Liverpool v. The City of New York

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

ANTON F. LIVERPOOL,

Plaintiff,

– against –

THE CITY OF NEW YORK, KISA

OPINION & ORDER

SMALLS, MARCIA VAUGHN,

ASSISTANT DEPUTY WARDEN 20-cv-4664 (ER)

AINSWORTH FOO, CAPTAIN

DELILAH HOPE, ERNESTO

VALLEJOS, OFFICER MILTON

HOSSEN, and DEPUTY WARDEN

CHANTELLE JOHNSON,

Defendants.

RAMOS, D.J.:

Anton Liverpool, proceeding pro se,1 commenced this action pursuant to 42

U.S.C. § 1983 against the City of New York; Warden Kisa Smalls; Correction Officers

Marcia Vaughn, Ernesto Vallejos, and Milton Hossen; Assistant Deputy Ainsworth Foo;

Captain Delilah Hope; and Deputy Warden Chantelle Johnson (collectively,

“Defendants”),2 alleging that they violated the Due Process Clause of the Fourteenth

Amendment by failing to protect him while he was incarcerated at Rikers Island from

August 3, 2017, until September 6, 2018. Doc. 95. Defendants filed the instant motion to

dismiss Liverpool’s Fourth Amended Complaint (“FAC”) in its entirety for failure to state

a claim. Doc. 98. For the reasons set forth below, the motion is denied as to Officer

Vaughn but granted as to the remaining Defendants.

1 Liverpool’s response to the instant motion to dismiss was prepared with the assistance of the New York

Legal Assistance Group’s Legal Clinic (“NYLAG”), though the organization does not represent him.

2 Captain Hope has not appeared in this action.

I. BACKGROUND

A. Factual Background3

Liverpool was incarcerated in the Anna M. Kross Center (“AMKC”), a New York

City Department of Corrections (“DOC”) facility on Rikers Island, from August 3, 2017

until September 6, 2018. Doc. 1 at 1; Doc. 94-1 at 62. All of the cells in Liverpool’s

cellblock have solid doors with openings for food trays to be passed through them.4 Doc.

95 at 1.

Liverpool’s 311 Complaints

While at the AMKC, Liverpool called the Office of Constituent and Grievance

Services’ (“OCGS”) 311 Call Center (the “Call Center”) at least thirteen times to file

complaints, described below, regarding various incidents that took during his

incarceration.5 Doc. 94-1.

▪ On August 14, 2017, shortly after arriving at the AMKC, Liverpool alleged he

discovered a piece of hard plastic in his food. He reported the incident to

Officer Kitt and Officer Kirk, neither of whom are defendants. Id. at 1–4, 18.

The OCGS was unable to verify the allegation. Id. at 20–22.

▪ On August 24, 2017, Liverpool complained that his vegan meals were being

withheld. Id. at 5–8.

▪ Also on August 24, 2017, Liverpool separately complained that had difficulty

contacting his lawyer. Id. at 9–11.

▪ On August 29, 2017, Liverpool alleged that his meals were being provided

without soy milk (as required by his vegan diet). Id. at 12–14.

▪ On November 9, 2017, Liverpool asserted that he was involved in a bus

accident and was denied medical treatment thereafter. Id. at 23–26.

3 The facts recited herein are taken from the allegations in the FAC. Doc. 95. As Liverpool is pro se, the

Court also considers the allegations in Liverpool’s opposition brief, Doc. 112, that are consistent with the

FAC. Rodriguez v. McGinnis, 1 F. Supp. 2d 244, 246–47 (S.D.N.Y. 1998) (citing Gill v. Mooney, 824 F.2d

192, 195 (2d Cir. 1987)).

4 The record is silent as to the size of the openings apart from an indication that they are roughly five feet

off the ground. Doc. 112 at 11.

5 Defendants produced a document compiling summaries generated by the DOC regarding Liverpool’s calls

to the Call Center while he was at the AMKC. Doc. 94-1. Liverpool relied on this compilation in drafting

the FAC, refers to the summaries multiple times, and attached six pages of the compilation to the FAC. See

Doc. 95 at 12–17. The Court considers these 311 complaint summaries in their entirety. See Clemmons v.

Hodes, No. 15-cv-8975 (KPF), 2017 WL 4326111, at *1 n.2 (S.D.N.Y. Sept. 26, 2017) (citing Rothman v.

Gregor, 220 F.3d 81, 88–89 (2d Cir. 2000) and Sira v. Morton, 380 F.3d 57, 67 (2d Cir. 2004)).

▪ On November 21, 2017, Liverpool reported that officers were “continually

trying to intimidate” him because of a rumor that he was a rapist. He also

complained that Officer Tegal, who is not a defendant in this case, came to his

cell and asked if he was masturbating. Id. at 31–34.

▪ On November 24, 2017, Liverpool complained that Officer Curt, who is not a

defendant in this case, refused to issue him a property receipt for an article of

clothing and denied him recreation. Id. at 27–30.

▪ On December 4, 2017, Liverpool requested a transfer, explaining that he felt

“uneasy” that Officer Kirk, who is not a defendant in this case, “might do

something to him.” Id. at 35–37.

▪ On March 28, 2018, Liverpool reported that he was involved in another bus

accident and that Officer Supris, who is not a defendant in this case, refused to

provide him with information regarding what the bus driver hit. Id. at 38–41.

▪ On June 6, 2018, Liverpool reported that someone withdrew funds from his

account without authorization. Id. at 42–43. The incident was investigated,

and it was determined that the funds were deducted for Court filing fees. Id.

at 50–52.

▪ On August 29, 2018, Liverpool claimed that “Officer #33206 . . . [insinuates]

that [he] masturbates to her. She wants other inmates to beat him

up . . . Officer Broome [] does the same.” Id. at 53–56. Neither Officer

Stimphil nor Officer Broome are defendants in this case.

