# Matagrano v. Levitt

> District Court, W.D. New York · March 16, 2022

URL: https://www.frixlaw.com/law-library/cases/10364743

## Case

- **Court:** District Court, W.D. New York
- **Decided:** March 16, 2022
- **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/10364743

## How later opinions describe it (automated extraction)

- reversing dismissal of claims against officer who provided blanket to suicidal inmate, which inmate used to commit suicide
- holding that a §1983 plaintiff “must directly plead and prove that each Government-official defendant, through the official’s own individual actions, has violated the Constitution.” (internal quotation marks and citation omitted)
- reversing district court’s grant of summary judgment to supervisory prison officials where inmate sent requests detailing threat of inmate assault to defendants and officials took no action
- holding that a prison official does not act in a deliberately indifferent manner towards an inmate unless he “knows of and disregards an excessive risk to inmate health or safety”

## Opinion text

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

MATTHEW JOHN MATAGRANO,

Plaintiff,
DECISION AND ORDER
v.
6:21-CV-06415 EAW

DR. JAQUELINE LEVITT, TERRANCE
MCANN, STEWART T. ECKERT, and
RANDY K. MOORE,

Defendants.

INTRODUCTION
Plaintiff Matthew John Matagrano (“Plaintiff”), an inmate in the custody of the New
York State Department of Corrections and Community Supervision (“DOCCS”), filed a
complaint on May 27, 2021, alleging that Dr. Jaqueline Levitt (“Levitt”), Wende
Correctional Facility (“Wende”) Superintendent Stewart T. Eckert (“Eckert”), and Chief
of the Forensic Mental Health Unit Margaret Stirk (“Stirk”) were deliberately indifferent
to a substantial risk of harm to Plaintiff, and that Sgt. Terrance McCann (“McCann”), Sgt.
Scott Lambert (“Lambert”), and Correctional Officer Randy Moore (“Moore”) failed to
intervene to mitigate a substantial risk of harm in violation of the Eighth Amendment to
the United States Constitution.1 (Dkt. 1). Plaintiff has voluntarily dismissed his claims

1 Levitt, Eckert, McCann, and Moore will be referred to collectively as “Defendants.”
against Lambert and Stirk.2 (Dkt. 17). Currently pending before the Court is Defendants’
motion to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).
(Dkt. 12). For the reasons set forth below, Defendants’ motion to dismiss is granted as to

Moore and is denied as to McCann, Levitt, and Eckert.
BACKGROUND
I. Factual Background
The following facts are taken from the complaint. The Court treats Plaintiff’s
allegations as true for purposes of the instant motion.

Plaintiff is an inmate in the custody of DOCCS who, from his entry into DOCCS
custody in 2013 until 2020, was housed primarily at Wende with intermittent placement at
the Central New York Psychiatric Center (“CNYPC”). (Dkt. 1 at ¶¶ 38, 39, 44, 51).
Inmates at Wende are issued a razor, which they must produce upon request by correctional
staff. (Id. at ¶¶ 41, 42). The purpose of this practice is to ensure accountability for razors

that are issued to inmates in order to prevent their misuse or distribution among inmates.
(See id. at ¶¶ 41-43).

2 Plaintiff submitted a notice of dismissal of his claims against Stirk and Lambert
pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i). (Dkt. 17). Because Rule
41(a)(1)(A)(i) permits a plaintiff to dismiss an action or part of an action before either an
answer or motion for summary judgment is filed, and “because only [a motion] to dismiss
ha[s] been filed here, plaintiff’s voluntary withdrawal is sufficient and does not require a
court order.” Doody v. Bank of Am., N.A., No. 3:19-CV-1191 (RNC), 2021 WL 4554056,
at *2 n.1 (D. Conn. Oct. 5, 2021) (citation omitted); see also Blaize-Sampeur v. McDowell,
No. 05-CV-4275 (JFB)(ARL), 2007 WL 1958909, at *2 (E.D.N.Y. June 29, 2007)
(“[D]istrict courts within the Second Circuit have since adopted the approach of the
majority of courts in other circuits—that is, that Rule 41(a) does not require dismissal of
the action in its entirety. . . .”).
Plaintiff has a number of chronic mental health conditions for which he is treated
with medication, and he has been hospitalized on a number of occasions. (Id. at ¶¶ 12, 16,
51, 67). Even when treated, Plaintiff struggles to concentrate, interact with others,

communicate, think, and talk. (Id.). These symptoms are exacerbated when Plaintiff is
under stress. (Id. at ¶ 12). While incarcerated, Plaintiff’s mental illnesses have led him to
harm himself and attempt suicide several times by removing his state-issued razor from its
sheath and cutting his forearm from his wrist to his elbow crease. (Id. at ¶ 13). Plaintiff
has visible scars on his forearms from these attempts. (Id. at ¶ 15). As a result of Plaintiff’s

