Washington v. DuBois

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

renee eee nee ee nee □□□□□□□□□□□□□□□□□□□□□□□□ XK

KENNETH ERIC WASHINGTON,

Plaintiff, OPINION & ORDER

18 CV 7783 (NSR)

-against-

C.O. L. PIPER; SHERIFF CARL E. DUBOIS,

Defendants.

□□□ □□□ ee enn eee ene ne □□ □□□□□□□□□□□□□□□□□□□□□□□□ XK

NELSON S. ROMAN, United State District Judge

Pro se inmate Plaintiff Kenneth Eric Washington (“Plaintiff”) commenced the instant

action on August 23, 2018 asserting 42 U.S.C. § 1983 (“Section 1983") claims against

Defendants. (ECF No. 2). In his Complaint, Plaintiff alleges Defendants violated his Eighth

Amendment rights against cruel and unusual punishment. Plaintiff asserts direct claims against

Defendant Correction Officer L. Piper (“C.O. Piper’) and supervisory liability claims against

Defendant Sheriff DuBois (“DuBois”). As against DuBois, Plaintiff asserts he displayed gross

indifference as a supervisor of the correctional facility during the time of the alleged violation.

Presently before the Court is Defendants’ motion to dismiss the Complaint pursuant to Rule

12(b) 6 of the Federal Rules of Civil Procedure. (“Rule 12(b) 6”). (ECF No. 19.) 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.

ne TTT

Pro se Plaintiff Kenneth Eric Washington (“Plaintiff”) was housed at the Orange County

Correctional Facility (“Jail”) on March 5, 2018, and during the days that followed, as a pre-trial

detainee. On March 5, 2018, at approximately 5:45 a.m. while in the “E-2 Dormitory” of the

facility, Plaintiff was subjected to the poking of his groin by C.O. Piper. Plaintiff subsequently

filed a grievance which was denied as meritless. Plaintiff seeks to recover $750,000 in damages

for mental anguish, and he requests that officers receive better training in preventing sexual

assault and managing cases of alleged sexual assault.

STANDARD OF REVIEW

Rule 12(b) 6

Rule 12(b) 6 provides in relevant part that a party may motion to dismiss a complaint for

“failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12. “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).

□□ 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.” Jd. (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.” /d. (internal quotations omitted).

Although documents filed pro se are to be liberally construed, see Hill v. Curcione, 657

F.3d 116, 122 Qd Cir. 2011), even pro se pleadings “must contain factual allegations sufficient

to raise a ‘right to relief above the speculative level.’” Dawkins v. Gonyea, 646 F. Supp.2d 594,

603 (S.D.N.Y. 2009), quoting Twombly, 550 U.S. at 555. A complaint that “tenders ‘naked

assertions’ devoid of ‘further factual enhancement’” is insufficient. Jgbal, 550 U.S. at 678

quoting Twombly, 550 U.S. at 557. Thus, while the Court is “‘obligated to draw the most

favorable inferences’” that the complaint supports, it “‘cannot invent factual allegations that [the

plaintiff] has not pled.’” Parris v. New York State Dep't Corr. Servs., 947 F. Supp. 2d 354, 361

(S.D.N.Y. 2013) (quoting Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010). In other words,

“the duty to liberally construe a plaintiff’s complaint is not the equivalent of a duty to re-write it

for him.” Joyner vy. Greiner, 195 F. Supp.2d 500, 503 (S.D.N.Y. 2002).

Section 1983

Section 1983 provides that “ [e]very person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State ... subjects, or causes to be subjected, any citizen of the

United States ... to the deprivation of any rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party injured.” 42 U.S.C. § 1983. Section 1983 “ is

not itself a source of substantive rights, but a method for vindicating federal rights elsewhere

conferred by those parts of the United States Constitution and federal statutes that it describes.”

Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979); see Patterson v. County of Oneida, 375 F.3d

206, 225 (2d Cir. 2004). To state a claim under § 1983, a plaintiff must allege “ (1) the

challenged conduct was attributable to a person who was acting under color of state law and (2)

the conduct deprived the plaintiff of a right guaranteed by the U.S. Constitution.” Castilla v. City

of New York, No. 09-CV-5446(SHS), 2013 WL 1803896, at *2 (S.D.N.Y. April 25, 2013); see

Cornejo v. Bell, 592 F.3d 121, 127 (2d Cir. 2010). Therefore, a § 1983 claim has two essential

elements: (1) the defendant acted under color of state law, and (2) as a result of the defendant’s

actions, the plaintiff suffered a denial of his federal statutory rights, or his constitutional rights or

privileges, See Annis v. County of Westchester, 136 F.3d 239, 245 (2d Cir. 1998); Quinn v.

Nassau Cty. Police Dep’ t, 53 F. Supp. 2d 347, 354 (E.D.N.Y, 1999) (Section 1983 “furnishes a

cause of action for the violation of federal rights created by the Constitution.”) (citation omitted).

DISCUSSION

Personal Involvement

Plaintiff fails to assert personal involvement on the part of Defendant DuBois in this

matter. In order to hold a defendant responsible for a constitutional deprivation, Plaintiff must

demonstrate, inter alia, the defendant’s personal involvement. Grullon v. City of New Haven,

720 F.3d 133, 138-39 (2d Cir. 2013). “[P]ersonal involvement of Defendants in alleged

constitutional deprivations is a prerequisite to an award of damages under [42 U.S.C. § 1983.]”

McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir. 1977).“The general doctrine of respondeat

superior does not suffice and a showing of some personal responsibility of the Defendant is

required.” Al-Jundi v. Estate of Rockefeller, 885 F.2d 1060 (2d Cir. 1989); Monell v. New York

City Dept. of Social Services, 436 U.S. 658, 692-95 (1978). Supervisory officials may be

personally involved within the meaning of Section 1983 only if he or she participated in

unlawful conduct. See Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir. 1986). “A Plaintiff must

thus allege a tangible connection between the acts of a Defendant and the injuries suffered.”

Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986). “[A] Plaintiff must plead that each

Government-official defendant, through the official’s own individual actions, has violated the

Constitution.” Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). 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).

Here, Plaintiff fails to allege facts of any personal involvement by Defendant DuBois.

There is merely the allegation of supervisory approval of the alleged Section 1983 violation.

Within this circuit, courts have held that the mere allegation of supervisory approval, without

more, is insufficient to show any personal involvement. See Gomez v. Sepiol, 11-cv-1017 (SR),

2014 WL 1575872 at *6 (W.D.N.Y., Apr. 11, 2014), (Court noting that merely rubber stamping

the results of a disciplinary hearing is insufficient to establish personal involvement in a § 1983

claim); Rodriguez v. The City of New York, 644 F. Supp.2d 168, 199 (E.D.N.Y., 2008)

(Complaint against several individual defendants dismissed where Court held that the approval

of an employment decision to terminate plaintiff in reliance on other individuals did not

constitute personal involvement for § 1983 purposes); Allah v. Poole, 506 F.Supp.2d 174, 190

(W.D.N.Y., 2007) (dismissing complaint against defendant where sole allegation was that he, as

a supervisor, approved the recommendation of another employee to transfer plaintiff to a

restrictive housing unit within a correctional facility, holding that mere approval did not

establish sufficient personal involvement).

For the aforementioned reasons, the claim against Defendant DuBois is dismissed for

lack of personal involvement.

8" Amendment

The Eighth Amendment of the United States Constitution prohibits cruel and unusual

punishment against a prisoner. Whitley v. Albers, 475 U.S. 312, 319 (1986). Sexual abuse of a

prisoner by a corrections officer may be the basis for an 8" Amendment claim under § 1983.