▪ Liverpool alleged that on September 3, 2018, someone entered his cell and

“threw unknown liquid” into his eyes and that he believed officers were

“encouraging other inmates to start trouble with him.” Id. at 57–60.

▪ On September 24, 2018, Liverpool claimed that someone stole his

commissary pass and had been taking money out of his account. Id. at 61–64.

As the above descriptions make clear, none of Liverpool’s complaints to the

OCGS mentioned any of the Defendants, and only one, filed on September 3, 2018,

alleges that Liverpool suffered an assault by other inmates.7

6 Officer #3320 is identified as Officer Stimphil. Doc. 94-1 at 54; Doc. 95 at 4 (identifying “Stemphill” by

reference to “#3320”).

7 Liverpool asserts—and the Court accepts as true on this motion—that the compilation of 311 complaint

summaries the Defendants produced do not reflect all the 311 complaints that Liverpool filed. Doc. 95 at 3.

Liverpool also alleges that these 311 complaint summaries are edited because the DOC has a policy of

reducing them to only twenty-five words each. Id.; Doc. 91 at 1. The Court notes, however, that every one

of these thirteen 311 complaint summaries exceeds twenty-five words, some nearing or exceeding one

hundred words. See e.g., Doc. 94-1 at 35, 39, 62.

The September 3 Attack

Between 11:00 pm on September 2, 2018, and 7:00 am on September 3, 2018,

Officers Vallejos, Hossen, and Vaughn were stationed in Liverpool’s cellblock. Doc. 95

at 2. The three officers allegedly knew that inmates regularly exited their cells at night if

their cells were not checked for obstructions, which prevented their cell doors from

locking. Id. at 6. Notwithstanding their knowledge of this potential security breach, they

neglected to ensure that no obstructions prevented inmates’ cells from locking on the

night of September 2, 2018. Id. at 2. Additionally, Officer Vaughn turned off the hallway

lights, id. at 4, even though they were required to be kept on,8 Doc. 71 at 3. Warden Kisa

Smalls, Deputy Warden Chantelle Johnson, and Assistant Deputy Warden Ainsworth Foo

also allegedly knew that inmates would escape their cells if they were not checked for

obstructions, Doc. 112-1 at 2, and were responsible for sending officers on duty to check

the locks, Doc. 95 at 6.

At approximately 3:00 am on September 3, 2018, another inmate named Jeremy

Bethune9 (having placed an obstruction in his cell door, which prevented it from locking)

exited his cell and threw a mixture of cleaning fluids through the open slot in Liverpool’s

cell door, which splashed into his eyes (the “September 3 Attack”). Id. at 1. This attack

left Liverpool with severe burning in his eyes, temporary blindness, and a significant

distortion in his vision that lasted several days. Id. at 7. At 11:15 am that morning,

Liverpool called the Call Center and complained that during the night, “someone came in

8 In the FAC, Liverpool alleges that Officer Vaughn turned off the lights to compensate inmates who

harassed and assaulted Liverpool by allowing them greater freedom at night. Doc. 95 at 4. This

characterization is contrary to Liverpool’s prior assertions that Officer Vaughn turned off the hallway lights

to allow officers and inmates to fall asleep more easily. Doc. 35 at 5; Doc. 71 at 3. The Court “may

disregard amended pleadings when they directly contradict facts that have been alleged in prior pleadings.”

Kilkenny v. Law Off. of Cushner & Garvey, L.L.P., No. 08-cv-0588 (KMK), 2012 WL 1638326 at *5

(S.D.N.Y. May 8, 2012) (collecting cases).

9 Liverpool repeatedly refers to an inmate named “Bethume.” See e.g., Doc. 95 at 1. Defendants identify

the inmate as Jeremy Bethune. Doc. 99 at 8.

[his] cell and threw unknown liquid in his eyes” and that he believed “officers [were]

encouraging other inmates to start trouble with him.” Doc. 94-1 at 57–58.

New Allegations in the FAC

In the FAC, Liverpool newly alleges that between August 2017 and September

2018, he was repeatedly assaulted and harassed by the staff and other inmates because of

a rumor that he was a rapist. Doc. 95 at 5. Officer Stimphil allegedly accused Liverpool

of being a pervert, a rapist, and a child molester, which provoked inmates to do the same.

Id. Liverpool asserts that on six different occasions, Bethune attacked Liverpool—

sometimes in front of Officer Vaughn. Id. at 7. Bethune and an inmate, named

“Castillo,”10 would frequently threaten Liverpool that they were going to rape him. Id. at

9. At some point during his tenure at the AMKC, Liverpool claims that Castillo

ejaculated into Liverpool’s food before he unknowingly ate it. Id. at 8. Liverpool alleges

that Castillo then bragged about this vulgar act to Officer Vaughn and other staff

members, who allowed Castillo to continue serving Liverpool his food. Id. Liverpool

asserts that Officer Vaughn witnessed these abuses “night after night” and laughed about

them. Id. at 5. Liverpool contends that Officer Vaughn even compensated inmates for

harassing and abusing him by allowing them to “run amok” outside their cells at night

and to freely smoke marijuana and tobacco. Id. at 4. All the Defendants allegedly knew

that Liverpool was a target of harassment and abuse for the staff and other inmates. Id. at

6.

After the September 3 Attack, Liverpool now alleges that the Defendants were

“even more indifferent” to his safety, as he continued to be harassed by Bethune and

others, who threw urine and cleaning fluids into his cell daily. Id. at 8. On one occasion,

Liverpool claims that Bethune and Castillo besieged him by throwing urine, feces,

cleaning fluids, and other objects into his cell for six hours. Id.