suicidal behavior, he has been housed in mental health units for monitoring. (Id. at ¶ 16).
On or about September 18, 2017, Plaintiff requested to see clinicians at the CNYPC
satellite unit but was denied. (Id. at ¶ 54). Plaintiff then cut his left forearm to the wrist
using a DOCCS-issued razor, resulting in significant blood loss. (Id.). Correctional Officer
Matthew Murphy (“Murphy”) and Lambert discovered Plaintiff, removed him from his

cell, and secured him to a back board for medical transport. (Id. at ¶ 55). Murphy
confiscated Plaintiff’s DOCCS-issued razor. (Id. at ¶ 56). Plaintiff’s ambulatory health
record (“AHR”) related to this incident indicated: “[i]nmate with blood all over after using
state issued razor to cut his arm.” (Id. at ¶ 60).
AHRs memorialize all visits with doctors and nurses and each instance that a patient

submits a sick call slip. (Id. at ¶ 47). Plaintiff’s AHRs indicated that Plaintiff had a history
of self-harm, attempting suicide, and auditory hallucinations. (Id. at ¶ 52). They also
indicated that Plaintiff was hospitalized at CNYPC in 2005 and twice in 2006 after serious
suicide attempts. (Id. at ¶ 51).
On or about September 25, 2017, Plaintiff was returned to Wende and placed on
one-on-one watch. (Id. at ¶ 61). On September 25, 2017, Plaintiff began banging his head
and biting and pulling the sutures out of his arm wound. (Id. at ¶ 62). On October 2, 2017,

Plaintiff still had thoughts of self-harm. (Id. at ¶ 63). On or about October 4, 2017, Levitt
submitted commitment papers in the Erie County Supreme Court, seeking inpatient
psychiatric treatment for Plaintiff. (Id. at ¶ 64). Eckert also reviewed and signed the
commitment papers. (Id. at ¶ 66).
In a subsequent episode in April 2018, Plaintiff submitted a complaint pursuant to

the Prison Rape Elimination Act. (Id. at ¶ 70). On or about April 9, 2018, Plaintiff
requested that Nurse Mary Geary ensure that he be treated by CNYPC staff. (Id. at ¶ 71).
On both of the next two days, Plaintiff requested that another nurse and a correctional
officer ensure that he be seen by CNYPC staff. (Id. at ¶¶ 72, 73). Counsel from the Legal
Aid Society’s Prisoners’ Rights Project also requested that Plaintiff receive treatment. (Id.

at ¶ 74). Despite the requests, Plaintiff was not seen by CNYPC staff or clinicians and was
told that no mental health referrals had been made for Plaintiff. (See id. at ¶¶ 76, 79). As
a result, Plaintiff became agitated, harmed himself with a pair of toenail clippers, and
repeatedly banged his head into the bars of his cell. (See id. at ¶¶ 80-81). Plaintiff again
harmed himself in or about May 2018 after harassment by correctional staff. (Id. at ¶¶ 85,

87).
Plaintiff alleges that on June 23, 2019, Correctional Officers Voight and Burkhart
were passing out DOCCS-issued razors. (Id. at ¶ 96). Plaintiff refused to accept the razor
citing his previous instances of self-harm and suicide attempts. (Id. at ¶¶ 97, 99). McCann
insisted that Wende’s policy required that Plaintiff possess a razor. (Id. at ¶¶ 97, 98).
Subsequently, a mental health nurse, whom Plaintiff identifies as Jane Doe, directed that
Plaintiff be placed in observation. (Id. at ¶ 100). At the time, Plaintiff was neither

homicidal nor suicidal, nor did he pose a threat. (Id. at ¶ 101). On or about June 24, 2019,
he was released from observation to general population. (Id. at ¶ 102). Thereafter, Plaintiff
wrote to the director of risk management of CNYPC regarding his concerns about
possessing a razor. (Id. at ¶ 103). On or about June 25, 2019, Plaintiff also filed a grievance
at Wende challenging the mandatory policy. (Id. at ¶ 104). The grievance was denied.

(Id. at ¶ 115). Plaintiff appealed the denial to Eckert. (Id. at ¶ 116).
On or about June 30, 2019, McCann required that Plaintiff take a state-issued razor.
(Id. at ¶ 105). Plaintiff met with a mental health nurse to express his concerns regarding
the requirement that he possess a razor. (Id. at ¶ 106). She recommended that Plaintiff
hide the razor in a difficult-to-access location and took no other action. (Id. at ¶ 107). Also

on June 30, 2019, Plaintiff received notice that his grievance was denied by the first deputy
superintendent, and Plaintiff immediately appealed to the Central Office and to Executive
Director of CNYPC Deborah J. McCullough. (Id. at ¶¶ 117-19).
On or about August 2, 2019, Plaintiff had an epileptic seizure and urinated on
himself. (Id. at ¶ 122). Plaintiff alleges that guards transporting Plaintiff from the medical

unit after his seizure mocked him for having urinated on himself during the seizure and for
having previously harmed himself. (Id. at ¶ 123). Once in his cell, Plaintiff destroyed
various items including his toilet bowl and used his hearing aids to cut his wrists. (Id. at
¶¶ 124, 126).
As a result of this episode, Plaintiff was placed in observation and was treated by
Levitt, whom he told, with Moore present, that possessing a razor, consistent with
DOCCS’s policy, posed a danger because of his impulses to self-harm. (Id. at ¶¶ 125-29).