Boddie v. Schneider, 105 F.3d 857, 859 (2d Cir. 1997). To establish a violation of the Eighth

Amendment, the following two elements must be met: (1) The alleged abuse must be

“objectively, sufficiently serious”; and (2) the prison official must have a “sufficiently culpable

state of mind.” Farmer v. Brennan, 511 U.S. 825, 834 (1994),

Even though Plaintiff does no specifically discern in his Complaint, he was a pre-trial

detainee. (ECF No. 20). Therefore, Plaintiff’s allegations must sufficiently state a claim against

Defendant Piper under the Fourteenth Amendment standard applicable to pretrial detainees. See

Darnell v, Pineiro, 849 F.3d 17, 35 (2d Cir. 2017) citing Kingsley v. Hendrickson, U.S. , 135

S. Ct. 2466, 2476 (2015).

Under the objective standard,' the sexual abuse must be “objectively, sufficiently serious”

considering “contemporary standards of decency, but “conditions that cannot be said to be cruel

and unusual under contemporary standards are not unconstitutional.” Boddie v. Schneider, 105

F.3d 857, 861 (2d Cir. 1997) quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981); see also

Crawford v. Cuomo, 796 F.3d 252 (2d Cir. 2015). In Boddie, infra, though the Court held that

certain allegations of sexual abuse may violate contemporary standards of decency and

* An assessment of the objective standard remains pursuant to the same standards as the Eight Amendment

proscribed prior to Darnell v. Pineiro, 849 F.3d 17, 35 (2d Cir. 2017).

constitute a violation of the Eighth Amendment, it noted that the alleged abuse must be “severe

or repetitive” to establish that the conduct complained of was objectively, sufficiently serious.

See Boddie v. Schneider, 105 F.3d at 861. The Boddie Court rejected allegations of a small

number of incidents in which the defendant made inappropriate comments, touched Plaintiff's

genitals and pressed against Plaintiff without his consent, and the Court found this was not in

violation of the Eighth Amendment, Jd.

Courts following Boddie, have noted that where the allegation is “a single incident of sexual

abuse” it must be “sufficiently severe or serious,” in order to objectively violate the Eighth

Amendment in that the act alleged must demonstrate “intentional contact with an inmate’s

genitalia ... which serves no penological purpose and is undertaken with the intent to gratify the

officer’s sexual desire or humiliate the inmate.” Crawford, 796 F.3d at 257-58 (finding objective

prong satisfied where officer was alleged to have “fondl[ed] and squeeze[ed] [the inmate’s]

penis,” “roamed” the inmate’s thigh, to “make sure [he] did not have an erection’); see also

Shannon v. Venetozzi, 670 Fed. Appx. 29, 31 (2d Cir. 2016) (allegations that officer hit and

fondled the inmate’s genitals and rubbed his buttocks while stating that “[t]his is my visiting

room and I run it the way I want,” on four occasions sufficient for Eighth Amendment violation);

Shepherd y, Fischer, 08-cv-9297 (RA), 2018 WL 3122053 at *2 (S.D.N.Y. June 26, 2018)

(inmate allegations that officer “rammed” a metal wand “between [his] ... butt cheeks,” and

stating to inmate that he “should ... ‘f [Plaintiff] with it,” sufficient for Eighth Amendment

violation); cf Shtilman v, Makram, 14-cv-6589 (NSR), 2018 WL 3745670 at *5, (S.D.N.Y. Aug.

6, 2018) (officer alleged to have “nearly stuck their fingers ... between [Plaintiffs] buttcheeks

[sic],” not sufficient to establish an Eighth Amendment claim),

In the present matter, Plaintiff alleges that he was subjected to a single incident of a poke to

“the groin (penis).” (ECF No. 2). Accepting Plaintiff’s version of the facts as true, these

allegations fail to rise to the level of a constitutional violation to support a Section 1983 claim.

See Boddie, infra, Crawford, infra. Plaintiff also failed to allege sufficient facts concerning the

severity of the poke. The allegations fail to identify any physical injury. The Complaint is simply

devoid of any facts which would contextualize the poke to such a degree that it would support a

finding that it was an effort to “arouse or gratify the officer or humiliate the inmate.” Crawford

v, Cuomo, 796 F.3d at 257-58.