10 According to Liverpool, Castillo is an inmate in Liverpool’s cellblock who was a violent gang member

charged with murder. Doc. 95 at 9. Defendants have not identified this inmate.

On September 6, 2018, Liverpool was transferred from the AMKC to the

Brooklyn Detention Complex. Doc. 94-1 at 62. On October 12, 2018, Liverpool entered

state custody in Rhode Island, Doc. 99 at 13, where he currently resides, Doc. 112-1 at 5.

B. Procedural History

Liverpool filed the initial complaint on June 17, 2020, while he was incarcerated

in Rhode Island, naming the City, Vaughn, and seven unidentified “John Doe” officers as

defendants due solely to their respective roles in the September 3 Attack. Doc. 1. On

August 7, 2020, the Court directed the City to provide Liverpool with the identities of the

“John Doe” defendants. Doc. 7 at 3–4. Between August 7, 2020, and September 15,

2021, the City identified all but one of the “John Doe” defendants pursuant to a Valentin

order.11 Docs. 12, 18, 22, 43, 45, 47, 49, 52. Liverpool amended his complaint on March

23, and shortly thereafter on March 29, 2021, repeating substantially similar allegations

regarding the September 3 Attack as those alleged in the initial complaint. Doc. 35; Doc.

36. On October 20, 2021, Liverpool filed his Third Amended Complaint (“TAC”), which

again relied exclusively on the September 3 Attack as the basis for relief. Doc. 56. On

December 27, 2021, Defendants moved to dismiss the TAC for failure to state a claim.

Doc. 61. On September 28, 2022, the Court granted Defendants’ motion to dismiss for

failure to state a claim against all Defendants, but granted Liverpool leave to amend.

Doc. 76 at 12 (the “September 2022 Order”).

Between October 2022 and January 2023, Liverpool repeatedly requested the

release of the DOC’s summaries of his 311 complaints to the Call Center, Doc. 77; Doc.

91, and video surveillance from Rikers Island, Doc. 87; Doc. 93. Defendants produced

summaries from Liverpool’s 311 complaints, Doc. 79; Doc. 85; Doc. 94-1, and

represented that the DOC does not retain security camera footage for more than ninety

11 Liverpool later named John Doe #7 as “Captain Christian” (phonetically). Doc. 27 at 1. However,

Defendants were unable to identify John Doe #7, and the Court relieved Defendants of the obligation to

identify this John Doe. Doc. 53.

days, which prevented them from producing relevant video from Liverpool’s

incarceration at the AMKC, Doc. 89 at 2.

On January 20, 2023, Liverpool filed the FAC alleging that, while he was

incarcerated at the AMKC, the Defendants failed to protect him from—and even actively

facilitated—abuse by other inmates on multiple occasions (including the September 3

Attack). Doc. 95. On March 17, 2023, Defendants filed the instant motion to dismiss on

the basis that Liverpool’s claims are frivolous, untimely, or insufficient to state a claim

pursuant to Federal Rule of Civil Procedure 12(b)(6). Doc. 98. On June 15, 2023,

Liverpool, with the help of NYLAG, submitted his opposition to the instant motion. Doc.

112; Doc. 112-1.

II. LEGAL STANDARD

A. Federal Rule of Civil Procedure 12(b)(6)

When ruling on a motion to dismiss pursuant to Federal Rule of Civil Procedure

12(b)(6), the court must accept all factual allegations in the complaint as true and draw all

reasonable inferences in the plaintiff’s favor. Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir.

2014). The court is not required to credit “mere conclusory statements” or “threadbare

recitals of the elements of a cause of action.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)); see also id. at 681 (citing

Twombly, 550 U.S. at 551). “To survive a motion to dismiss, a complaint must contain

sufficient factual matter . . . to ‘state a claim to relief that is plausible on its face.’” Id.

(quoting Twombly, 550 U.S. at 570). A claim is facially plausible “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).

More specifically, the plaintiff must allege sufficient facts to show “more than a sheer

possibility that a defendant has acted unlawfully.” Id. (citing Twombly, 550 U.S. at 556).

If the plaintiff has not “nudged [his] claims across the line from conceivable to plausible,

[the] complaint must be dismissed.” Twombly, 550 U.S. at 570; accord Iqbal, 556 U.S. at

680.

The question in a Rule 12 motion to dismiss “is not whether a plaintiff will

ultimately prevail but whether the claimant is entitled to offer evidence to support the

claims.” Sikhs for Just. v. Nath, 893 F. Supp. 2d 598, 615 (S.D.N.Y. 2012) (quoting

Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 278 (2d Cir. 1995)) (internal

quotation marks omitted). “[T]he purpose of Federal Rule of Civil Procedure 12(b)(6) is

to test, in a streamlined fashion, the formal sufficiency of the plaintiff’s statement of a

claim for relief without resolving a contest regarding its substantive merits,” and without

regard for the weight of the evidence that might be offered in support of the plaintiff’s

claims. Halebian v. Berv, 644 F.3d 122, 130 (2d Cir. 2011) (internal quotation marks

omitted).

B. Pro Se Plaintiff

The Court holds submissions by pro se litigants to “less stringent standards than

formal pleadings drafted by lawyers.” Hughes v. Rowe, 449 U.S. 5, 9 (1980) (per

curiam) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)); see also Young v. N.Y.C.

Dep’t of Educ., No. 09-cv-6621 (SAS), 2010 WL 2776835, at *5 (S.D.N.Y. July 13,

2010) (noting that the same principles apply to briefs and opposition papers filed by pro

se litigants). Although “pro se status ‘does not exempt a party from compliance with

relevant rules of procedural and substantive law,’” Triestman v. Fed. Bureau of Prisons,

470 F.3d 471, 477 (2d Cir. 2006) (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir.

1983)), courts read the pleadings and opposition papers submitted by pro se litigants

“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)). The obligation to read a pro se litigant’s pleadings

leniently “applies with particular force when the plaintiff’s civil rights are at issue.”

