# Rivera v. Annucci

> District Court, S.D. New York · June 11, 2021

URL: https://www.frixlaw.com/law-library/cases/10332755

## Case

- **Court:** District Court, S.D. New York
- **Decided:** June 11, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10332755

## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ALBERT RIVERA,
Plaintiff, MEMORANDUM OPINION
AND ORDER
-against-
19-CV-10425 (PMH)
MARK ROYCE, SUPT. OF GREEN HAVEN
CORR. FACILITY, et al.,

Defendants.
PHILIP M. HALPERN, United States District Judge:
Plaintiff Albert Rivera (“Plaintiff”), proceeding pro se and in forma pauperis, brings this
action under 42 U.S.C. § 1983 against Superintendent Mark Royce (“Royce”), Deputy
Superintendent of Security Anthony Russo (“Russo”), Captain Norton (“Norton”), Correction
Officer Tracy Ott (“Ott”), and Correction Officer Jhandry Zevallos (“Zevallos,” and collectively,
“Defendants”) for violating his constitutional rights while he was incarcerated at Green Haven
Correctional Facility (“Green Haven”) in Stormville, New York. (See generally Doc. 38, “SAC”).
Specifically, Plaintiff alleges that Defendants violated his Eighth and Fourteenth Amendment1
rights, along with rights secured by the New York State Constitution, by failing to protect him
from an attack by another inmate and, thereafter, placing him in Involuntary Protective Custody
(“IPC”) for approximately 142 days. (See generally, id.).

1 Plaintiff’s conditions of confinement claims are governed by the Eighth Amendment because he is a
convicted prisoner. First, Plaintiff pled affirmatively that he was a “state prisoner” incarcerated at Green
Haven. (SAC ¶¶ 1, 6). Second, the documents annexed to the SAC provide Plaintiff’s Department
Identification Number or “DIN.” (E.g., id. at pp. 12-13 (“SAC Ex. A”)). Searching Plaintiff’s DIN (16-A-
4080) on the New York State Department of Corrections and Community Supervision (“DOCCS”) inmate
lookup website, Plaintiff was convicted of Manslaughter in the First Degree, was received by DOCCS in
October 2016, and is currently serving a sentence with an aggregate maximum of fifteen years.
See Simmonds v. Family Dollar Store, No. 18-CV-1241, 2018 WL 5447046, at *1 n.1 (E.D.N.Y. Oct. 25,
2018) (“The Court may take judicial notice of Plaintiff's DOCCS inmate lookup information.”); Jackson v.
Sullivan Cty., No. 16-CV-3673, 2018 WL 1582506, at *5 n.8 (S.D.N.Y. Mar. 27, 2018).
Defendants filed a motion to dismiss the SAC, the operative pleading, on December 28,
2020. (Doc. 43; Doc. 44 “Def. Br.”). Plaintiff did not file his opposition; rather, Plaintiff mailed
his opposition to Defendants’ counsel who, thereafter, filed it with the Court on February 17, 2021
as an attachment to a letter. (Doc. 50-1, “Opp.”). The motion was briefed fully with the filing of
Defendants’ reply memorandum of law in further support of their motion to dismiss on March 15,

2021. (Doc. 52, “Reply Br.”).
For the reasons set forth below, Defendants’ motion to dismiss is GRANTED.
BACKGROUND
Plaintiff alleges that at 6:40 p.m. on October 11, 2019, while incarcerated at Green Haven,
he was assaulted in the recreation yard by a then-unknown inmate wielding an unidentified
weapon. (SAC ¶ 13). As Plaintiff tried to protect himself, he heard unidentified officers yell, “Stop
fighting[!]” (Id. ¶ 17). Plaintiff disengaged from the fight and walked toward two officers—Ott
and Zevallos—“for protection.” (Id.). Upon reaching the officers, Ott told Zevallos to “restrain”
Plaintiff; Ott, in turn, tried to restrain the assailant. (Id. ¶ 18). Zevallos did not restrain Plaintiff
physically, but, rather, stood beside him. (Id. ¶ 19). Ott, in a similar fashion, simply instructed the

attacker to put his hands in his pockets as she walked him away. (Id.). Of note, Plaintiff alleges
that Ott walked behind the other inmate. (Id.).
It was at this juncture that the attacker revealed a weapon—presumably the same weapon
used during the initial encounter—lunged at Plaintiff, and yelled, “I’m gonna kill you[!]” (Id. ¶
22). Although Zevallos unholstered his pepper spray, he did not discharge it. (Id. ¶ 21). Plaintiff
claims that, as his attacker charged, both Zevallos and Ott “jump[ed] out of the way, allowing the
inmate assailant to stab and cut [him] three (3) times.” (Id. ¶ 23). At this point, “an alarm sounded
. . . [and a] response team” was “dispatched to the yard.” (Id. ¶ 24). Plaintiff insists that neither
Zevallos nor Ott tried to intervene in the second attack. (Id.). After “the response team arrived,”
Plaintiff was taken immediately to the infirmary for treatment. (Id. ¶ 25).
The next day, October 12, 2019, Plaintiff was charged with four violations (fighting,
refusing a direct order, creating a disturbance, and violent conduct). (Id. ¶ 26; SAC Ex. A). A
hearing on these violations began on October 15, 2019, was adjourned, and then concluded on

