented in the Complaint or the opposition brief to

indicate that Griffin and Cocuzza actively participated in or were personally involved in the

deployment of the chemical agent. (Complaint, ¶¶ 7-56; Pl. Opp., 3-6). Plaintiff conceded that

Defendant Cocuzza was not in the chemical agent booth with C.O. Nagy, (Pl. Opp., 4), and the

allegation that Cocuzza “sanctioned” C.O. Nagy’s release of chemical agents in some manner is

conclusory and implausible on its face. Iqbal, 556 U.S. at 677. The incident that prompted the

use of the chemical agent occurred suddenly and was unplanned.

Plaintiff does not mention the names of Griffin and Cocuzza until the penultimate

paragraph of Plaintiff’s recitation of the facts. (Id., ¶ 58). The Plaintiff alleges in a conclusory

manner that Griffin and Cocuzza were the proximate causes of his injuries without any factual

development. (Id., ¶ 58-59). Conclusory allegations are not entitled to the presumption of truth,

and Plaintiff’s claims against these Defendants may be dismissed on this basis. See Samuels v.

Fischer, 168 F. Supp. 3d 625, 636 (S.D.N.Y. 2016) (“the Supreme Court has made clear,

conclusory … allegations are disentitled … to the presumption of truth” (quoting Iqbal, 556 U.S.

at 681). Additionally, Plaintiff fails to offer any factual support for the allegation that Defendant

Cocuzza authorized the release of the chemical agent. (Complaint, ¶ 61). The release of the

chemical agent was a spontaneous act by the officer stationed in the chemical agent booth,

(Complaint, ¶¶ 11-12), causing the staff and inmates in the mess hall to panic. Even liberally

construed, factual allegations do not support the contention that Defendants Griffin and Cocuzza

were personally involved in any of the alleged deprivation of Plaintiff’s constitutional rights.

Plaintiff also alleges that Defendants Griffin and Cocuzza were on notice of C.O. Nagy’s

alleged past improper use of excessive force from unspecified grievances, reports, and appeals.

(Complaint, ¶¶ 61, 63, and 64). Plaintiff does not give any further details, and does not allege

similar incidents concerning the use of chemical agents. “Ample Second Circuit case law makes

clear that a Plaintiff does not state a claim where he alleges only that a supervisory official

received reports of wrongdoing.” Samuels, 168 F. Supp. 3d at 637 (citations omitted). Mere

“knowledge and acquiescence” of unconstitutional conduct, or mere failure to act on a

complaint, without more, fails to state a claim against a Section 1983 defendant. Faulk v. N.Y.

City Dep’t of Corr., No. 8 Civ. 01668, 2014 WL 239708 (S.D.N.Y. Jan. 21, 2014) (citing Iqbal,

556 U.S. at 677); Sanders v. City of N.Y., No. 14 Civ. 6156, 2016 WL 1023318, at *3 (S.D.N.Y.

Mar. 8, 2016); Sealey v. Giltner, 116 F.3d 47, 51 (2d Cir. 1997) (DOCCS Commissioner was not

personally involved simply because Plaintiff wrote complaint letters to him); Mateo v. Fischer,

682 F. Supp. 2d 423, 430 (S.D.N.Y. 2010) (“[T]he receipt of letters or grievances, by itself, does

not amount to personal involvement.”). Plaintiff fails to provide more than conclusory

allegations that Defendants Griffin and Cocuzza were aware of Defendant C.O. Nagy’s alleged

past improper use of excessive force. Therefore, personal involvement of the Defendants cannot

be supported through the assertion that they were on notice.

Similarly, “[m]ere linkage in the prison chain of command [is not sufficient] to implicate

a commissioner of corrections or a prison superintendent in a §1983 claim.” Styles v. Goord, 431

Fed. Appx. 31, 33 (2d. Cir. 2011) (quoting Richardson v. Goord, 347 F.3d 431, 435 (2d Cir.

2003)). “[C]onclusory, unsupported allegations of gross negligence or the existence of a policy

are simply insufficient to establish liability of supervisory prison officials under §1983.”