Levitt was Facility Health Services Director at Wende and served as Plaintiff’s primary
healthcare provider. (Id. at ¶¶ 23, 45). As part of this role, Levitt reviewed Plaintiff’s
AHRs on a regular basis. (See id. at ¶¶ 46, 50). Levitt recommended that Plaintiff direct
his concerns regarding the razor policy to mental health staff. (Id. at ¶ 130). Neither Levitt
nor Moore took any further steps regarding the razor policy. (Id. at ¶¶ 130-32).

On or about August 10, 2019, Corrections Officer Arthur D. Walls3 brought a razor
to Plaintiff’s cell and informed Plaintiff that he would receive a citation if he did not accept
the razor. (Id. at ¶ 133). Any time that Plaintiff was placed in general population at Wende,
he was issued a razor, which was replaced every Sunday. (Id. at ¶ 134). On October 13,
2019, Plaintiff used his DOCCS-issued razor to cut his arms. (Id. at ¶ 136). On November

15, 2019, as a result of a seizure and his admission to the infirmary, Plaintiff became
agitated and cut his arms again. (Id. at ¶¶ 138-41).
Plaintiff is currently housed at the Sullivan Correctional Facility, where a razor is
brought to him three times per week to shave. (Id. at ¶ 143). A staff member retrieves the
razor after 15 to 20 minutes. (Id.).

3 Plaintiff also refers to this individual as “Officer Wells.” (See, e.g., Dkt. 1 at ¶ 133).
II. Procedural Background
Plaintiff commenced the instant action on May 27, 2021. (Dkt. 1). On July 6, 2021,
Defendants filed a letter motion seeking an extension of time to file an answer to the

complaint (Dkt. 8), which the Court granted, requiring Defendants to answer or otherwise
respond to the complaint on or before August 6, 2021 (Dkt. 9). On August 6, 2021,
Defendants filed the instant motion to dismiss. (Dkt. 12). On August 30, 2021, Plaintiff
sought an extension of time to file a response (Dkt. 14), which the Court granted (Dkt. 15).
On September 1, 2021, Plaintiff filed his response to Defendants’ motion. (Dkt. 16). On

the same day, Plaintiff filed a notice of voluntary dismissal of his claims against Stirk and
Lambert. (Dkt. 17). On September 9, 2021, Defendants filed their reply. (Dkt. 18).
DISCUSSION
I. Defendants’ Rule 12(b)(6) Motion
Defendants seek dismissal of this action pursuant to Federal Rule of Civil Procedure

12(b)(6), challenging the adequacy of Plaintiff’s claims for violations of the Eighth
Amendment’s prohibition of cruel and unusual punishment. Plaintiff asserts two causes of
action under the Eighth Amendment and 42 U.S.C. § 1983. (See Dkt. 1 at ¶¶ 144-61).
First, Plaintiff alleges that Eckert and Levitt were deliberately indifferent to a substantial
risk of serious harm to Plaintiff. (Id. at ¶¶ 144-55). Second, Plaintiff alleges that Moore

and McCann failed to intervene to prevent harm to Plaintiff. (Id. at ¶¶ 156-61). The Court
will first address the challenges to the allegations against McCann and Moore and then the
allegations against Eckert and Levitt.
A. Legal Standard on Rule 12(b)(6) Motion
“In considering a motion to dismiss for failure to state a claim pursuant to Rule
12(b)(6), a district court may consider the facts alleged in the complaint, documents

attached to the complaint as exhibits, and documents incorporated by reference in the
complaint.” DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010). A court
should consider the motion by “accepting all factual allegations as true and drawing all
reasonable inferences in favor of the plaintiff.” Trs. of Upstate N.Y. Eng’rs Pension Fund
v. Ivy Asset Mgmt., 843 F.3d 561, 566 (2d Cir. 2016). To withstand dismissal, a claimant

must set forth “enough facts to state a claim to relief that is plausible on its face.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Turkmen v. Ashcroft, 589 F.3d 542,
546 (2d Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

“While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need
detailed factual allegations, a plaintiff’s obligation to provide the grounds of his
entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation
of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (alteration in
original) (internal quotations and citations omitted). “To state a plausible claim, the

complaint’s ‘[f]actual allegations must be enough to raise a right to relief above the
speculative level.’” Nielsen v. AECOM Tech. Corp., 762 F.3d 214, 218 (2d Cir. 2014)
(alteration in original) (quoting Twombly, 550 U.S. at 555).
B. Failure to Intervene Claims against McCann and Moore
As a preliminary matter, Plaintiff identifies the claims against McCann and Moore
as “failure to intervene” in the complaint (Dkt. 1 at 18), but he refers to the claim as “failure

to protect” in his response to Defendants’ motion to dismiss. (Dkt. 16 at 11). In some
instances, district courts within this Circuit have construed these claims as identical. See,
e.g., Harris v. City of N.Y., 16-CV-1214 (PKC)(JO), 2018 WL 4471631, at *9 n.16
(E.D.N.Y. Sept. 18, 2018); Green v. Westchester Cnty., 18-cv-09167 (NSR), 2019 WL
2568584, at *3 (S.D.N.Y. June 20, 2019).