October 21, 2019. (Id. ¶ 27; id. at pp. 14-15 (“SAC Ex. B”)). While that hearing was pending, on
October 18, 2019, Norton approved a recommendation that Plaintiff be placed in IPC. (Id. ¶ 28;
id. at pp. 18-19 (“SAC Ex. D”)). On October 21, 2019, Plaintiff was adjudicated not guilty as to
each violation and “immediately transferred to” IPC. (Id. ¶ 27). A hearing regarding Plaintiff’s
IPC placement was thereafter held on October 25, 2019, and the placement was confirmed. (Id. ¶
29; id. at pp. 16-17 (“SAC Ex. C”)).
The IPC placement was reviewed on February 12, 2020. (Id. ¶ 30; id. at pp. 20-21 (“SAC
Ex. E”)). According to that review, Plaintiff was held in IPC because he was “assaulted by
inmates,” had been “uncooperative with investigation,” and his continued placement in IPC was

necessary to protect him from unknown attackers. (SAC Ex. E). Plaintiff insists that officials knew
who attacked him and, in fact, paperwork attached to the SAC identifies his attacker. (Id. ¶ 30; see
also SAC Ex. A; SAC Ex. D). Despite the IPC placement review’s recommendation that Plaintiff
remain in IPC “until other suitable housing can be found,” Plaintiff was released into the general
population on March 11, 2020. (Id. ¶ 31; see also SAC Ex. D). This suit followed.
STANDARD OF REVIEW
I. Federal Rule of Civil Procedure 12(b)(1)
“Federal courts are courts of limited jurisdiction, and Rule 12(b)(1) requires dismissal of
an action ‘when the district court lacks the statutory or constitutional power to adjudicate
it.’” Schwartz v. Hitrons Sols., Inc., 397 F. Supp. 3d 357, 364 (S.D.N.Y. 2019) (quoting Makarova
v. United States, 201 F.3d 110, 113 (2d Cir. 2000)). “The party invoking the Court’s jurisdiction
bears the burden of establishing jurisdiction exists.” Hettler v. Entergy Enters., Inc., 15 F. Supp.
3d 447, 450 (S.D.N.Y. 2014) (citing Conyers v. Rossides, 558 F.3d 137, 143 (2d Cir. 2009)). When
deciding a motion to dismiss under Rule 12(b)(1) at the pleadings stage, “the Court ‘must accept

as true all material facts alleged in the complaint and draw all reasonable inferences in the
plaintiff’s favor.’” Id. (quoting Conyers, 558 F.3d at 143); see also Doe v. Trump Corp., 385 F.
Supp. 3d 265, 274 (S.D.N.Y. 2019).
When “the defendant moves for dismissal under Rule 12(b)(1) . . . as well as on other
grounds, the court should consider the Rule 12(b)(1) challenge first since if it must dismiss the
complaint for lack of subject matter jurisdiction, the accompanying defenses and objections
become moot and do not need to be determined.” Saint-Amour v. Richmond Org., Inc., 388 F.
Supp. 3d 277, 286 (S.D.N.Y. 2019) (quoting United States v. New York City Dep’t of Hous., Pres.
& Dev., No. 09-CV-6547, 2012 WL 4017338, at *3 (S.D.N.Y. Sept. 10, 2012)).

II. Federal Rule of Civil Procedure 12(b)(6)
A Rule 12(b)(6) motion enables a court to dismiss a complaint for “failure to state a claim
upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “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 Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible on its face “when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). “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. (citing Twombly, 550 U.S. at 556). The factual allegations pled “must
be enough to raise a right to relief above the speculative level . . . .” Twombly, 550 U.S. at 555.
“When there are well-ple[d] factual allegations, a court should assume their veracity and
then determine whether they plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S. at 679.
Thus, the Court must “take all well-ple[d] factual allegations as true, and all reasonable inferences

are drawn and viewed in a light most favorable to the plaintiff[].” Leeds v. Meltz, 85 F.3d 51, 53
(2d Cir. 1996). The presumption of truth, however, “‘is inapplicable to legal conclusions,’ and
‘[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.’” Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (quoting Iqbal, 556
U.S. at 678 (alteration in original)). Therefore, a plaintiff must provide “more than labels and
conclusions” to show entitlement to relief. Twombly, 550 U.S. at 555.
A complaint submitted by a pro se plaintiff, “however inartfully ple[d], must be held to
less stringent standards than formal pleadings drafted by lawyers . . . .” Estelle v. Gamble, 429
U.S. 97, 106 (1976) (internal quotation marks omitted). Because pro se plaintiffs “‘are often

unfamiliar with the formalities of pleading requirements,’ courts must ‘apply a more flexible
standard in determining the sufficiency of a pro se [complaint] than they would in reviewing a
pleading submitted by counsel.’” Smith v. U.S. Dep’t of Just., 218 F. Supp. 2d 357, 361 (W.D.N.Y.
2002) (quoting Platsky v. Cent. Intell. Agency, 953 F.2d 26, 28 (2d Cir. 1991)). However, while
“[p]ro se complaints are held to less stringent standards than those drafted by lawyers, even
following Twombly and Iqbal,” dismissal is proper “where a plaintiff has clearly failed to meet
minimum pleading requirements.” Thomas v. Westchester Cty., No. 12-CV-6718, 2013 WL
3357171, at *2 (S.D.N.Y. July 3, 2013) (internal citations omitted); see also Chavis v. Chappius,
618 F.3d 162, 170 (2d Cir. 2010) (“Even in a pro se case . . . although a court must accept as true
all of the allegations contained in a complaint, that tenet is inapplicable to legal conclusions, and
threadbare recitals of the elements of a cause of action, supported by mere conclusory statements,
do not suffice.” (internal quotation marks omitted)). Therefore, while the Court must “draw the
most favorable inferences that [a plaintiff’s] complaint supports, [it] cannot invent factual
allegations that [a plaintiff] has not pled.” Chappius, 618 F.3d at 170. Yet, the Court has also a

duty to interpret “the pleadings of a pro se plaintiff liberally and interpret them ‘to raise the
strongest arguments that they suggest.’” McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999)
(quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)).
On a Rule 12(b)(6) motion, “the Court is entitled to consider facts alleged in the complaint
and documents attached to it or incorporated in it by reference, documents ‘integral’ to the
complaint and relied upon in it, and facts of which judicial notice may properly be taken under
Rule 201 of the Federal Rules of Evidence.” Heckman v. Town of Hempstead, 568 F. App’x 41,
43 (2d Cir. 2014); see also Manley v. Utzinger, No. 10-CV-2210, 2011 WL 2947008, at *1 n.1
(S.D.N.Y. July 21, 2011) (“The Court may consider . . . documents incorporated into the complaint