Alsaifullah v. Furco, No. 12 Civ. 2907, 2013 WL 3972514, at *16 (S.D.N.Y. Aug. 2, 2013)

(citations and internal quotation marks omitted); accord McNaughton v. de Blasio, No. 14 Civ.

221, 2015 WL 468890, at *6 (S.D.N.Y. Feb. 4, 2015). Simply reciting the Colon factors is

insufficient to state a claim without “factual development.” Samuels, 168 F. Supp. 3d at 636.

For the aforementioned reasons, the claims against Defendants Griffin and Cocuzza are

dismissed for lack of personal involvement.

II. MONETARY DAMAGE CLAIMS AGAINST DEFENDANT IN THEIR

OFFICIAL CAPACITIES BARRED BY THE ELEVENTH AMENDMENT

In the Complaint, Plaintiff asserts § 1983 claims against Defendants Griffin, Cocuzza, and

Nagy in their official capacities. However, Plaintiff clarified that he only sues Defendant Nagy

in his individual capacity. (Pl. Opp., 6). Plaintiff asserts that he is indeed suing Griffin and

Cocuzza in “both” their official and individual capacities. (Id.) Section 1983 claims against

Defendants in their official capacities must be dismissed because a Plaintiff cannot sue a state

officer or employee in his or her official capacity for monetary damages under § 1983. See Will

v. Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989) (a suit under § 1983 against a state

official in his or her official capacity is deemed to be against the state, and is thus barred); see

also Huminski v. Corsones, 386 F.3d 116, 133 (2d Cir. 2004); Kentucky v. Graham, 473 U.S.

159, 168-70 (1985). Therefore, the Plaintiff’s claims for monetary damages against Defendants

Griffin, Cocuzza, and Nagy in their official capacities are dismissed.

III. PLAINTIFF’S INJUNCTIVE RELIEF CLAIMS

Plaintiff failed to address Defendants’ argument for dismissal of the injunctive relief claims.

When a plaintiff “fail[s] to address Defendants’ arguments in support of dismissing [a] claim, it

is deemed withdrawn or dismissed as abandoned.” Johnson v. City of New York, No. 1:15-CV-

8195-GHW, 2017 WL 2312924, at *17 (S.D.N.Y. May 26, 2017); Romeo & Juliette Laser Hair

Removal, Inc. v. Assara I LLC, No. 08-cv-442 (TPG), 2014 WL 4723299, at *7 (S.D.N.Y. Sept.

23, 2014) (“At the motion to dismiss stage ... a plaintiff abandons a claim by failing to address

the defendant’s arguments in support of dismissing that claim (citation omitted)); Bonilla v.

Smithfield Assocs. LLC, No. 09-cv-1549 (DC), 2009 WL 4457304, at *4 (S.D.N.Y. Dec. 4, 2009)

(Chin, J.) (dismissing claims “as a matter of law” as “effectively abandoned” where defendant

had raised three arguments for dismissal and plaintiff responded to only one in his opposition

papers); Lipton v. Cty. of Orange, N.Y., 315 F. Supp. 2d 434, 446 (S.D.N.Y. 2004) (“This Court

may, and generally will, deem a claim abandoned when a plaintiff fails to respond to a

defendant’s arguments that the claim should be dismissed.”). Therefore, Plaintiff’s injunctive

relief claims are dismissed as abandoned claims.

IV. QUALIFIED IMMUNITY FOR DEFENDANTS GRIFFIN AND COCUZZA

Qualified immunity is “an immunity from suit rather than a mere defense to liability,” the

“driving force” for which is “a desire to ensure that insubstantial claims against the

government officials [will] be resolved prior to discovery.” Pearson v. Callahan, 555 U.S.

223, 231 (2009) (quotations omitted). Defendants Griffin and Cocuzza assert that they are

entitled to qualified immunity against this allegation of excessive force.

After liberally construing pro se Plaintiff’s Complaint, no plausible claims against

Defendants Griffin and Cocuzza remain. Therefore, a qualified immunity analysis is not

necessary. However, Defendants Griffin and Cocuzza would be entitled to qualified

immunity if claims had survived in this case because a reasonable official could have

believed that the actions they are alleged to have taken did not violate any clearly established

right of Plaintiff. Lastly, Plaintiff failed to show that Griffin and Cocuzza were personally

involved in the violation of a federal right that was clearly established at the time of the

alleged incident. Spavone v. NYS Dep’t of Corr. Servs., 719 F.3d 127, 135-36 (2d Cir. 2013)

(defendant is “entitled to qualified immunity” if he is not personally involved); Poe v.