As noted by the court in Boddie, though the isolated episodes of alleged touching may be

unsavory, “they do not involve a harm of federal constitutional proportions as defined by the

Supreme Court.” See Montero v. Crusie, 153 F.Supp.2d 368, 373, 375 (S.D.N.Y. 2001)

(allegation that correctional officer squeezed inmate’s genitalia while pat-frisking him not

sufficient to sustain an Eighth Amendment claim, especially where no allegation of injury);

Harry v. Suarez, 2012 WL 2053533, at *3 (S.D.N.Y., June 4, 2012) (allegations that corrections

officer groped plaintiffs genitals, buttocks, and inner thighs for up to 53 seconds during frisk

insufficient to sustain Eighth Amendment claim); Williams v. Keane, 1997 WL 527677, *9-11

(S.D.N.Y., Aug. 25, 1997) (dismissing the Eighth Amendment claim as insufficient where

defendant put his hand down plaintiffs pants and fondled plaintiff's testicles).

Plaintiff's allegation of minimal contact by Defendant Piper is an example of a single

incident which is not “sufficiently severe or serious,” and does not objectively violate the

Constitution. See Crawford v, Cuomo, 796 F.3d 252, 257-58 (2d Cir. 2015) (finding objective

prong satisfied where officer was alleged to have “fondl[ed] and squeeze[ed] [the inmate’ s]

penis,” “roamed” the inmate’s thigh, to “make sure [he] did not have an erection”).

While the subjective prong, requires an assessment of “whether the contact is incidental to

legitimate official duties, such as justifiable pat frisk or strip search, or by contrast whether it is

undertaken to arouse or gratify the officer or humiliate the inmate,” the analysis must take place

in the context of Plaintiff’s status as a pretrial detainee. Crawford v. Cuomo, 796 at 257-58; see

also Darnell y, Pineiro, 849 F.3d 17, 35 (2d Cir. 2017) (Plaintiffs claims as pretrial detainee are

“governed by the Due Process Clause of the Fourteenth Amendment, rather than ... the Eighth

Amendment”). As a pretrial detainee, Plaintiff need only establish that his detention conditions

were “‘sufficiently serious to constitute objective deprivations of the right to due process’ and

that the officer acted intentionally or with at least deliberate indifference to the challenged

conditions,’ Noonan y. New York City Police Department Officer Carlos Becker, 14-cv-4084

(LTS) (ILC), 2017 WL 3638201 at *4 (S.D.N.Y. Aug. 23, 2017), quoting Darnell v. Pineiro,

849 F.3d at 29, 35.

Under the subjective prong, the Plaintiff must allege that Defendant Piper’s poke to the groin

was “sufficiently serious to constitute objective deprivations of the right to due process’ and

that the officer acted intentionally or with at least deliberate indifference to the challenged

conditions.” /d. quoting Darnell v. Pineiro, 849 F.3d at 29, 35. While “where no legitimate law

enforcement or penological purpose can be inferred from the defendant’s alleged conduct, the

abuse itself may, in some circumstances be sufficient evidence of a culpable state of mind,”

Boddie, supra, 861, “the principal inquiry is whether the contact is incidental to legitimate

official duties, such as justifiable pat frisk or strip search, or by contrast whether it is undertaken

to arouse or gratify the officer or humiliate the inmate.” Crawford v. Cuomo, supra, at 257-58;

Shtilman v. Makram, 14-cv-6589 (NSR), 2018 WL 3745670 at *5, (S.D.N.Y. Aug. 6, 2018)

(officer alleged to have “nearly stuck their fingers ... between [Plaintiff's] buttcheeks [sic],” not

sufficient to establish an Eighth Amendment claim),

Plaintiff's bare allegations of a poke to the groin while he was in inside of his housing unit

fail to assert sufficient facts. The Plaintiff does not assert any injury to Plaintiff, allegations of

statement or comment by Defendant Piper, provide further description of the surrounding

circumstances, nor indicate whether he was awake or asleep just prior to the incident. Plaintiff

fails to allege sufficient objective facts of an act which is sufficiently severe and serious.

Plaintiff also fails to allege facts of Defendant Piper’s culpable state of mind as required under

the Fourteenth Amendment. See Shepherd v. Fisher, 08-cv-9297 (RA), 2017 WL 666213, at *18

(S.D.N.Y. Feb. 16, 2017) (‘squeezing and fondling of Plaintiffs genitalia, combined with the

accompanying threats of sexual violence or retaliation, would allow a reasonable factfinder to

find that the corrections officer ... intended to sexually gratify themselves, to humiliate [], or

both.””); see also Shannon v. Venettozzi, 670 Fed. Appx. at 31 (“[sexually-explicit] statements, in

conjunction with ... description of the forcefulness of ... the pat-downs were sufficient to

plausibly allege that [the officer] conducted the pat-downs” to gratify himself or humiliate the

inmate).