by reference, and documents possessed by or known to the plaintiff and upon which plaintiff relied
in bringing the suit.”). Still, “[w]here an extrinsic document is not incorporated by reference, the
district court may nevertheless consider it if the complaint relies heavily upon its terms and effect,
which renders the document integral to the complaint.” Schafer v. Direct Energy Servs., LLC, 845
F. App’x 81, 82 (2d Cir. 2021) (internal quotation marks omitted).
ANALYSIS
I. Rule 12(b)(1): Lack of Subject-Matter Jurisdiction
The Court, as guided by precedent, turns first to Defendants’ arguments regarding the lack
of subject-matter jurisdiction and dismissal required under Rule 12(b)(1).
A. New York Correction Law § 24
Plaintiff “alleg[es] violations under Article I, § 5 of the New York State Constitution
prohibiting Cruel and Unusual Punishment and treatment, a constitutional tort . . . .” (SAC ¶ 2).
New York Correction Law § 24 provides, in pertinent part, as follows:
1. No civil action shall be brought in any court of the state, except
by the attorney general on behalf of the state, against any officer
or employee of the department, which for purposes of this
section shall include members of the state board of parole, in his
or her personal capacity, for damages arising out of any act done
or the failure to perform any act within the scope of the
employment and in the discharge of the duties by such officer or
employee.

2. Any claim for damages arising out of any act done or the failure
to perform any act within the scope of the employment and in
the discharge of the duties of any officer or employee of the
department shall be brought and maintained in the court of
claims as a claim against the state.

N.Y. Corr. Law §§ 24(1)-(2).
“The Second Circuit has held that this provision prevents federal courts from exercising
pendent jurisdiction over state law claims appended to federal claims brought pursuant to 42
U.S.C. § 1983.” Sughrim v. New York, No. 19-CV-7977, 2020 WL 7047697, at *21 (S.D.N.Y.
Nov. 30, 2020) (quoting Hassell v. Fischer, 96 F. Supp. 3d 370, 385 (S.D.N.Y. 2015)); see also
Brown v. Griffin, No. 18-CV-5439, 2019 WL 4688641, at *8 (S.D.N.Y. Sept. 25, 2019)
(dismissing claims for alleged violations of the New York State Constitution); Davis v. McCready,
283 F. Supp. 3d 108, 124 (S.D.N.Y. 2017) (“[U]nder Section 24, any tort claim arising under New
York law . . . must be dismissed for lack of subject matter jurisdiction.”); Cruz v. New York, 24 F.
Supp. 3d 299, 309 (W.D.N.Y. 2014) (“Plaintiff’s state law claims against Defendants . . . are barred
because New York Correction Law § 24 shields them from liability for state law claims in both
state and federal court.”).
On the facts here, Plaintiff does not suggest that Defendants acted outside the scope of their
employment. (See generally SAC); see also Cruz, 24 F. Supp. 3d at 310 (explaining that “[t]he test
to determine whether the defendants’ actions fall within the scope of their employment is whether
the act was done while the servant was doing the master’s work no matter how irregularly, or with
what disregard of instructions” (internal quotation marks omitted)). Accordingly, because any state

law claims against Defendants “would be barred in New York state courts, this Court equally lacks
jurisdiction over the claims.” Hassell, 96 F. Supp. 3d at 385. Plaintiff’s claims under New York
State law are, accordingly, dismissed.
B. Eleventh Amendment
Insofar as Plaintiff seeks relief under 42 U.S.C. § 1983, the Eleventh Amendment provides,
“The Judicial power of the United States shall not be construed to extend to any suit in law or
equity, commenced or prosecuted against one of the United States by Citizens of another State, or
by Citizens or Subjects of any Foreign State.” U.S. Const. amend. XI. This language bars suits,
even those arising under federal law, against a state by one of its own citizens. Woods v. Rondout

Valley Centr. Sch. Dist. Bd. of Educ., 466 F.3d 232, 236 (2d Cir. 2006) (citing Hans v. Louisiana,
134 U.S. 1, 15 (1890)). “[A]s a general rule, state governments may not be sued in federal court
unless they have waived their Eleventh Amendment immunity, or unless Congress has abrogated
the states’ Eleventh Amendment immunity when acting pursuant to its authority under Section 5
of the Fourteenth Amendment.” Nelkenbaum v. Jordy, No. 19-CV-7953, 2020 WL 7630354, at *2
(S.D.N.Y. Dec. 22, 2020) (quoting Gollomp v. Spitzer, 568 F.3d 355, 366 (2d Cir. 2009) (alteration
in original)). To that point, it is well settled that “New York has not waived its sovereign immunity
in § 1983 lawsuits, nor has Congress abrogated the State’s immunity.” Phillips v. New York, No.
13-CV-927, 2013 WL 5703629, at *3 (N.D.N.Y. Oct. 17, 2013) (citing Vincent v. Yelich, 718 F.3d
157, 177 (2d Cir. 2013)); see also Keitt v. New York City, 882 F. Supp. 2d 412, 424 (S.D.N.Y.
2011) (“Magistrate Judge Freeman properly concluded that Keitt’s Section 1983, 1985, and 1986
claims against the State of New York and its agencies are barred by the [Eleventh] Amendment.”).
Consequently, because the Eleventh Amendment deprives this Court of subject-matter
jurisdiction and neither exception applies, the claims for relief under 42 U.S.C. § 1983 are

