Robinson v. Balanetre

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

RANDOLPH ROBINSON,

Plaintiff, MEMORANDUM

OPINION AND ORDER

-against-

21-CV-02071 (PMH)

DELTA BALANETRE, Superintendent; RONDA

MURRAY, Nurse Administrator,

Defendants.

PHILIP M. HALPERN, United States District Judge:

Randolph Robinson (“Plaintiff”), currently incarcerated at Otisville Correctional Facility

(“Otisville”), proceeding pro se and in forma pauperis, asserts claims against Otisville

Superintendent Delta Balanetre (“Balanetre”) and Nurse Administrator Ronda Murray

(“Murray,” and together, “Defendants”) under 42 U.S.C. § 1983 for violations of the Eighth

Amendment. Specifically, Plaintiff alleges that he contracted COVID-19 at Otisville because

correctional staff failed to adhere to safety protocols, and individuals entering the facility were

not quarantined. (See Doc. 2, “Compl.”).

On July 9, 2021, Defendants filed a pre-motion letter in accordance with the Court’s

Individual Practices in anticipation of a motion to dismiss. (Doc. 14). The letter indicates that

Defendants had previously served Plaintiff with a deficiency letter setting forth the bases for the

anticipated motion, and that Plaintiff had not responded. (Id. at 1). Defendants’ pre-motion letter

further indicates that it was served on Plaintiff via mail. (Id. at 5). Plaintiff did not file any

response thereto. Accordingly, the Court set a briefing schedule for Defendants’ motion. (Doc.

15). The docket indicates that a copy of the Court’s Order was mailed to Plaintiff. (July 21, 2021

Entry). On September 7, 2021, Defendants filed a motion to dismiss. (Doc. 16). On September 8,

2021, the Court issued an Order denying the motion without prejudice to re-filing in compliance

with the Court’s Individual Practices and the Local Civil Rules of the Southern District of New

York, in particular Local Civil Rules 7.1(a)(1) and (a)(3). (Doc. 17 (citing Whitley v. Bowden,

No. 17-CV-03564, Doc. 116 at 3-4; Multiwave Sensor Inc. v. Sunsight Instr., LLC, No. 16-CV-

01361, 2017 WL 1498058, at *2 n.1 (S.D.N.Y. Apr. 26, 2017))). That Order also set a new

briefing schedule in the event Defendants elected to re-file. (Id.). The docket indicates that a

copy of the September 8th Order was also mailed to Plaintiff. (Sept. 9, 2021 Entry).

Defendants re-filed their motion to dismiss on September 9, 2021, in accordance with the

Court’s September 8th Order. (Doc. 18). Plaintiff’s opposition was due on November 8, 2021.

(Doc. 17). Plaintiff did not file opposition papers. Defendants requested, on January 19, 2022,

that their motion be deemed fully submitted for decision without opposition. (Doc. 19). The

letter indicates that it was mailed to Plaintiff. (Id.). On January 19, 2022, the Court issued an

Order denying Defendants’ request to deem the motion fully submitted, sua sponte extending

Plaintiff’s time to oppose the motion to February 18, 2022, and warning Plaintiff that no further

extensions would be granted. (Doc. 20). The January 19th Order further cautioned that if Plaintiff

failed to file an opposition by February 18, 2022, the motion would be deemed fully submitted

and unopposed. (Id.). The docket indicates that a copy of the Court’s January 19th Order was

mailed to Plaintiff. (Jan. 20, 2022 Entry). Plaintiff has not, as of the date of this Memorandum

Opinion and Order, filed any opposition papers. Accordingly, the motion is deemed fully

submitted and ripe for adjudication.

For the reasons set forth below, Defendants’ motion to dismiss is GRANTED.

BACKGROUND

Plaintiff’s factual allegations are set forth over one-and-a-half pages in the Complaint.

(Compl. at 6-7).1 Plaintiff alleges that the New York State Department of Corrections and

Community Supervision (“DOCCS”) was responsible for ensuring the health and safety of

incarcerated individuals and employees, and that DOCCS failed to swiftly implement measures

to stop the spread of COVID-19. (Id. at 6). Plaintiff states that “[n]one of the measures taken

served any meaningful life preventive nature when staff infections was [sic] prominent.” (Id.).