Jackson v. NYS Dep’t of Lab., 709 F. Supp. 2d 218, 224 (S.D.N.Y. 2010) (citing

McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004)).

III. DISCUSSION

A. Monell Claim

Liverpool acknowledges that his allegations are insufficient to state a § 1983

claim against the City. Doc. 112 at 16; Monell v. Dep’t of Soc. Servs., 436 U.S. 658

(1978). Thus, Liverpool’s claim against the City is dismissed.

B. Liverpool’s Failure to Protect Claims

An individual may sue officials who, “acting under color of state law,” West v.

Atkins, 487 U.S. 42, 48 (1988), have “depriv[ed him] of any rights, privileges, or

immunities secured by the Constitution and laws” of the United States. 42 U.S.C. §

1983. Section 1983 “itself creates no substantive rights; it provides only a procedure for

redress for the deprivation of rights established elsewhere.” Sykes v. James, 13 F.3d 515,

519 (2d Cir. 1993) (citing City of Okla. City v. Tuttle, 471 U.S. 808, 816 (1985)). Where

a pretrial detainee alleges that correction officers failed to protect him from other inmates,

his claim arises under the Due Process Clause of the Fourteenth Amendment. Darnell v.

Pineiro, 849 F.3d 17, 29 (2d Cir. 2017). However, 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.” Farmer v. Brennan, 511 U.S. 825, 834

(1994). A prison official violates constitutional protections when: (1) the alleged

deprivation is “objectively, sufficiently serious,” and (2) the alleged perpetrator possesses

a “sufficiently culpable state of mind.” Id. (internal quotations omitted). In prisons,

courts have defined the requisite culpability as “‘deliberate indifference’ to the health and

safety of inmates.” Randle v. Alexander, 960 F. Supp. 2d 457, 470 (S.D.N.Y. 2013)

(citing Farmer, 511 U.S. at 834).

The September 3 Attack

Liverpool’s primary claim is—and has always been—that the Defendants failed to

protect him from Bethune, which enabled the September 3 Attack. See Doc. 1; Doc. 95 at

1. In its September 2022 Order, the Court explained that Liverpool’s familiarity with his

attacker along with the prior threats and attacks he endured “could conceivably raise a

factual question as to whether a substantial risk of serious harm existed.” Doc. 76 at 7.

In the FAC, Liverpool maintains that he was familiar with Bethune and had been

previously threatened. Doc. 95 at 7. Accordingly, the Court similarly finds that

Liverpool has raised a factual question as to whether a substantial risk of harm existed,

which is sufficient to satisfy the objective prong of the Farmer test on this motion.

Under the subjective prong of the Farmer test, a prisoner can recover if an injury

was the product of a prison official’s “purposeful subjection of the prisoner to a

‘substantial risk of serious harm’ or from the official’s deliberate indifference to that

risk.” Fischl v. Armitage, 128 F.3d 50, 55 (2d. Cir. 1997) (quoting Farmer, 511 U.S. at

834); see also Hayes v. N.Y.C. Dep’t of Corr., 84 F.3d 614, 620 (2d Cir. 1996) (“[T]o state

a cognizable section 1983 claim, the prisoner must allege actions or omissions sufficient

to demonstrate deliberate indifference; mere negligence will not suffice.”). An official

acts with deliberate indifference when he intentionally imposes the condition or

“recklessly fail[s] to act with reasonable care to mitigate the risk that the condition

pose[s] . . . even though [he] kn[ows], or should [] know[], that the condition pose[s] an

excessive risk to health or safety.” Darnell, 849 F.3d at 35. Applying this test in its

September 2022 Order, the Court dismissed Liverpool’s claim against all Defendants

because he failed to allege facts sufficient to establish that any of the Defendants knew or

should have known of a substantial risk of serious harm to him. Doc. 76 at 8. Therefore,

the Court found that Liverpool failed to allege they acted with deliberate indifference to

that risk. Id.

Defendants argue that Liverpool has again failed to allege that Defendants Smalls,

Johnson, Foo, Vallejos, or Hossen were deliberately indifferent to a risk of serious harm

to him. Doc. 99 at 18. With respect to Officer Vaughn, Defendants urge the Court to find

that any new allegations from the FAC relating to her alleged conduct prior to the

September 3 Attack are untimely. Id. at 14–16. Alternatively, Defendants contend that

Liverpool’s claim regarding the September 3 Attack should be dismissed against all

Defendants because it is factually frivolous. Id. at 16–17.

a. Liverpool’s Claims Against Defendants Smalls, Johnson, Foo, Vallejos,

Hossen, and Hope12 are Dismissed

Defendants assert that Liverpool has not alleged that any Defendant other than

Officer Vaughn knew about or should have known about an excessive risk to his safety

when he was locked in his cell at night. Id. at 18. Specifically, they point out that

Liverpool does not allege any of them witnessed any attacks or had any firsthand

knowledge of the abuse he allegedly suffered. Doc. 115 at 11. Defendants also argue that

Liverpool fails to assert that any of these Defendants received or knew about his prior

grievances. Doc. 99 at 18. Even if they had received such grievances, Defendants argue

that would not be enough. Id.; Mateo v. Fischer, 682 F. Supp. 2d 423, 430 (S.D.N.Y.

2010) (“[T]he receipt of letters or grievances, by itself, does not amount to personal

involvement.”).