dismissed under Rule 12(b)(1) to the extent they seek relief against Defendants in their official
capacities. This result does not affect the 42 U.S.C. § 1983 claims against Defendants in their
individual capacities. The Court therefore considers Defendants’ arguments for dismissal of those
claims for relief under Rule 12(b)(6).
II. Rule 12(b)(6): Failure to State a Claim Upon Which Relief Can Be Granted
A. Failure to Exhaust Administrative Remedies
The Prison Litigation Reform Act (“PLRA”) provides that “[n]o action shall be brought
with respect to prison conditions under section 1983 of this title, or any other Federal law, by a
prisoner confined in any jail, prison, or other correctional facility until such administrative

remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). This provision “applies to all
inmate suits about prison life, whether they involve general circumstances or particular
episodes,” Hernández v. Coffey, 582 F.3d 303, 305 (2d Cir. 2009) (quoting Porter v. Nussle, 534
U.S. 516, 532 (2002)), and it is “‘mandatory’: [a]n inmate ‘shall’ bring ‘no action’ (or said more
conversationally, may not bring any action) absent exhaustion of available administrative
remedies.” Ross v. Blake, 136 S.Ct. 1850, 1856 (2016) (citation omitted). “Moreover, the PLRA
‘requires proper exhaustion, which means using all steps that the prison grievance system holds
out.’” Ayala-Rosario v. Westchester Cty., No. 19-CV-3052, 2020 WL 3618190, at *4 (S.D.N.Y.
July 2, 2020) (quoting Williams v. Priatno, 829 F.3d 118, 122 (2d Cir. 2016)). This “means that
‘prisoners must complete the administrative review process in accordance with the applicable
procedural rules—rules that are defined not by the PLRA, but by the prison grievance process
itself.’” Gottesfeld v. Anderson, No. 18-CV-10836, 2020 WL 1082590, at *6 (S.D.N.Y. Mar. 6,
2020) (quoting Johnson v. Killian, 680 F.3d 234, 238 (2d Cir. 2012)). Compliance with the PLRA
“is an affirmative defense, not a pleading requirement, and therefore a motion to dismiss for failure

to exhaust may only be granted if it is clear from the face of the complaint that the plaintiff failed
to exhaust” his administrative remedies. See Gunn v. Beschler, No. 16-CV-6206, 2020 WL
7398751, at *4 (W.D.N.Y. Dec. 17, 2020). Such clarity exists here with respect to Plaintiff’s
Eighth Amendment claims.2
Generally, as an inmate in DOCCS’ custody, Plaintiff was required to follow a three-step
process to exhaust the grievance process completely. See generally Amador v. Andrews, 655 F.3d
89, 96-97 (2d Cir. 2011) (outlining DOCCS’ three-step grievance process). First, a grievance must
be submitted to the Inmate Grievance Resolution Committee (“IGRC”), a facility-level body
consisting of inmates and facility staff members. N.Y. Comp. Codes R. & Regs. tit. 7, §§ 701.4,

2 Defendants, in support of their motion on this issue, submit three declarations with exhibits to establish
that Plaintiff did not exhaust his administrative remedies: (1) two from Laura A. Stanaway, the Inmate
Grievance Program (“IGP”) Supervisor at Green Haven; and (2) one from Rachael Seguin, Assistant
Director of the IGP and custodian of records maintained by the Central Office Review Committee
(“CORC”). (See Doc. 44-1; Doc. 44-2; Doc. 52-1). These submissions were provided to the Court to
establish Defendants’ entitlement to the affirmative defense offered by the PLRA and substantiate the fact
that Plaintiff did not file any grievances about the issues raised in the SAC. However, Plaintiff pled
affirmatively: “As the issues herein do not involve claims that can be pursued through the inmate grievance
system, no grievances were filed.” (SAC ¶ 12). No clearer statement could be made about Plaintiff’s
decision to forego the grievance process; as such, even if the Court assumes that the documents may be
considered properly at this juncture, they are simply unnecessary. Plaintiff likewise submitted five
documents as attachments to his opposition brief. (See Opp. at 7-42). Given the liberality afforded pro se
litigants, “in deciding a motion to dismiss a pro se complaint, it is appropriate to consider materials outside
the complaint to the extent that they are consistent with the allegations in the complaint, including
documents that a pro se litigant attaches to his opposition papers.” Davis v. Cty. of Suffolk, No. 18-CV-303,
2020 WL 7699919, at *4 (E.D.N.Y. Oct. 30, 2020) (internal citations and quotation marks
omitted), adopted by 2020 WL 7041082 (E.D.N.Y. Dec. 1, 2020). Of those five documents, only one—
DOCCS Directive No. 4040—is arguably consistent with the allegations in the SAC, so the Court may
consider it. The Court declines, however, to consider the four remaining documents. See discussion infra.
701.5(a)-(b). Second, should the inmate be dissatisfied with the conclusion reached by the IGRC,
he may appeal that decision to the superintendent of the facility within seven calendar days of
receiving the IGRC’s determination. Id. § 701.5(c)(1). Finally, if the superintendent’s conclusions
are unfavorable, the inmate may appeal that decision to CORC within seven calendar days of
receiving the superintendent’s determination. Id. § 701.5(d)(1)(i). Both Green Haven’s

Superintendent and CORC are required to “date stamp all” grievances or appeals forwarded to
them for review, id. §§ 701.5(c)(3), 701.5(d)(3)(i), and maintain files “for the current calendar year
plus the previous four calendar years,” id. § 701.6(k)(3).3
Plaintiff pled affirmatively in the SAC—a pleading with a signature line below a statement
representing that the allegations were made “under [p]enalty of [p]erjury”—that he did not file a
grievance concerning the claims pressed in the SAC because they were not grievable. (SAC ¶ 12,
p. 11). Plaintiff’s position that his Eighth Amendment claims could not be grieved is unavailing;
indeed, the applicable regulations define “grievance” in pertinent part as:
a complaint, filed with an IGP clerk, about the substance or
application of any written or unwritten policy, regulation, procedure
or rule of the Department of Correctional Services or any of its
program units, or the lack of a policy, regulation, procedure or rule.