However, this Court has treated the two types of claims as distinct. See, e.g.,
Gochnour v. Burri, 6:15-CV-06174 EAW, 2018 WL 10944594, at *3 (W.D.N.Y. July 9,
2018). Namely, a claim for failure to intervene arises when a prison official fails to
“intervene in a situation where another official is violating an inmate’s constitutional rights,
including the use of excessive force, in [his or her] presence.” Samuels v. Fischer, 168 F.

Supp. 3d 625, 646 (S.D.N.Y. 2016). A claim for failure to protect arises when an inmate
is incarcerated under conditions posing an unreasonable risk of serious harm and prison
officials exhibit deliberate indifference to that risk. Mazyck v. Keller, 531 F. Supp. 3d 630,
641 (W.D.N.Y. 2021) (citing Vega v. Semple, 963 F.3d 259, 273 (2d Cir. 2020)). Both
Plaintiff and Defendants construe Plaintiff’s claim as a failure to protect claim (see Dkt.

12-1 at 4-8; Dkt. 16 at 11-12), and the Court concurs that a failure to protect claim is the
proper styling. Accordingly, the Court will analyze Plaintiff’s claim under the standard
that applies to failure to protect claims.
Analysis of a failure to protect claim, as with other deliberate indifference claims,
“consists of an objective and a subjective component.” Farmer, 511 U.S. at 833-34, 837;
Lewis v. Siwicki, 944 F.3d 427, 430-31 (2d Cir. 2019). Objectively, the inmate must plead

that “conditions of confinement that objectively pose an unreasonable risk of serious harm
to their current or future health[.]” Vega, 963 F. 3d 259. “Subjectively, the official charged
with deliberate indifference must have acted with the requisite state of mind, the
‘equivalent of criminal recklessness.’” Lapierre v. Cnty. of Nassau, 459 F. App’x 28, 29
(2d Cir. 2012) (quoting Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996)).

Specifically, a plaintiff must establish that the prison official knew of a substantial risk to
inmate health or safety and nonetheless disregarded it. Farmer, 511 U.S. at 837. Deliberate
indifference is present when “the official knows of and disregards an excessive risk to
inmate health or safety; the official must both be aware of facts from which the inference
could be drawn that a substantial risk of serious harm exists, and he must also draw the

inference.” Id.
Plaintiff alleges that on a number of occasions, McCann forced Plaintiff to accept a
DOCCS-issued razor despite Plaintiff having informed McCann of his 31-year history of
self-harm, suicide attempts, auditory hallucinations, and the specific danger Plaintiff felt
possessing the razor posed to him. (Dkt. 1 at ¶¶ 92-93, 98-99, 105, 160). Plaintiff alleges

that he so informed McCann on two occasions. (Id. at ¶¶ 93, 99). Notwithstanding
Plaintiff’s protestations, McCann met with Plaintiff and insisted that Plaintiff must possess
the razor, and an exception would not be made. (Id. at ¶¶ 98, 160). Ultimately, McCann
required Plaintiff to take a DOCCS-issued razor. (Id. at ¶ 105).
As to Moore, Plaintiff alleges he informed Levitt in Moore’s presence that he could
not possess a razor in light of his impulses to self-harm when experiencing high stress. (Id.
¶ 129). Levitt recommended that Plaintiff address his concerns to mental health staff. (Id.

at ¶ 130). Moore did not remove the razor from Plaintiff’s cell or seek in any way to do
so. (Id. at ¶¶ 130-31).
Defendants present five challenges to Plaintiff’s allegations against McCann and
Moore. The Court addresses the first four of Defendants’ challenges in this section and
addresses Defendants’ assertion of qualified immunity in a subsequent section. First,