Liverpool argues that these Defendants were reckless in failing to mitigate the risk

of harm that they should have known Liverpool was facing. Doc. 112 at 13. In

opposition to the instant motion, Liverpool asserts that the Defendants knew about the

threat to him “for well over a year before the incidents” because they “directly observed

12 Although Captain Hope has not appeared in this action, she is similarly situated in all material respects to

Defendants Smalls, Johnson, Foo, Vallejos, and Hossen. Thus, the Court considers Defendants’ arguments

as applicable to Captain Hope. Cf. Finkel v. Romanowicz, 577 F.3d 79, 84 (2d Cir. 2009) (requiring courts

to evaluate an absent defendant’s liability as a matter of law before issuing a judgment against her).

the attacks by other prisoners, were told of the attacks by [Liverpool], or were aware of

the attacks through grievances” he filed.13 Id. at 14. Liverpool also claims that they

knew that inmates left their cells if they were not properly locked, id. at 14–15, and that

he had to be moved from two prior housing areas due to abuse he allegedly suffered, Doc.

112-1 at 2. Liverpool further asserts that he filed numerous grievances with these

Defendants regarding Bethune. Doc. 112 at 15. With this knowledge, Liverpool alleges,

the Defendants failed to protect him from the September 3 Attack by failing to ensure

inmates were properly locked in their cells. Id. at 14.

The Court finds that Liverpool has failed to allege that these Defendants were

“deliberately indifferent” to the substantial risk of serious harm he was facing. The FAC

is devoid of any allegation that these Defendants paid inmates to assault him, that they

received Liverpool’s grievances, or that they witnessed any of these assaults, except in

purely conclusory terms in opposition to the instant motion. See generally Doc. 95. In

fact, Liverpool never mentions any of these Defendants in the FAC in connection with

prior assaults or attacks. Id. The FAC contains only conclusory allegations that the

Defendants were “well aware” of the risks to his safety. Id. at 2. However, these

allegations are completely lacking in detail, including the dates any prior attacks occurred

and the names of the Defendants who witnessed them or received grievances about them.

See generally Doc. 95. Thus, Liverpool’s claim against these Defendants constitutes an

allegation that they acted negligently in failing to properly secure other inmates on the

night of September 2, 2018. This claim amounts to an “isolated omission to act” without

any “evil intent, or recklessness.” Knowles v. N.Y.C. Dep’t of Corr., 904 F. Supp. 217,

221 (S.D.N.Y. 1995) (quoting Ayers v. Coughlin, 780 F.2d 205, 209 (2d Cir. 1985)).

Having failed to establish that any of these Defendants were “deliberately indifferent” to

13 In the FAC, Liverpool does not claim that any Defendant other than Officer Vaughn witnessed an attack

against him or were told about any attacks against him. See generally Doc. 95.

a risk he was facing, Liverpool’s failure to protect claim is dismissed with respect to

Defendants Smalls, Johnson, Foo, Vallejos, Hossen, and Hope.

b. Liverpool’s Claim Against Officer Vaughn is Not Dismissed

In the FAC, Liverpool makes several new allegations that impact the Court’s

analysis of whether Officer Vaughn, in enabling the September 3 Attack, acted with a

culpable mental state under the subjective prong of the Farmer test. These allegations

were not included in the previous iterations of the complaint. Specifically, Liverpool now

alleges that Officer Vaughn witnessed prior instances where Bethune attacked him, Doc.

95 at 7, allowed Castillo to contaminate his food, id. at 8, encouraged other officers to

harass him, id. at 4, and paid inmates to assault him, id. Meanwhile, Liverpool alleges,

Officer Vaughn laughed about these abuses without intervening. Id. at 5.

As the Court describes in greater detail below, these new allegations may not form

the basis for new claims because the statute of limitations period for such claims has

expired. However, the Court may consider these allegations in deciding whether

Liverpool has sufficiently plead that Officer Vaughn acted with a culpable mental state

regarding the September 3 Attack. Having alleged that Officer Vaughn knew about the

prior assaults and that she turned off the lights, which enabled the September 3 Attack,

Liverpool sufficiently states that Officer Vaughn acted with deliberate indifference to his

safety under the subjective prong of the Farmer test. See Hayes, 84 F.3d at 620; Darnell,

849 F.3d at 35 (providing that deliberate indifference is satisfied when the official

intentionally imposes or fails to mitigate the substantial risk of harm a prisoner is facing).

c. Liverpool’s Claim Regarding the September 3 Attack is Not Frivolous

Defendants also argue that the FAC should be dismissed against all Defendants

because the facts alleged therein are frivolous. Doc. 99 at 16–17. Defendants compare

Liverpool’s claim to one where a plaintiff alleged correction officers rewarded other

inmates for infecting him with bodily fluids and poison. Dorsey v. Fisher, No. 09-cv-

1011 (GLS), 2010 WL 2008966, at *2 (N.D.N.Y. May 19, 2010). There, the court

dismissed the complaint after finding plaintiff’s allegations to be “so outrageous and

unbelievable as to be factually frivolous.” Id. at *14. Defendants argue that Liverpool’s

allegations are similarly delusional and should thus meet the same fate. Doc. 115 at 10.

Specifically, considering Liverpool’s clarification that his cell had a door with an open

slot for food (and was not one with metal bars as Defendants previously assumed),

Defendants argue that it is “logistically improbable” that an inmate threw cleaning fluids

through the open slot and into Liverpool’s eyes while he was sleeping. Doc. 99 at 16.

Liverpool argues that Defendants fail to meet the very high bar required of them

to enable the Court to dismiss a claim for factual frivolity. Doc. 112 at 10. Although the

record is silent as to the size of the food slot, Liverpool points out that it is designed to

allow objects to pass through it. Id. at 11. Thus, Liverpool concludes, it is not

improbable that an inmate could reach through the food slot with a cup of bleach in his

hand and throw the cup a few feet towards Liverpool’s bed. Id.