3 This procedure is not the same as that governing disciplinary hearings because there is “a separate and
distinct administrative process for inmates to appeal the result of disciplinary hearings, which is not referred
to as a ‘grievance’ process.” Morris v. Rabsatt, No. 10-CV-0041, 2010 WL 4668440, at *3 (N.D.N.Y. Oct.
18, 2010), adopted by, 2010 WL 4668328 (N.D.N.Y. Nov. 9, 2010); see also Ortiz v. McBride, 380 F.3d
649, 653-54 (2d Cir. 2004) (concluding that the plaintiff exhausted his administrative remedies with respect
to his Fourteenth Amendment, but not his Eighth Amendment, claim); Lev v. Thoms, No. 19-CV-01387,
2019 WL 7067045, at *4 (N.D.N.Y. Dec. 23, 2019) (“Plaintiff must follow the grievance process for his
prison condition claims and the administrative appeal procedure for his Fourteenth Amendment Due
Process Clause claims.” (internal quotation marks omitted)); N.Y. Comp. Codes R. & Regs. tit. 7, §§
701.3(2) (“[A]n individual decision or disposition resulting from a disciplinary proceeding . . . is not
grievable.”). As the Court cannot conclude that Plaintiff did not exhaust the appellate process with respect
to his Fourteenth Amendment claim from the face of the SAC—and Defendants do not address this issue—
that claim is not dismissed for failure to exhaust administrative remedies. That claim is, however, dismissed
for failure to state a claim. See discussion infra.
N.Y. Comp. Codes R. & Regs. tit. 7, § 701.2(a). Moreover, precedent bears out that the issues
underlying Plaintiff’s Eighth Amendment claims are grievable and must be exhausted
administratively before filing an action. See, e.g., Ortiz, 380 F.3d 649, 653-54; Lurch v. Bui, No. 19-
CV-895, 2020 WL 8450543, at *4 (N.D.N.Y. Dec. 8, 2020), adopted sub nom. Lurch v. Jones,
2021 WL 392486 (N.D.N.Y. Feb. 4, 2021); cf. N.Y. Comp. Codes R. & Regs. tit. 7, § 701.3(e)

(outlining three categories of non-grievable issues).
Separate and apart from Plaintiff’s representation that he did not file any grievances
concerning his claims—which renders the affirmative defense clear on the face of the SAC—the
timeline provides a separate, independent basis to conclude that Plaintiff failed to exhaust his
administrative remedies before bringing this action. The attack occurred on October 11, 2019 and
Plaintiff signed his initial Complaint sixteen days later, on October 27, 2019. (See Doc. 2). This
timing precludes the possibility that Plaintiff could have exhausted his administrative remedies
before filing this action; as a matter of fact and law, it simply would not have been possible for
Plaintiff to do so. See, e.g., Lopez v. Cipolini, 136 F. Supp. 3d 570, 582 (S.D.N.Y. 2015) (“In light

of this procedure and based on the facts alleged in the Amended Complaint, it is implausible that
Plaintiff was able to exhaust her administrative remedies within 10 days.”); Price v. City of New
York, No. 11-CV-6170, 2012 WL 3798227, at *3 (S.D.N.Y. Aug. 30, 2012) (dismissing an inmate
action on a Rule 12(b)(6) motion and concluding that “given the timelines for the grievance
procedures outlined in the DOC’s regulations, it would have been impossible for [the plaintiff] to
do so in the 21 days between the alleged incident and the filing of his complaint”).
Plaintiff, in an effort to back away from his sworn representation and rewrite the SAC,
argued that he tried to file grievances but was stymied by various factors and, in fact, annexed
copies of documents he claims are the grievances he tried to file. (See Opp. at 3-4, 8-9, 39-40,
43). As a primary issue, the Court need not and does not credit these fresh allegations because they
contradict Plaintiff’s claim that he did not file a grievance because his complaints were not
grievable. See, e.g., Rivera v. Doe, No. 16-CV-8809, 2018 WL 1449538, at *5 (S.D.N.Y. Feb. 26,
2018) (“The liberality with which courts examine pro se pleadings does not require a court to
accept as true allegations that conflict with . . . prior allegations.” (internal quotation marks

omitted)), adopted by 2018 WL 1441386 (S.D.N.Y. Mar. 22, 2018); Vasquez v. Reilly, No. 15-
CV-9528, 2017 WL 946306, at *3 (S.D.N.Y. Mar. 9, 2017); Green v. Niles, No. 11-CV-1349,
2012 WL 987473, at *5 (S.D.N.Y. Mar. 23, 2012). Even if that were not the case, the documents
Plaintiff submitted—were the Court to consider them—would only bolster the Court’s conclusion
that Plaintiff did not exhaust his administrative remedies before filing this action. The documents
include: (1) a grievance addressed to “Grievance,” dated October 17, 2019 (Opp. at 8-9); (2) a
grievance addressed to Royce, Russo, and “Grievance Officer,” dated October 17, 2019 (id. at 39-
40); (3) a letter addressed to “IGP Supervisor,” dated October 28, 2019—that is, the day after
signing the initial Complaint—asking about the status of his October 17, 2019 grievance (id. at

11); and (4) a letter addressed to CORC, dated December 19, 2019, asking how he could “get [his]
Grievance decided” or, in the alternative, that the letter be construed “as [his] appeal” (id. at 42).
These documents reveal that Plaintiff knew he had not exhausted his administrative remedies
before initiating this action and reduce further the time within which Plaintiff had to complete the
administrative process, thereby making less plausible Plaintiff’s complaint (assuming the Court
considered Plaintiff’s belated and inconsistent thoughts and arguments).
In light of the foregoing, the affirmative defense of failing to comply with the PLRA is
clear from the face of the SAC with respect to Plaintiff’s Eighth Amendment claims for relief.
These claims (i.e., failure to protect and IPC placement) are, consequently, dismissed.
B. Failure to State a Claim Upon Which Relief Can Be Granted
Even if the Court determined that Plaintiff’s Eighth Amendment claims for relief could not
be dismissed for failure to comply with the PLRA, both those claims and his claim under the
Fourteenth Amendment, must be dismissed for failing to state a claim upon which relief can be
granted. Turning to the substantive issues under Rule 12(b)(6), Plaintiff seeks relief under 42