Defendants argue that Plaintiff has not alleged that McCann or Moore knew of a substantial
risk of harm or that they disregarded it. (Dkt. 12-1 at 4). However, Plaintiff has alleged
that he informed McCann that he felt that the mandate to keep a razor in his cell posed a
danger to him in light of his compulsive self-harming behavior. (Dkt. 1 at ¶¶ 93, 99, 129).
Although Defendants argue that Plaintiff denied being suicidal, homicidal, or suffering

from hallucinations (Dkt. 12-1 at 4), this is a mischaracterization of Plaintiff’s allegations.
Plaintiff does not allege that he denied being in such a state (see Dkt. 1 at ¶ 101). He
alleges only that he was neither suicidal, homicidal, nor experiencing hallucinations. (See
id.). Whether Plaintiff vocalized his mental state at the time or McCann or Moore were
aware that this was the case is unclear from the allegations set forth in the complaint, and

the Court must draw all inferences in Plaintiff’s favor.
Plaintiff has also adequately alleged that McCann disregarded the risk to Plaintiff’s
safety. Notwithstanding Plaintiff’s warnings, McCann approached Plaintiff multiple times,
mandating that he take a razor and not seeking any potential exception to the mandatory
razor policy. (Id. at ¶¶ 98, 105, 114). Contrary to Defendants’ arguments (see Dkt. 12-1
at 3-4), Plaintiff thus seeks to hold McCann responsible for his own conduct and not for
the conduct of his subordinates. See Converse v. City of Kemah, Tx., 961 F.3d 771, 778-

81 (5th Cir. 2020) (reversing dismissal of claims against officer who provided blanket to
suicidal inmate, which inmate used to commit suicide).
However, Plaintiff has not sufficiently alleged Moore’s deliberate indifference to an
unreasonable risk to Plaintiff. Plaintiff alleges Moore was present for a conversation
between Plaintiff and Levitt at which Plaintiff expressed his concern to Levitt regarding

the requirement that he possess a razor. The Court infers, as is required at this stage, that
Moore heard Plaintiff’s conversation with Levitt, and thus knew of a substantial risk to
Plaintiff. However, Plaintiff has not sufficiently alleged that Moore acted “purposefully or
maliciously to harm him,” nor has he plausibly alleged that Moore “acted with awareness
that plaintiff would suffer serious harm as a result of the defendant’s actions or inactions.”

Salahuddin v. Goord, 467 F.3d 262, 279-80 (2d Cir. 2006). In Moore’s presence, Levitt—
Plaintiff’s primary healthcare provider—recommended to Plaintiff that he address his
concerns to mental health staff. No reasonable factfinder could conclude that Moore, who
was merely present for Plaintiff’s conversation with his doctor, drew the inference that in
the absence of his intervention, Plaintiff would suffer serious harm. See id.; Farmer, 511

U.S. at 837. Accordingly, Plaintiff’s claim against Moore must be dismissed.
Second, Defendants argue that there is no reason for McCann and Moore to have
believed the risk to Plaintiff of possessing a razor was substantial. (Dkt. 12-1 at 4-5).
Because the Court has determined that Plaintiff’s claim against Moore must be dismissed,
it will address Defendants’ remaining arguments only with regard to McCann. Defendants
argue that because Plaintiff had previously harmed himself with implements other than a
razor, and did not seek removal of those items, possessing a razor did not constitute a

substantial risk of harm to him. (Dkt. 12-1 at 5). Whether other implements accessible to
Plaintiff may also have constituted a substantial risk of harm does not bear on whether
Plaintiff’s DOCCS-issued razor constituted a substantial risk of harm—especially where
Plaintiff alleges that he informed Wende officials that his razor posed a particular risk and
Plaintiff previously injured himself with a razor. Although this may be an argument as to

evidentiary weight, it is insufficient to warrant dismissal where Plaintiff has set forth
otherwise non-conclusory allegations sufficient to indicate liability at this stage. See
generally Capax Discovery Inc. v. AEP RSD Inv., LLC, 285 F. Supp. 3d 579, 590
(W.D.N.Y. 2018) (“[T]he court does not weigh the evidence on a motion to dismiss.”).
Third, Defendants argue that because mental health professionals had cleared

Plaintiff to return to general population where the mandatory razor rule applied, McCann
should be entitled to rely on this determination that the razor did not pose a substantial risk
to Plaintiff. (Dkt. 12-1 at 5-6). In support of this argument, Defendants cite two decisions
in which deliberate indifference claims were dismissed where correctional staff relied on
determinations made by medical staff. (Id.). In Brock v. Wright, the Second Circuit granted

summary judgment for the correctional facility superintendent as to Plaintiff’s deliberate
indifference claim where the superintendent denied a request for a medical consultation
and the regional medical director also denied the request. 315 F.3d 158, 164 (2d Cir. 2003).
In Ruggiero v. Canfield, the superintendent of Southport Correctional Facility denied the
plaintiff’s request for a tumor biopsy relying on a doctor’s determination that a biopsy was
not warranted under the circumstances. 14-CV-00307A(F), 2017 WL 9485692, at *10
(W.D.N.Y. Mar. 23, 2017), adopted, 2017 WL 5152178 (W.D.N.Y. Nov. 7, 2017).