The Court finds that Defendants have failed to demonstrate that Liverpool’s claim

regarding the September 3 Attack is frivolous. To enable the Court to dismiss a claim for

factual frivolity, Defendants must show that the facts are not merely “unlikely” but rather

“clearly baseless,” “fanciful,” or “delusional.” Denton v. Hernandez, 504 U.S. 25, 32–33

(1992). Defendants do not dispute Liverpool’s allegation that inmates sometimes place

obstructions in their cell doors to enable them to exit their cells at night. See generally

Doc. 99. Additionally, it is not fanciful or delusional that Bethune—having placed such

an obstruction in his cell door—exited his cell, reached through the food slot in

Liverpool’s cell door with a cup of cleaning fluid, and threw the fluid towards

Liverpool’s face, splashing some of it into his eyes. Liverpool has satisfied the Farmer

test with respect to Officer Vaughn, and the Court has determined his claim is not

frivolous. Thus, his claim against Officer Vaughn regarding the September 3 Attack

survives the Defendants’ motion.

Liverpool’s Additional Failure to Protect Claims

Liverpool states three new claims in the FAC that do not appear in his earlier

complaints. See generally Doc. 95. Defendants urge the Court to dismiss these

additional claims as time-barred pursuant to Federal Rule of Civil Procedure 15(c)(1)(B).

Doc. 99 at 14. The statute of limitations for § 1983 actions filed in New York is three

years. Hogan v. Fischer, 738 F.3d 509, 517 (2d Cir. 2013). Thus, for conduct that

occurred on September 6, 2018, the statute of limitations would ordinarily expire on

September 6, 2021.14 Defendants acknowledge that courts in this Circuit “have applied

tolling orders issued by New York State Governor [Andrew Cuomo] during the

coronavirus pandemic to federal filing deadlines.” Doc. 99 at 14. Defendants calculate

(and Liverpool does not dispute) that an extension of 229 days would appropriately

account for these tolling orders. Id. Thus, applying this extension, a statute of limitations

that expired on September 6, 2021, would extend to April 23, 2022.15

Notwithstanding the statute of limitations, a plaintiff is entitled to amend a

complaint to add a claim that arises out of the “conduct, transaction, or occurrence set

out—or attempted to be set out—in the original pleading.” Fed. R. Civ. P. 15(c)(1)(B).

In determining whether a new claim relates back to the original pleading, “the central

inquiry is whether adequate notice of the matters raised in the amended pleading has been

given to the opposing party within the statute of limitations ‘by the general fact situation

alleged in the original pleading.’” Stevelman v. Alias Rsch. Inc., 174 F.3d 79, 86–87 (2d

Cir. 1999) (quoting Rosenberg v. Martin, 478 F.2d 520, 526 (2d Cir. 1973)). In other

words, the “basic claim must have arisen out of the conduct set forth in the original

pleading.” Slayton v. Am. Express Co., 460 F.3d 215, 228 (2d Cir. 2006) (internal

14 All of Liverpool’s claims relate to his period of incarceration at the AMKC, Doc. 95, which ended on

September 6, 2018. Doc. 94-1 at 62.

15 Defendants conclude that February 10, 2022, would be the applicable expiration date for conduct that

occurred on September 6, 2018. See Doc. 99 at 14. The Court is unclear how Defendants arrived at this

date, which is only 157 days after September 6, 2021. In any event, the discrepancy is irrelevant, as

Liverpool’s challenged allegations were made after the later date of April 23, 2022.

quotations omitted); Oliner v. McBride’s Indus., Inc., 106 F.R.D. 9, 12 (S.D.N.Y. 1985)

(finding that the Court must determine whether there is a “common core of operative

facts linking the amendments and the original complaint”). A “new legal

theory . . . premised upon the same set of facts,” relates back to the timely complaint.

Maccharulo v. Gould, 643 F. Supp. 2d 587, 593 (S.D.N.Y. 2009); see also Oliner, 106

F.R.D. at 12 (finding that new allegations, which “amplify” or “specify” those set forth in

the original pleading relate back). However, if the “amended complaint relies on a whole

new set of . . . operative facts not at issue in the original complaint,” it is appropriate for

the Court to dismiss the claim as untimely. Avila v. Riexinger & Assocs., LLC, 644 F.

App’x 19, 23 (2d Cir. 2016) (internal quotations omitted).

Defendants do not dispute that Liverpool’s claim regarding the September 3

Attack is timely, as Liverpool filed his initial complaint on June 17, 2020, well within the

limitations period. Doc. 1. However, Defendants argue that Liverpool’s newly plead

allegations are time-barred because they do not relate back to his original complaint.16

Doc. 99 at 14–16. Liverpool counters that these allegations are not newly alleged, but

rather are amplifications of his earlier complaints. Doc. 112 at 7.

a. Liverpool’s Claim that Officers Paid Inmates to Abuse Him is Untimely

Defendants first take issue with Liverpool’s claim that Officer Vaughn paid

inmates to assault him. Doc. 99 at 15. Defendants argue this allegation is “categorically

different” than Liverpool’s prior complaints, none of which mentioned officers

encouraging or provoking other inmates to attack him. Id. Instead, Defendants argue that

Liverpool’s first four complaints focused solely on the officers’ purported negligence in

failing to ensure that Bethune’s cell was locked, which enabled the September 3 Attack.

Id.; Doc. 115 at 6. Defendants acknowledge that Liverpool previously, in opposition to

Defendants’ motion to dismiss the TAC, alleged that officers similarly paid inmates to

16 Liverpool does not contest that any claim based on the DOC’s denial of his vegan food is time-barred.

Doc. 112 at 3 n.3.

assault him. Doc. 71 at 1. However, Defendants argue that this allegation was not made

in a pleading. Doc. 99 at 15. Defendants also highlight that the opposition was filed in

August 2022, which was itself beyond the statute of limitations for bringing a claim

based on the alleged conduct, which expired in April 2022. Id. at 15–16.