U.S.C. § 1983. That law provides, in pertinent part, that “[e]very person who, under color of any
statute . . . 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. “[T]his language does not create substantive rights; rather,
it creates a mechanism by which individuals can vindicate the violation of rights secured
elsewhere.” Santucci v. Levine, No. 17-CV-10204, 2021 WL 76337, at *3 (S.D.N.Y. Jan. 8, 2021).
“As such, in each permutation of a claim under that law, a plaintiff must demonstrate: (1) a right
secured by the Constitution or laws of the United States was violated, and (2) the right was violated
by a person acting under color of state law, or a state actor.” Williams v. Novoa, No. 19-CV-11545,

2021 WL 431445, at *5 (S.D.N.Y. Feb. 5, 2021) (internal quotation marks omitted).
Defendants advance a variety of arguments as to why Plaintiff's claims for relief should be
dismissed. The Court addresses these arguments seriatim.
1. Failure to Plead Failure to Protect Claims (Eighth Amendment)
Plaintiff’s first claim under the Eighth Amendment alleges that Ott and Zevallos failed to
protect him in the recreation yard. The Eighth Amendment instructs that “[e]xcessive bail shall not
be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted,” U.S.
Const. amend. VIII, and the Supreme Court has explained that the Eighth Amendment requires
that prison officials “provide humane conditions of confinement,” which includes making sure
“that inmates receive adequate food, clothing, shelter, and medical care . . . .” Farmer v. Brennan,
511 U.S. 825, 832 (1994). Accordingly, prison officials must, inter alia, “take reasonable measures
to guarantee the safety of inmates in their custody.” Rennalls v. Alfredo, No. 12-CV-5300, 2015
WL 5730332, at *3 (S.D.N.Y. Sept. 30, 2015) (quoting Hayes v. New York City Dep’t of Corr., 84
F.3d 614, 620 (2d Cir. 1996)); see also Rembert v. Cheverko, No. 12-CV-9196, 2014 WL 3384629,

at *5 (S.D.N.Y. July 10, 2014) (quoting Farmer, 511 U.S. at 832-33); Randle v. Alexander, 960 F.
Supp. 2d 457, 471 (S.D.N.Y. 2013). However, while prison officials have a duty to protect
prisoners from violence at the hands of other inmates, “not . . . every injury suffered by one
prisoner at the hands of another . . . translates into constitutional liability for prison officials
responsible for the victim's safety.” Fair v. Weiburg, No. 02-CV-9218, 2006 WL 2801999, at *4
(S.D.N.Y. Sept. 28, 2006) (quoting Farmer, 511 U.S. at 834).
For Plaintiff to state a claim against Ott or Zevallos for failing to protect him from another
inmate, he must plead facts supporting two separate prongs to show that they acted with “deliberate
indifference.” Edwards v. Black, No. 20-1677, 2021 WL 1748478, at *1 (2d Cir. May 4, 2021).

The first prong, the “objective prong,” requires facts establishing that Plaintiff was “incarcerated
under conditions posing a substantial risk of serious harm.” Morgan v. Dzurenda, 956 F.3d 84, 89
(2d Cir. 2020) (internal quotation marks omitted). In a failure to protect case, “[a] plaintiff may
show a substantial risk of harm from either a specific assailant or a more general risk of harm due
to the conditions at the time of the attack, such as where a substantial risk of inmate attacks was
longstanding, pervasive, [or] well-documented.” Dietrich v. Cty. of Orange, No. 19-CV-10485,
2020 WL 5209816, at *3 (S.D.N.Y. Sept. 1, 2020) (alterations in original, internal citations and
quotation marks omitted). The second prong, the “subjective prong,” requires action “with a
sufficiently culpable state of mind.” Morgan, 956 F.3d at 89 (internal quotation marks omitted).
“[A] prison official has sufficient culpable intent if he has knowledge that an inmate faces a
substantial risk of serious harm and he disregards that risk by failing to take reasonable measures
to abate the harm.” Rennalls, 2015 WL 5730332, at *3 (internal quotation marks omitted).
Even if the Court assumes that Plaintiff pled facts establishing plausibly that he was
incarcerated under conditions posing a substantial risk of serious harm—which he has not done—

the claims against Ott and Zevallos would still be dismissed because Plaintiff was the victim of a
surprise attack. It is well-established that prison officials cannot be deliberately indifferent to a
surprise attack. See, e.g., Carrasco v. Annucci, No. 17-CV-9643, 2020 WL 5038561, at *3
(S.D.N.Y. Aug. 26, 2020) (“Courts routinely deny deliberate indifference claims based upon
surprise attacks.” (internal quotation marks omitted)); Rennalls, 2015 WL 5730332, at *4; Parris
v. New York State Dep’t of Corr. Servs., 947 F. Supp. 2d 354, 363 (S.D.N.Y. 2013); see also
Charles v. Rockland Cty. Off. of the Sheriff, No. 16-CV-166, 2019 WL 1299804, at *3 (S.D.N.Y.
Mar. 21, 2019) (granting summary judgment on a Fourteenth Amendment failure to protect claim
because that lesser standard “is not satisfied when the surprise attack was a surprise to everyone