Plaintiff alleges that the measures taken by DOCCS at Otisville—i.e., social distancing, requiring

hand-cleaning and the use of hand sanitizer, avoiding “high touch surfaces,” recommending the

use of tissues or sleeves to cover hands, etc.—were deficient because correctional staff failed to

adhere to safety protocols and individuals entering the facility were not quarantined. (Id.).

Consequently, Plaintiff alleges that the incarcerated population was put at risk and he contracted

the virus. (Id.).

Plaintiff experienced a fever, headaches, loss of appetite and loss of taste, and became

weak and tired. (Id.). He contends that his “life was in jeopardy and caused [him] severe pain and

suffering” from “all the noted symptoms of an infected party of COVID-19.” (Id.). He alleges

that his Eighth Amendment right to be free from cruel and unusual punishment was violated in

that: (1) Murray, as Nurse Administrator, failed to enact sufficient methods for virus control; and

(2) Balanetre, as Superintendent, “enforced” Murray’s decision, was responsible for “who the

essential workers were,” and failed to quarantine the staff. (Id. at 7). Plaintiff seeks $1.8 million

in damages. (Id.).

1 Citations to the Complaint correspond to the pagination generated by ECF.

STANDARD OF REVIEW

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. (quoting 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 “appropriate where a plaintiff has

clearly failed to meet minimum pleading requirements.” Thomas v. Westchester Cty., No. 12-

CV-06718, 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.

The Court does, however, have 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)).

Moreover, when deciding an unopposed motion to dismiss (as is the case here with

respect to Defendants’ motion), “the Court is to ‘assume the truth of a pleading’s factual

allegations and test only its legal sufficiency. Thus, although a party is to be given a reasonable

opportunity to respond to an opponent’s motion, the sufficiency of a complaint is a matter of law

that the court is capable of determining based on its own reading of the pleading and knowledge

of the law.’” Law v. Corizon Med. Servs., No. 13-CV-05286, 2014 WL 2111675, at *3 (S.D.N.Y.

May 12, 2014) (quoting McCall v. Pataki, 232 F.3d 321, 322-23 (2d Cir. 2000)). It is, therefore,

appropriate for the Court to test the sufficiency of the Complaint even without the benefit of

formal opposition to the motion.

ANALYSIS

I. Eleventh Amendment Immunity

Defendants argue that to the extent Plaintiff has asserted claims against them in their

official capacities, those claims are barred by sovereign immunity. Whether this immunity

argument is properly brought under Rule 12(b)(1) or 12(b)(6) is an unsettled question of law in

this Circuit. Ripa v. Stony Brook Univ., 808 F. App’x 50, 51 n.1 (2d Cir. 2020) (“Whether

Eleventh Amendment immunity ‘constitutes a true issue of subject matter jurisdiction or is more

appropriately viewed as an affirmative defense’ has not yet been decided by the Supreme Court

or [the Second Circuit].” (quoting Carver v. Nassau Cty. Interim Fin. Auth., 730 F.3d 150, 156

(2d Cir. 2013))). Although Defendants do not reference Rule 12(b)(1) as a ground for their

motion to dismiss,2 the “distinction has no practical effect” in this case because whether brought

under either subdivision, the Court considers on this motion “only the pleadings and the relevant

state and federal law and has drawn all inferences in Plaintiff’s favor.” Harrison v. New York, 95

F. Supp. 3d 293, 313 (E.D.N.Y. 2015) (quoting Tiraco v. N.Y. State Bd. of Elections, 963 F.

Supp. 2d 184, 191 n.6 (E.D.N.Y. 2013)).

2 Defendants, in the notice of motion, invoke Rule 12(b) as the grounds for dismissal but fail to identify

which subdivision(s) are appropriate. (Doc. 18 at 1). The Court notes that Local Civil Rule 7.1(a)(1)

requires that a notice of motion “specify the applicable rules or statutes pursuant to which the motion is

brought.” Nevertheless, the Court construes the motion as made under Rule 12(b)(6) because Defendants’

memorandum of law in support makes clear that the motion seeks to dismiss the Complaint for failure to

state a claim upon which relief can be granted. (See, e.g., Doc. 18 at 9, 12).