In this case, unlike in Brock and Ruggiero, Plaintiff does not allege that he was
denied medical care. Moreover, whether mandatory possession of a razor poses a
substantial risk of harm to an inmate with a history of self-harm and suicide attempts does
not require specialized medical knowledge of the kind relied on in Brock or Ruggiero. No
information contained in the complaint indicates that mental health staff’s approval of

Plaintiff’s return to general population constitutes specific approval of Plaintiff’s
possession of a razor. Accordingly, McCann is not entitled to dismissal of Plaintiff’s claim
on this basis.
Fourth, Defendants argue that the possibility of harm to Plaintiff was neither active
nor imminent. (Dkt. 12-1 at 6). Defendants again argue that Plaintiff denied that he was

suicidal or homicidal around the time he refused to accept the DOCCS-issued razor. (Id.).
As noted above, this is a mischaracterization of Plaintiff’s allegations. Moreover, Plaintiff
expressed concern that the presence of a razor in his cell presented both a danger to him
and was a precipitating stressor to him in light of his history of self-mutilation and suicide
attempts. (Dkt. 1 at ¶¶ 97, 99, 101; Dkt. 12-1 at 10-11). To the extent that there is any

ambiguity in the imminence of the risk of suicide, at the motion to dismiss stage, the Court
draws all reasonable inferences in Plaintiff’s favor. See Trs. of Upstate N.Y. Eng’rs
Pension Fund, 843 F.3d at 566. Moreover, Plaintiff is not required to plead that he was an
active or immediate threat of suicide. See Farmer, 511 U.S. at 834; Lewis, 944 F.3d at
430-31.
For all these reasons, the Court does not find that Plaintiff has failed to plead a viable

failure to intervene claim as to McCann.
C. Deliberate Indifference Claims against Eckert and Levitt
Defendants challenge the sufficiency of Plaintiff’s allegations against Eckert and
Levitt and reiterate the challenges raised on behalf of McCann and Moore to Plaintiff’s
claims of deliberate indifference against Eckert and Levitt. The Court first addresses

Defendants’ challenges to the claim against Eckert and then the challenges to the claim
against Levitt.
Deliberate indifference under the Eighth Amendment encompasses a number of
theories of liability including deliberate indifference to a serious medical need. See Estelle
v. Gamble, 429 U.S. 97, 104 (1976); see also Farmer, 511 U.S. 825. Plaintiff clarifies in

his opposition to Defendants’ motion to dismiss that he asserts deliberate indifference to a
substantial risk of serious harm consisting of essentially identical elements as the
previously discussed failure to protect claims. (See Dkt. 16 at 11).
As discussed above, a plaintiff must allege and “show that he is incarcerated under
conditions posing a substantial risk of serious harm[,]” Farmer, 511 U.S. at 834 (citing

Wilson v. Seiter, 501 U.S. 294, 298 (1991)), and that “the official charged with deliberate
indifference must have acted with the requisite state of mind, the ‘equivalent of criminal
recklessness.’” Lapierre v. Cnty. of Nassau, 459 F. App’x 28, 29 (2d Cir. 2012) (quoting
Hathaway, 99 F.3d at 553). Specifically, a plaintiff must establish that the prison official
knew of a substantial risk to inmate health or safety and nonetheless disregarded it.
Farmer, 511 U.S. at 837 (holding that a prison official does not act in a deliberately
indifferent manner towards an inmate unless he “knows of and disregards an excessive risk

to inmate health or safety”). “[A] constitutional violation occurs only where the
deprivation alleged is ‘sufficiently serious[.]’” Id. at 825 (quoting Wilson, 501 U.S. at
298). Defendants do not challenge that Plaintiff has pleaded a sufficiently serious
deprivation for Eighth Amendment purposes. (See Dkt. 12-1 at 10-11).
Plaintiff sufficiently alleges that Eckert knew of and disregarded an excessive risk

to inmate health or safety. Farmer, 511 U.S. at 837; (see Dkt. 12-1 at 10-11). In 2017,
Eckert reviewed and signed commitment papers stating that Plaintiff posed a danger to
himself, specifically acknowledging that Plaintiff had attempted suicide and required
commitment. (Id. at ¶ 65, 66). Plaintiff further alleges that he appealed the denial of his
grievance challenging the mandatory razor policy to Eckert. (Dkt. 1 at ¶ 116). Although

the first deputy superintendent issued a response to Plaintiff’s grievance (id. at ¶ 117),
Plaintiff also alleges that the Prisoners’ Rights Project sent a letter to Eckert seeking that
the razor policy not be applied to Plaintiff and advocating for a change in the policy (id. at
¶¶ 110, 111). It is a reasonable inference that Eckert received and reviewed both Plaintiff’s
appeal and this letter. Plaintiff alleges that Eckert took no action regarding Plaintiff’s

concerns. (Id. at ¶ 154)
Plaintiff’s allegations sufficiently state a deliberate indifference claim under the
Eight Amendment. Although Eckert held a supervisory role at Wende, Plaintiff may only
hold Eckert liable for those acts he personally committed. See Tangreti v. Bachman, 983
F.3d 609, 612 (2d Cir. 2020) (holding that a §1983 plaintiff “must directly plead and prove
that each Government-official defendant, through the official’s own individual actions, has
violated the Constitution.” (internal quotation marks and citation omitted)). Here, Plaintiff