involved, including plaintiff”), appeal dismissed sub nom. Charles v. Rockland Cty., No. 19-1041,
2019 WL 5301898 (2d Cir. Sept. 5, 2019). The fact that Plaintiff was attacked twice does not alter
this conclusion. The initial attack was a surprise, the inmates were separated, and the assailant was
being escorted away when he revealed a weapon, screamed, and lunged toward Plaintiff again.
(SAC ¶¶ 13-22). This second attack, occurring as the inmates were being separated, is not
actionable under the Eighth Amendment. See Brown v. Chambers, No. 92-CV-7622, 1995 WL
234681, at *4 (S.D.N.Y. Apr. 20, 1995) (explaining that officers’ “failure to anticipate a” second
attack after breaking up the first fight and escorting one inmate out of the housing unit “was, at
most, negligence”), aff’d sub nom. Brown v. Chamber, 99 F.3d 402 (2d Cir. 1995).
The foregoing analysis provides a separate, independent basis for dismissing the Eighth
Amendment claims against Ott and Zevallos.4
2. Failure to Plead Conditions of Confinement Claim (Eighth Amendment)
Plaintiff’s second Eighth Amendment claim posits that Norton violated Plaintiff’s rights
by segregating him in IPC. (SAC ¶¶ 43-44). “The Constitution does not mandate comfortable

prisons. Rather, [o]nly those deprivations denying the minimal civilized measure of life’s
necessities are sufficiently grave to form the basis of an Eighth Amendment violation.” Bowers v.
New York Dep’t of Corr. & Cmty. Supervision, No. 17-CV-0789, 2018 WL 941740, at *3
(N.D.N.Y. Feb. 16, 2018) (alteration in original, internal quotation marks omitted). Simply placing
Plaintiff in IPC is not an Eighth Amendment violation; Plaintiff must identify also a danger to his
health or safety—something he has not done. See Sostre v. McGinnis, 442 F.2d 178, 192 (2d Cir.
1971) (“It is undisputed on this appeal that segregated confinement does not itself violate the
Constitution.”); Allah v. Poole, 506 F. Supp. 2d 174, 191 (W.D.N.Y. 2007) (“Plaintiff has not
alleged living conditions in IPC that ‘jeopardize[d his] health or safety’ so as to give rise to an

Eighth Amendment claim.” (quoting Johnson v. Hannah, 421 F. Supp. 2d 604, 607 (W.D.N.Y.
2006) (alteration in original)); see also Bowers, 2018 WL 941740, at *3 (dismissing Eighth

4 The allegation that the officers “jump[ed] out of the way” does not salvage these claims. Ignoring the fact
that Ott escorted the assailant from behind and Zevallos stood beside Plaintiff (SAC ¶¶ 19, 21), the crux of
Plaintiff’s complaint is that the officers, in the middle of the recreation yard, should have put themselves in
harm’s way and tried to stop the attack instead of waiting for the emergency response team. (Id. ¶¶ 23-24).
The officers’ compliance with Plaintiff’s expectations is of no moment; “[t]he law in this Circuit is clear
that officers are under no obligation to put their own safety at risk by intervening in inmate fights.”
Rodriguez v. Goins, No. 18-CV-1380, 2020 WL 6150984, at *5 (N.D.N.Y. Aug. 17, 2020) (quoting Velez
v. City of New York, No. 17-CV-9871, 2019 WL 3495642, at *5 (S.D.N.Y. Aug. 1, 2019)), adopted by 2020
WL 6146597 (N.D.N.Y. Oct. 20, 2020); see also Leckie v. City of New York, No. 18-CV-3917, 2021 WL
84234, at *5 (E.D.N.Y. Jan. 11, 2021) (explaining, in a failure to protect context, that “an officer displays
deliberate indifference when he has adequate time to assess a serious threat against an inmate and a fair
opportunity to protect the inmate without risk to himself, yet fails to intervene” (internal quotation marks
omitted)). Giving Plaintiff every conceivable inference, the Court cannot conclude that Ott or Zevallos had
an opportunity to protect Plaintiff without risk to themselves.
Amendment claim based on IPC placement because plaintiff failed to allege facts about the
conditions of his confinement).
As with the failure to protect claim, this analysis provides a separate, independent basis for
dismissing this Eighth Amendment claim against Norton.
3. Failure to Plead a Procedural Due Process Claim (Fourteenth Amendment)

The Fourteenth Amendment provides that “[n]o State shall . . . deprive any person of life,
liberty, or property, without due process of law . . . .” U.S. Const. amend. XIV § 1. “[T]o present
a [procedural] due process claim, a plaintiff must establish (1) that he possessed a liberty interest
and (2) that the defendant(s) deprived him of that interest as a result of insufficient
process.” Joseph v. Cuomo, No. 20-CV-03957, 2021 WL 200984, at *6 (E.D.N.Y. Jan. 20, 2021)
(quoting Adams v. Annucci, No. 17-CV-3794, 2018 WL 4608216, at *6 (S.D.N.Y. Sept. 25, 2018)
(alterations in original)); see also Velazquez v. Gerbing, No. 18-CV-8800, 2020 WL 777907, at *9
(S.D.N.Y. Feb. 18, 2020). For this claim, Plaintiff complains that his placement in IPC from
October 21, 2019 until his release on March 11, 2020, violated his “right to remain[] in the general

prison population . . . .” (SAC ¶¶ 27, 31, 44).
As to the first element, “the threshold issue is always whether the plaintiff has a property
or liberty interest protected by the Constitution.” Vogelfang v. Capra, 889 F. Supp. 2d 489, 510
(S.D.N.Y. 2012) (quoting Perry v. McDonald, 280 F.3d 159, 173 (2d Cir. 2001)). According to
the Second Circuit, an inmate’s liberty interest is implicated by prison disciplinary proceedings
only if the discipline5 imposes “atypical and significant hardship on the inmate in relation to the
ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484 (1995); Washington v.