Insofar as Plaintiff seeks relief under 42 U.S.C. § 1983, the Eleventh Amendment directs

that “[t]he 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, or against a state employee acting

in his official capacity, 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)); see

also Will v. Mich. Dept. of State Police, 491 U.S. 58, 71 (1989) (“A suit against a state official in

his or her official capacity is not a suit against the official, but rather is a suit against the

official’s office . . . . As such, it is no different from a suit against the State itself.”).

“[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-07953, 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-00927, 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, Plaintiff’s claims are dismissed to the

extent they seek relief against Defendants in their official capacities.

II. Rule 12(b)(6): Failure to State a Claim Under § 1983

Plaintiff’s Eighth Amendment claim is brought under 42 U.S.C. § 1983. That section

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 . . . creates a mechanism by which individuals can

vindicate the violation of rights secured elsewhere.” Linares v. Annucci, No. 19-CV-11120, 2021

WL 2689736, at *6 (S.D.N.Y. June 30, 2021) (quoting Santucci v. Levine, No. 17-CV-10204,

2021 WL 76337, at *3 (S.D.N.Y. Jan. 8, 2021) (first alteration in original)).

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 include 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).

For Plaintiff to state a claim against Defendants for failing to protect him from COVID-

19, 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). 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).

“[C]orrectional officials have an affirmative obligation to protect inmates from infectious

disease.” Jolly v. Coughlin, 76 F.3d 468, 477 (2d Cir. 1996). Courts have found that inmates may

face a substantial risk of serious harm absent adequate measures to counter the spread of

COVID-19, as “[i]t is undisputed—and, indeed, by now common knowledge—that COVID-19 is

a highly dangerous disease that poses a significant risk of severe illness and death.” Houston v.

Capra, No. 20-CV-02135, 2022 WL 748260, at *8 (S.D.N.Y. Mar. 11, 2022); see also Petitpas

v. Griffin, No. 20-CV-00769, 2020 WL 6826723, at *6 (D. Conn. Nov. 21, 2020); Chunn v.

Edge, 465 F. Supp. 3d 168, 200 (E.D.N.Y. 2020) (citing cases).

Plaintiff has not alleged that his exposure to COVID-19 resulted from Defendants’

“deliberate indifference.” Edwards, 2021 WL 1748478, at *1. Plaintiff does not allege how,

when, where, or for how long he was exposed to the challenged circumstances. The allegations

set forth in the Complaint do not plausibly suggest that Plaintiff was confined in an environment

that posed a substantial risk of transmission of COVID-19, or that Defendants ignored that risk.

To the contrary, Plaintiff alleges that DOCCS implemented measures such as social distancing,

required hand-cleaning, the use of hand sanitizer, and cleaning surfaces frequently, and

recommended avoiding “high touch surfaces” and touching the face, nose, and eyes, and the use

of tissues or sleeves to cover hands. (Compl. at 6). Presently pled, the allegations in the

Complaint do not plausibly suggest that Plaintiff was at substantial risk of serious harm. Morgan

v. Parmiter, No. 22-CV-00147, 2022 WL 913188, at *3-4 (N.D.N.Y. Mar. 29, 2022); Chunn,

465 F. Supp. 3d at 200 (“[W]hether a particular danger poses a substantial risk of serious harm in

a prison must be evaluated in light of the steps that the facility has already taken to mitigate the

danger.”).

Even if Plaintiff were able to satisfy the objective prong, he fails to satisfy the subjective

prong. Plaintiff has not adequately alleged that Defendants intentionally or recklessly failed to

act with reasonable care to mitigate the risk that the alleged conditions posed to Plaintiff.

Plaintiff suggests that countermeasures taken at Otisville were rendered useless because

individuals entering the facility (either staff or contractors, or both) were not quarantined, and

that those individuals brought the virus to Otisville, which he then contracted. (Compl. at 6-7).