For the aforementioned reasons, Plaintiff?s complaint fails to state a claim of an 8"

Amendment violation.

COMPENSATORY DAMAGES

Plaintiff seeks seven hundred fifty thousand dollars ($750,000.00) in damages for the

alleged violations of his constitutional rights. However, Plaintiff failed to specifically

denominate what type of injury he sustained. Section 1997e(e) of the PLRA states that — “No

10

Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional

facility, for mental or emotional injury suffered while in custody without a prior showing of

physical injury.” Plaintiff does not allege any physical injury resulting from the claimed

deprivation of his constitutional rights — rather, he only alleges emotional harm. (ECF No. 2),

For claims seeking damages for mental or emotional damages, a defendant must “make a prior

showing of physical injury.” Jenkins v. Haubert, 179 F.3d 19, 28 (2d Cir. 1999). In this matter,

Plaintiff failed to assert sufficient facts to support a finding of a requisite harm of physical

injury.

Separately, to the extent that plaintiff ’s claim for damages includes punitive damages,

such measure of damages is not warranted. Plaintiff has not alleged any facts indicating that

defendants’ conduct was “motivated by evil motive or intent” or that defendants exhibited

“reckless or callous indifference” to his federally protected rights which is a pre-requisite to the

imposition of punitive damages. Lee v. Edwards, 101 F.3d 805, 808 (2d Cir. 1996) (quoting

Smith v. Wade, 461 U.S. 30, 56 (1983)).

QUALIFIED IMMUNITY

Qualified immunity protects government officials from liability as long as their actions

are discretionary in nature and do not violate clearly established statutory or constitutional rights

of which a reasonable person should have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982). “Qualified immunity is available ‘when the undisputed facts establish that it was

objectively reasonable for the defendants to believe that their actions did not violate clearly

established rights.” Dawkins v. Gonyea, 646 F.Supp.2d 594, 613 (S.D.N.Y. 2009), quoting

Defore v. Premore, 86 F.3d 48, 50 (2d Cir.1996). “A right is clearly established if (1) the law is

defined with reasonable clarity, (2) the Supreme Court or the Second Circuit has recognized the

11

right, and (3) a reasonable defendant [would] have understood from the existing law that [his]

conduct was unlawful.” Johnson v. Goord, 487 F. Supp.2d 377, 398 (S.D.N.Y. 2007), aff'd 305

Fed. Appx. 815 (2d Cir. 2009) (internal quotations and citations omitted). The Supreme Court

has urged courts to decide the issue of qualified immunity at the earliest possible opportunity,

See Saucier v. Katz, 533 U.S. 194, 200 (2001), overruled on other grounds, Pearson v. Callahan,

555 U.S. 223 (2009). “[T]he question to be answered is whether the defendant officer,

confronted with the facts as alleged by the plaintiff, could reasonably have believed that his

actions did not violate some settled constitutional right.” 5 Borough Pawn, LLC v. City of New

York, 640 F.Supp.2d 268, 285 (S.D.N.Y. 2009); accord Dawkins, supra, at 613.

The facts as alleged are insufficient to establish a constitutional or statutory violation on the

part of Defendant Piper. It was objectively reasonable for a correctional officer to believe that

his actions were lawful, if true, under the circumstances. No facts were alleged as to the conduct

by Defendant DuBois. Therefore, Defendants is entitled to qualified immunity, and the operative

Complaint is dismissed against Defendants Piper under Rule 12(b)6.

CONCLUSION

For the aforementioned reasons, Defendants’ motion to dismiss the Complaint is granted in

its entirety. The Clerk of the Court is respectfully directed to terminate the motion at ECF No.

19, to close the case, to mail a copy of this Opinion and Order to Plaintiff’s last known address

and to show proof on the docket.

Dated: November 26 2019 SO ORDERED

White Plains, New York ee oN

NELSON S. ROMAN

12