Liverpool contends that this claim is traceable back to his original complaint, in

which he alleged that he was harmed as a “result of [the Defendants’] actions or lack

[thereof],” Doc. 1 at 4, namely, the Defendants’ failure to prevent prisoners from abusing

him, Doc. 112 at 7. Liverpool argues that these actions remained at the core of each of

his complaints, but that the FAC merely amplifies the allegation by transforming the

Defendants’ mental state from unintentional to intentional. Id. at 8.

The Court finds that any claim that the Defendants paid or provoked inmates to

abuse Liverpool is untimely. In the initial complaint, Liverpool asserts that the

Defendants “knew or should have known” that he would be harmed by their actions.

Doc. 1 at 4. But the initial complaint was based only on the September 3 Attack.

Nothing about this statement—nor anything else in Liverpool’s first four complaints—

alerts the Defendants to the possibility that Liverpool would also attempt to hold them

liable for allegedly encouraging and compensating inmates to harass and abuse him. See

generally Doc. 1; Doc. 35; Doc. 36; Doc. 56. To allege that the Defendants provoked

inmates to abuse and harass Liverpool is not a “new legal theory . . . premised upon the

same set of facts,” but rather an entirely new set of facts to those alleged in the first four

complaints. Maccharulo, 643 F. Supp. 2d at 593. Thus, the Court finds that Liverpool’s

allegation that officers paid inmates to harass and abuse him on a regular basis is not part

of the “common core of operative facts” that links the FAC back to the earlier complaints.

Avila, 644 F. App’x at 23; Oliner, 106 F.R.D. at 12. Therefore, this claim is dismissed as

untimely.

b. Liverpool’s Claim that Defendants Failed to Protect Him From Bethune and

Castillo When They Threw Urine, Feces, and Objects at Him Apart from the

September 3 Attack is Untimely

Defendants also contend that Liverpool’s new allegation that Bethune and Castillo

threw urine, feces, and objects into his cell (separate from the September 3 Attack) is

unrelated to his initial complaint. Doc. 99 at 15. Defendants argue that the earlier

complaints, in which Liverpool alleged that the Defendants enabled Bethune to attack

him with cleaning fluids on September 3, 2018, did not put them on notice of additional

assaults he allegedly suffered. Doc. 115 at 8.

Liverpool asserts that the additional assaults he endured from Bethune and

Castillo were part of the same “campaign of assaults and harassment by his fellow

prisoners.” Doc. 112 at 9. Thus, he argues they relate back to the original complaint

where he alleged that he was “harassed, threatened, and assaulted by numerous inmates

on a continuous basis.” Doc. 1 at 5. Liverpool also confusingly argues that Defendants

seek to dismiss his claim merely because he identified additional substances used in the

assault he already alleged. Doc. 112 at 8–9. Liverpool points to the TAC, where he

asserted that Bethune assaulted him with “a mixture of cleaning fluids, et al.” Doc. 56 at

2 (emphasis added). Thus, he argues that Defendants were on notice that he was

assaulted with feces, urine, and objects in addition to cleaning fluids. Accordingly, these

allegations relate back to the TAC because he “need not have specified . . . every fluid or

object that he was assaulted with.” Doc. 112 at 8–9.

However, the FAC does not merely identify different substances that were used in

the September 3 Attack, as Liverpool suggests, but rather describes entirely separate

attacks for which he intends to hold Defendants liable. Doc. 95 at 5. Thus, Liverpool’s

use of the phrase “et al.” in the TAC to describe the fluids that were thrown at him during

the September 3 Attack is irrelevant to determining whether these newly pleaded attacks

relate back to the prior complaints. Liverpool never identified any of these other assaults

in the prior complaints.17 See generally Doc. 1; Doc. 35; Doc. 36; Doc. 56. Thus, by

claiming them now, Liverpool is not asserting a different legal theory but rather

attempting to bring an entirely new claim based on a new set of facts not previously

mentioned for which the Defendants could not have anticipated being held liable.

Maccharulo, 643 F. Supp. 2d at 593. Thus, the Court finds that any claim Liverpool

intended to bring regarding these other assaults does not relate back to his earlier, timely

complaints.

c. Liverpool’s Claim that Castillo Tampered with His Food is Untimely

Finally, Defendants argue that Liverpool’s allegation that Officer Vaughn allowed

inmates to ejaculate into his food is completely unrelated to Liverpool’s earlier

complaints, which focused on the September 3 Attack. Doc. 115 at 6. Liverpool

responds that Castillo’s tampering with his food was part of the same “campaign of

assaults and harassment by his fellow prisoners,” Doc. 112 at 9, and relates back to his

allegation that he was “harassed, threatened, and assaulted by numerous inmates on a

continuous basis,” Doc. 1 at 6.

The Court finds that this also is an entirely new fact that in no way is connected to

the September 3 Attack. Although Liverpool may have claimed to have been assaulted

on several instances in his original complaint, Liverpool did not state an intention to hold

Defendants liable for those earlier assaults. See generally Doc. 1. Thus, there is no link

that connects this allegation to one that was timely pleaded in any of the four prior

complaints. Therefore, any claim that Liverpool sought to bring related to Defendants’

failure to protect him from this incident is dismissed as untimely.

17 The Court notes that none of the thirteen 311 complaints Liverpool filed during his incarceration at the

AMKC mention Bethune, Castillo, or any assaults he allegedly endured other than the 311 complaint

regarding the September 3 Attack. See Doc. 94-1.