has sufficiently alleged that Eckert was on notice of the risk of harm to Plaintiff posed by
the mandatory razor policy, and he took no action to address it. See Morgan v. Dzurenda,
956 F.3d 84, 89 (2d. Cir. 2020) (reversing district court’s grant of summary judgment to
supervisory prison officials where inmate sent requests detailing threat of inmate assault to
defendants and officials took no action); Mazyck, 531 F.Supp.3d at 642 (holding plaintiff

stated failure to protect claim where he “alleged that he communicated specific information
relating to a risk of serious harm . . . and that defendant . . . had knowledge of this
information but chose to disregard the risk of harm to [p]laintiff”).
Plaintiff has also alleged sufficient facts to support the inference that Levitt knew
of a serious risk to Plaintiff’s safety and disregarded it. On or about August 2, 2019,

Plaintiff cut his wrists with his hearing aids. (Dkt. 1 at ¶¶ 122, 126). As a result, Levitt
examined him, at which time Plaintiff informed her of his concern that mandatory
possession of a razor posed a risk to him in light of his compulsive impulses to harm
himself and history of suicide attempts. (Dkt. 1 at ¶¶ 128, 129). As Plaintiff’s primary
physician, Levitt reviewed Plaintiff’s AHRs and was otherwise aware of Plaintiff’s history

of compulsive self-harm and suicide attempts through her role as his primary physician.
(Id. at ¶¶ 46-52). Although Defendants argue that Plaintiff told Levitt he was not actively
suicidal at the time of his examination (Dkt. 12-1 at 9), Plaintiff does not allege that he said
this to Levitt (Dkt. 1 at ¶¶ 129-30). Rather, Plaintiff alleges only that he conveyed to Levitt
his concern that mandatory razor possession posed to his safety. (See id.).
Plaintiff alleges that Levitt instructed him to raise his concerns regarding the razor

policy with Stirk and with mental health staff and took no other action. (Dkt. 1 at ¶ 130).
Based on Levitt’s role as Plaintiff’s primary physician, including routine review of
Plaintiff’s AHRs, and Levitt’s recommendation that Plaintiff be committed in 2017
because Plaintiff’s threats of suicide and self-harm posed a danger to Plaintiff (id. at ¶¶ 49,
50, 64), the Court cannot find as a matter of law that Levitt’s instruction to Plaintiff to

direct his concerns to mental health staff constituted a reasonable response to Plaintiff’s
concern that possessing a razor posed risks to his safety—especially where Levitt was
examining Plaintiff for a self-harm episode that occurred earlier that same day and Levitt
was familiar with Plaintiff’s long-running history of self-harm and suicide attempts.
Accordingly, Plaintiff has plausibly alleged that Plaintiff was incarcerated under

conditions posing a substantial risk of harm and that Levitt knew of and disregarded that
risk.
D. Qualified Immunity
Defendants argue that the mandatory razor policy has been neither struck down nor
challenged. (Dkt. 12-1 at 7, 10, 11). Therefore, Defendants argue, no Defendant could

have violated a clearly established constitutional right of which a reasonable person would
have been aware.4 (Id.). As such, Defendants assert that they should be shielded by
qualified immunity. (Id.). Plaintiff contends that qualified immunity is unavailable at the
motion to dismiss stage and notes that the decision on which Defendants rely is

procedurally inapposite to the instant matter. (Dkt. 16 at 18-19). Because the Court
dismisses Plaintiff’s claims against Moore, the Court will only analyze qualified immunity
as to McCann, Eckert, and Levitt.
“Qualified immunity shields public officials from liability for civil damages if their
actions were objectively reasonable, as evaluated in the context of legal rules that were

‘clearly established’ at the time.” Poe v. Leonard, 282 F.3d 123, 132 (2d Cir. 2002).
Contrary to Plaintiff’s assertion, qualified immunity is available at the motion to dismiss
stage. However “[d]efendants advancing a qualified-immunity defense at the motion to
dismiss stage ‘face[] a formidable hurdle.’” Neary v. Wu, 753 F. App’x 82, 84 (2d Cir.
2019) (quoting McKenna v. Wright, 386 F.3d 432, 434 (2d Cir. 2004)). “On such a motion,

‘the plaintiff is entitled to all reasonable inferences from the facts alleged, not only those
that support his claim, but also those that defeat the immunity defense.” Id. (citation and
quotation marks omitted). “With the benefit of those inferences, [the Court] then ask[s]
whether the plaintiff has pleaded “facts showing (1) that the official violated a statutory or
constitutional right, and (2) that the right was ‘clearly established’ at the time of the

4 Defendants argue that there was no basis for Eckert or Levitt “to believe the policy
was constitutional.” (Dkt. 12-1 at 10, 11). However, this is undoubtedly a typographical
error.
challenged conduct.” Id. (internal quotation marks omitted in original) (quoting Ganek v.
Leibowitz, 874 F.3d 73, 80 (2d Cir. 2017)).
“A clearly established right is one that is ‘sufficiently clear that every reasonable

official would have understood that what he is doing violates that right.’” Mullenix v. Luna,
577 U.S. 7, 11-12 (2015) (quoting Reichle v. Howards, 566 U.S. 658, 664 (2012). The
Supreme Court has clarified that a case directly on point is not required, “but existing
precedent must have placed the statutory or constitutional question beyond debate.” Id.
(quotation marks omitted) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)).