Leonard, 282 F.3d 123, 126 (2d Cir. 2002) (“We hold that in order for a supervisor to be held

liable under section 1983, both the law allegedly violated by the subordinate and the

supervisory liability doctrine under which the plaintiff seeks to hold the supervisor liable

must be clearly established”).

CONCLUSION

For the aforementioned reasons, Defendants’ motion to dismiss is granted to the extent of

dismissing all claims asserted against Defendants Griffin and Cocuzza in their official and

individual capacities, all claims against Defendant Nagy in his official capacity, all claims for

monetary damages against Defendants in their official capacities on the basis that they are barred

by the Eleventh Amendment, and all claims for injunctive relief. The only remaining claim is the

alleged use of excessive force as against Defendant C.O. Nagy. Defendant is directed to file an

Answer within twenty-one (21) days of this Opinion. Further, the parties are directed to confer

and to submit a proposed case discovery and scheduling order (blank form attached hereto)

within thirty-five (35) days hereof for the Court’s consideration.

The Clerk of the Court is directed to terminate Defendants Griffin and Cocuzza, mail a

copy of this Opinion to pro se Plaintiff, show proof of service on the docket and terminate the

motion (ECF No. 20).

Dated: October 3 142019 SO ORDERED __

White Plains, New York ee eT 4

“NELSON S. ROMAN

11

UNITED STATES DISTRICT COURT Rev. Jan, 2012

SOUTHERN DISTRICT OF NEW YORK

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CIVIL CASE DISCOVERY PLAN

Plaintiff(s), AND SCHEDULING ORDER

- against -

Defendant(s). CV (NSR)

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This Civil Case Discovery Plan and Scheduling Order is adopted, after consultation with counsel,

pursuant to Fed. R. Civ. P. 16 and 26(f):

1, All parties [consent] [do not consent] to conducting all further proceedings before a

Magistrate Judge, including motions and trial, pursuant to 28 U.S.C. § 636(c). The parties

are free to withhold consent without adverse substantive consequences. (If all parties

consent, the remaining paragraphs of this form need not be completed.)

2. This case [is] [is not] to be tried to a jury.

3, Joinder of additional parties must be accomplished by .

4, Amended pleadings may be filed until .

5. Interrogatories shall be served no later than , and responses thereto

shall be served within thirty (30) days thereafter. The provisions of Local Civil Rule 33.3

[shall] [shall not] apply to this case.

6. First request for production of documents, if any, shall be served no later than

7. Non-expert depositions shall be completed by .

a. Unless counsel agree otherwise or the Court so orders, depositions shall not be held

until all parties have responded to any first requests for production of documents.

b. Depositions shall proceed concurrently.

C. Whenever possible, unless counsel agree otherwise or the Court so orders, non-party

depositions shall follow party depositions.

8, Any further interrogatories, including expert interrogatories, shall be served no later than

9. Requests to Admit, if any, shall be served no later than .

10. Expert reports shall be served no later than .

11. Rebuttal expert reports shall be served no later than .

12. Expert depositions shall be completed by .

13. Additional provisions agreed upon by counsel are attached hereto and made a part hereof.

14. ALL DISCOVERY SHALL BE COMPLETED BY

15, Any motions shall be filed in accordance with the Court’s Individual Practices.

16. This Civil Case Discovery Plan and Scheduling Order may not be changed without leave of

Court (or the assigned Magistrate Judge acting under a specific order of reference).

17. The Magistrate Judge assigned to this case is the Hon. .

18. If, after entry of this Order, the parties consent to trial before a Magistrate Judge, the

Magistrate Judge will schedule a date certain for trial and will, if necessary, amend this

Order consistent therewith.

19, The next case management conference is scheduled for , at

. (The Court will set this date at the initial conference.)

SO ORDERED.

Dated: White Plains, New York

Nelson S. Roman, U.S. District Judge