C. Qualified Immunity

Defendants argue that even if the Court finds Liverpool has stated a Fourteenth

Amendment failure to protect claim, it should grant the individual Defendants qualified

immunity. Doc. 99 at 22. As the Court stated in its September 2022 Order:

A government official sued in his individual capacity is entitled to

qualified immunity (1) if the conduct attributed to him was not pro-

hibited by federal law; (2) where the conduct was so prohibited, if

the plaintiff’s right not to be subjected to such conduct by the de-

fendant was not clearly established at the time it occurred; or (3) if

the defendant’s action was objectively legally reasonable in light of

the legal rules that were clearly established at the time it was taken.

Doc. 76 at 9 (citing Manganiello v. City of N.Y., 612 F.3d 149, 164 (2d Cir. 2010)). In its

September 2022 Order, the Court found that even if Liverpool had sufficiently alleged a §

1983 claim, the individual Defendants were entitled to qualified immunity because

Liverpool failed to allege that any of them acted unreasonably. Id.

Defendants urge the Court to reach the same result here because it was objectively

reasonable for Defendants to believe that Liverpool did not face a substantial risk of

serious harm while he was locked in his own cell. Doc. 99 at 22. Thus, they argue that

even if they were negligent in failing to check the cell doors for obstructions, they did not

act unreasonably. Id. Defendants contend that, at the very least, the individual

Defendants other than Officer Vaughn are entitled to qualified immunity even if she is

not. Doc. 115 at 12. Defendants argue that apart from conclusory assertions, Liverpool

never alleged that any Defendants except for Officer Vaughn knew of any prior attacks.

Id. Liverpool counters that it was unreasonable for the officers to believe he was safe in

his cell when similar assaults occurred on six other occasions. Doc. 112 at 16. Thus,

Liverpool claims, the Defendants acquiesced in the repeated assaults. Id.

The Court finds that Defendants Smalls, Johnson, Foo, Vallejos, Hossen, and

Hope are entitled to qualified immunity. Under the third prong of the Manganiello test,

Liverpool must allege facts demonstrating that these Defendants acted “with deliberate

indifference toward the safety of the prisoner.” Gordon v. City of N.Y., No. 05-cv-0351

(PR), 2005 WL 2899863, at *1 (2d Cir. Nov. 3, 2005) (citing Hayes, 84 F.3d at 620–21).

As previously discussed, Liverpool failed to allege with specificity that any of these

Defendants knew of any prior attacks. Thus, Liverpool has failed to allege that they acted

unreasonably or with deliberate indifference to his safety by neglecting to check the cell

doors for obstructions. The substantial deference due to prison officials allows them to

use their professional judgment to reach experience-based conclusions that work to

further prison objectives. Beard v. Banks, 548 U.S. 521, 533 (2006). Thus, Defendants

Smalls, Johnson, Foo, Vallejos, Hossen, and Hope are entitled to qualified immunity with

respect to Liverpool’s claims.

However, the Court finds that Officer Vaughn is not entitled to qualified immunity

because it cannot find that her actions, as alleged in the FAC, were “objectively, legally

reasonable.” Manganiello, 612 F.3d at 164. In the FAC, Liverpool newly alleges that

Officer Vaughn witnessed similar assaults that Liverpool suffered prior to the September

3 Attack and knew that Liverpool was the target of substantial abuse by other inmates and

staff. Doc. 95 at 3–5, 7–8. With this knowledge, Officer Vaughn allegedly turned off the

hallway lights and acquiesced in the September 3 Attack. Id. at 6. Thus, Officer Vaughn

has not proven that her actions, as alleged in the FAC, were reasonable to entitle her to

qualified immunity on this motion.

D. Leave to Amend the Complaint

Liverpool has requested leave to amend the FAC. Doc. 112 at 17. Courts are

instructed to “freely give leave [to amend] when justice so requires.” Fed. R. Civ. P.

15(a)(2). The Second Circuit also urges district courts to provide pro se litigants the

opportunity to amend a complaint when there is any indication that a valid claim might

be stated. Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000). However, “it is within

the sound discretion of the district court to grant or deny leave to amend” for “good

reason, including undue delay, bad faith, futility of amendment, or undue prejudice to the

opposing party.” McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir. 2007).

“Generally, the failure to fix deficiencies in an initial pleading, after being provided

notice of those deficiencies, is alone sufficient ground to deny leave to amend.” Bischoff

v. Albertsons Cos., Inc., No. 22-cv-4961 (CS), 2023 WL 4187494, at *7 (S.D.N-Y. June

26, 2023) (citing Nat’! Credit Union Admin. Bd. v. U.S. Bank Nat’l Ass’n, 898 F.3d 243,

257-58 (2d Cir. 2018)).

Liverpool filed the initial complaint on June 17, 2020—over three years ago.

Doc. 1. The Court has granted Liverpool leave to amend his complaint four times,

including once after the Court issued an opinion on the merits of his claim. Doc. 1; Doc.

35; Doc. 36; Doc. 56; Doc. 95. Additionally, the Court has allowed Liverpool’s § 1983

claim to proceed against Officer Vaughn. The Court declines to grant Liverpool another

opportunity to fix the deficiencies in his complaint with respect to the remaining

Defendants. Therefore, Liverpool’s FAC will be dismissed with prejudice as to all

Defendants except for Officer Vaughn.

IV. CONCLUSION

For the reasons set forth above, Defendants’ motion to dismiss is DENIED as to

Officer Vaughn but GRANTED with prejudice as to the remaining Defendants. The Clerk

of Court is respectfully directed to terminate the City of New York, Kisa Smalls,

Assistant Deputy Warden Ainsworth Foo, Captain Delilah Hope, Ernesto Vallejos, Officer

Milton Hossen, and Deputy Warden Chantelle Johnson as defendants and the motion,

Doc. 98, and mail a copy of this Order to Liverpool.

It is SO ORDERED.

Pe Nero NewYork AY W_

~ EDGARDO RAMOS, U.S.DJ. 0

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