Several courts in this Circuit have recognized that a detainee’s right to be free from
deliberate indifference where defendants were aware of their suicide risk is clearly
established. See, e.g., Case v. Anderson, No. 16 Civ. 983, 2017 WL 3701863, at *17
(S.D.N.Y. Aug. 25, 2017) (qualified immunity unavailable in pretrial detainee suicide case
where plaintiff alleged defendants’ knowledge of suicide risk and their deliberate

indifference to that risk, since “the right of those in state custody ‘to be free from deliberate
indifference to [their] serious medical needs has been established for decades.’”) (quoting
Randle v. Alexander, 170 F. Supp. 3d 580, 596 (S.D.N.Y. 2016)); Outman v. Waldron, No.
9:14-CV-0540 (TJM/DEP), 2016 WL 11478231, at *6 (N.D.N.Y. Feb. 29, 2016), adopted,
2016 WL 1175235 (N.D.N.Y. Mar. 24, 2016) (finding clearly established DOCCS

inmate’s right to be free from deliberate indifference where officials knew of suicide risk);
see also Kelsey v. City of N.Y., No. 03-CV-5978, 2006 WL 3725543, at *9 (E.D.N.Y. Dec.
18, 2006) (“pretrial detainee’s right to be free from deliberate indifference by police
officers to suicide, while in custody, is a clearly established right.” (emphasis in original)),
aff’d, 306 F. App’x 700 (2d Cir. 2009).
As discussed above, Defendants dispute whether McCann, Levitt, and Eckert knew

of a substantial risk that possession of a razor presented to Plaintiff and that Plaintiff was
neither an active nor immediate threat of suicide. (See Dkt. 12-1 at 3-6). However, Plaintiff
directly informed McCann and Levitt that mandatory possession of a razor posed a risk to
him, and Plaintiff and the Prisoners’ Rights Project informed Eckert that the mandatory
razor policy posed a risk to Plaintiff. To the extent that any ambiguity remains as to

whether these Defendants knew of and disregarded a substantial risk to Plaintiff or that
Plaintiff was an active suicide risk, Plaintiff is entitled to all reasonable inferences to defeat
the qualified immunity defense. See Neary, 753 F. App’x at 84. As such, the Court
resolves this ambiguity in favor of Plaintiff that his suicide risk was sufficiently imminent
to defeat the assertion of qualified immunity at the motion to dismiss stage.

The Court is further unpersuaded by Defendants’ arguments that they are entitled to
qualified immunity because “the [mandatory razor] Policy was a longstanding one, is not
alleged to have ever been struck down, questioned or even challenged before, and Plaintiff
concedes that when he challenged the Policy it was upheld at every level within DOCCS.”
(Dkt. 12-1 at 7). It is true that “[i]f a policy is unconstitutional, those enforcing it may

nevertheless be entitled to qualified immunity if a reasonable actor might have believed
that the challenged order was lawful in light of legitimate penological interests supporting
the policy.” Barnes v. Fedele, 813 F. App’x 696, 700 (2d Cir. 2020) (quotation and original
alterations omitted). However, at this stage of the proceedings, factual issues remain
regarding the reasonability of Defendants’ belief that the mandatory razor policy was
constitutional. Importantly, it is clear that this is not a DOCCS-wide policy, inasmuch as
it is not applied at the correctional facility where Plaintiff now resides. At a minimum, this
calls into question the assertion that forcing an inmate with a well-documented risk of self-
harm to possess a razor in his cell serves a legitimate penological interest. Cf. Barnes, 813
F, App’x at 700 (finding, at summary judgment stage, that defendants were entitled to
qualified immunity because challenged directive “was aimed at preventing prisoners from
concealing contraband in their headwear” and “[p]reventing the flow of contraband in
prison is certainly a legitimate penological interest’). Accordingly, the Court cannot
determine at this stage of the proceedings that the remaining Defendants are entitled to
qualified immunity as a matter of law.
CONCLUSION
For the foregoing reasons, Defendants’ motion to dismiss (Dkt. 12) is granted as to
Plaintiff's claim against Moore and is denied as to Plaintiff's claims against McCann,
Eckert, and Levitt. The Clerk of Court is directed to terminate Moore as a defendant to
this action.
SO ORDERED. (i wd
=0 OPK bt
ELIZABETHA. WOKEORS
ef Fudge
United States District Court
Dated: March 16, 2022
Rochester, New York

-22-

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10364743. Public record. Not legal advice.