Even assuming Defendants’ response to COVID-19 was imperfect, or negligent, it is not enough

to support a finding of deliberate indifference. Parmiter, 2022 WL 913188, at *4 (citing Pike v.

Cerliano, No. 20-CV-0619, 2021 WL 3704377, at *3 (E.D. Tex. Aug. 3, 2021), adopted by 2021

WL 3700252 (E.D. Tex. Aug. 19, 2021)).

Moreover, as a fundamental prerequisite “[t]o establish[ing] a § 1983 claim, a plaintiff

must show the defendants’ personal involvement in the alleged constitutional violation.” Boley v.

Durets, 687 F. App’x 40, 41 (2d Cir. 2017) (citing Wright v. Smith, 21 F.3d 496, 501 (2d Cir.

1994)). Failing to allege that a defendant was personally involved in, or responsible for, the

conduct complained of renders a complaint “fatally defective on its face.” Alfaro Motors, Inc. v.

Ward, 814 F.2d 883, 886 (2d Cir. 1987) (internal quotation marks omitted). Simply being a

supervisor is not enough to impute personal involvement onto a defendant; liability exists only

where the “defendant, through the official’s own individual actions, has violated the

Constitution.” Tangreti v. Bachmann, 983 F.3d 609, 618 (2d Cir. 2020) (quoting Iqbal, 556 U.S.

at 676).

While Plaintiff claims that many of the policies that were implemented to combat the

COVID-19 pandemic were inadequate, he fails to allege the role either Defendant had beyond

their positions as supervisors. (Compl. at 6-7). Defendants’ supervisory positions are not

sufficient, without more, to show that they were or should have been aware of the conditions of

which Plaintiff complains. Gil-Cabrera v. Dep’t of Corr., No. 20-CV-09493, 2021 WL 5282620,

at *4 (S.D.N.Y. Sept. 27, 2021) (dismissing § 1983 claims against prison supervisors alleging

deliberate indifference to serious risk of contracting COVID-19 when complaint lacked facts

about how supervisory officials were personally involved in alleged violations), adopted by 2021

WL 5910055 (S.D.N.Y. Dec. 14, 2021); Gibson v. State of New York, No. 21-CV-04251, 2021

WL 4267683 (S.D.N.Y. Sept. 20, 2021) (same); Rose v. City of New York Dep’t of Corr., No.

21-CV-03164, 2021 WL 3271830, at *2 (S.D.N.Y. July 30, 2021) (same).

The Complaint is silent as to whether Defendants individually made any meaningful

efforts to “forestall or prevent” any implied constitutional violations by unspecified individuals

coming to Otisville with COVID-19. Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 127

(2d Cir. 2004). The Complaint is likewise silent about whether and how “more or better

supervision” would have protected Plaintiff from any constitutional violations by unspecified

Otisville staff. (Id.) It follows, then, that Plaintiff’s Eighth Amendment claim is dismissed.

CONCLUSION

The Court GRANTS Defendants’ motion to dismiss without prejudice. Plaintiff may file

an Amended Complaint within thirty days from the date of this Order to address only the

pleading deficiencies identified herein and for no other purpose. Failure to file an Amended

Complaint within thirty days will result in dismissal of this action without further notice.

Plaintiff is reminded that if he chooses to file an Amended Complaint, it will completely replace,

not supplement, the original complaint. Therefore, any facts or claims that Plaintiff wishes to

maintain must be included in the Amended Complaint.

The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this Memorandum

Opinion and Order would not be taken in good faith, and therefore in forma pauperis status is

denied for the purpose of an appeal. Cf Coppedge v. United States, 369 U.S. 438, 444-45 (1962)

(holding that an appellant demonstrates good faith when he seeks review of a nonfrivolous

issue).

The Clerk of the Court is respectfully directed to terminate the motion pending at Doc. 18

and to mail a copy of this Memorandum Opinion and Order to Plaintiff.

Dated: White Plains, New York

April 20, 2022

SO ORDERED:

Philip M.Halpen

United States District Judge

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