5 Although IPC is “a form of administrative segregation, as opposed to disciplinary confinement,” Tavares
v. Amato, 954 F. Supp. 2d 79, 95 (N.D.N.Y. 2013), the analysis is the same, Arce v. Walker, 139 F.3d 329,
334-35 (2d Cir. 1998).
Afify, 681 F. App’x 43, 45 (2d Cir. 2017). “Such discipline must be unusually onerous.” Aikens v.
Porter, No. 16-CV-949, 2019 WL 499993, at *4 (W.D.N.Y. Feb. 8, 2019) (citing Jenkins v.
Haubert, 179 F.3d 19, 28 (2d Cir. 1999)). “Factors relevant to this determination include ‘the
extent to which the conditions of the disciplinary segregation differ from other routine prison
conditions’ and ‘the duration of the disciplinary segregation imposed compared to discretionary

confinement.’” Colon v. Annucci, 344 F. Supp. 3d 612, 632 (S.D.N.Y. 2018) (quoting Palmer v.
Richards, 364 F.3d 60, 64 (2d Cir. 2004)). “[T]here can be no ‘violation’ of procedural due process
requirements unless the confinement meets the atypicality standard of Sandin.” Sealey v. Giltner,
197 F.3d 578, 586 (2d Cir. 1999).
In this case, Plaintiff’s segregation in IPC lasted approximately 142 days, so his complaint
falls within the “intermediate” tier of analysis (i.e., segregation lasting between 101 and 305 days).
See Brown v. Venettozzi, No. 18-CV-2628, 2019 WL 4194432, at *4 (S.D.N.Y. Sept. 4, 2019). In
such cases, the length of duration in segregated housing, by itself, is insufficient to state a claim
and “development of a detailed record of the conditions of the confinement relative to ordinary

prison conditions is required.” Palmer, 364 F.3d at 65 (internal quotation marks omitted). This
reality does not, however, excuse Plaintiff from pleading facts regarding the conditions of his IPC
placement and open the doors to discovery; a viable claim still requires some explanation as to
how the placement imposed “atypical and significant hardships.” See, e.g., Venettozzi, 2019 WL
4194432, at *5 (dismissing claim connected to 210-day confinement because, inter alia, plaintiff’s
allegations did not “involv[e] ‘more onerous’ or ‘atypical’ conditions of confinement”); Falls v.
Campbell, No. 17-CV-35, 2019 WL 1255768, at *10 (S.D.N.Y. Mar. 19, 2019) (dismissing claim
about 150 days in “keeplock” because the plaintiff “asserted no facts whatsoever that would allow
the Court to assess whether” he experienced “a significant and atypical hardship” (emphasis in
original)); Dawkins v. Gonyea, 646 F. Supp. 2d 594, 606-07 (S.D.N.Y. 2009) (dismissing claim
regarding 280-day confinement because the plaintiff “failed to make any allegations detailing the
conditions of his confinement”). Neither the SAC nor Plaintiff’s opposition offer any allegations
even suggesting that he experienced the conditions envisioned by Sandin and its progeny. (See
generally SAC; Opp.).

Accordingly, because Plaintiff failed to plead the existence of a liberty interest, his claim
for relief stemming from Norton’s alleged violation of his Fourteenth Amendment procedural due
process rights is dismissed.
4. Failure to Plead Personal Involvement
Plaintiff’s remaining claims maintain that Royce and Russo violated his rights under the
Eighth and Fourteenth Amendments by “allow[ing] and condon[ing]” unconstitutional practices.
(SAC ¶¶ 32-41). With respect to Royce, the Superintendent, Plaintiff alleges that he tolerated
constitutional violations by “fail[ing] to insure that . . . officers were trained . . . in restraining
inmates involved in an altercation . . . .” and permitting his IPC review “to be held by only the

Committee Chairperson” instead of a three-person panel. (Id. ¶¶ 34-37). As for Russo, the Deputy
Superintendent, Plaintiff complains only that he allowed unconstitutional conduct by “fail[ing] to
insure that correctional officers were instructed . . . in restraining inmates involved in an altercation
. . . .” Defendants argue that Royce and Russo must be dismissed because Plaintiff fails to plead
their personal involvement. (Def. Br. at 10-13). The Court need not determine whether Plaintiff
pled Royce or Russo’s personal involvement because Plaintiff failed to plead any underlying
claims. Without an underlying claim of a constitutional violation, no supervisory liability exists.
See Raspardo v. Carlone, 770 F.3d 97, 129 (2d Cir. 2014) (“Because we have held that there was
no underlying constitutional violation, there is also no supervisory liability.”); Ortiz v. Ledbetter,
No. 19-CV-2493, 2020 WL 2614771, at *7 (S.D.N.Y. May 22, 2020) (“[T]here
is no underlying constitutional violation, so Plaintiff has not stated a claim for which the
supervisory Defendants could be liable.”).
The claims against Royce and Russo are, accordingly, dismissed.
CONCLUSION
For the foregoing reasons, Defendants’ motion to dismiss is GRANTED. While “[d]istrict
courts should frequently provide leave to amend before dismissing a pro se complaint . . . leave to
amend is not necessary when it would be futile.” Reed v. Friedman Mgmt. Corp., 541 F. App’x
40, 41 (2d Cir. 2013) (citing Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000)). In this case,
the SAC 1s dismissed with prejudice because any amendment would be futile.
The Clerk of the Court is respectfully directed to terminate the motion sequence pending
at Doc. 43, mail a copy of this Memorandum Opinion and Order to Plaintiff, and close this case.°

SO ORDERED:
Dated: White Plains, New York Ctra
June 11, 2021
PHILIPM.HALPERN ———(i‘“‘CSC;C;S
United States District Judge

® Tn light of the conclusions reached herein, the Court need not and does not address Defendants’ arguments
regarding qualified immunity or the availability of declaratory relief. The Court likewise does not address
Plaintiff’s request, made in his opposition brief, for “an opportunity to provide statistical and factual
documents to further support [his] allegations ... .” (Opp. at 5).
21

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10332755. Public record. Not legal advice.