# Ruggiero v. Jones

> District Court, S.D. New York · December 23, 2024

URL: https://www.frixlaw.com/law-library/cases/10770539

## Case

- **Court:** District Court, S.D. New York
- **Decided:** December 23, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10770539

## How later opinions describe it (automated extraction)

- holding that a plaintiff stated a failure-to-protect claim where the defendant officer knew that another inmate had made death threats against the plaintiff

## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ANTHONY RUGGIERO,
Plaintiff,
OPINION & ORDER
-against-
23-CV-07157 (PMH)
STEPHANIE E. JONES, Correction Officer,
Fishkill C.F., et al.,
Defendants.
PHILIP M. HALPERN, United States District Judge:
Anthony Ruggiero (“Plaintiff”), who is proceeding pro se and in forma pauperis,
commenced this action on August 11, 2023. (Doc. 1).1 On March 8, 2024, Plaintiff filed, with the
Court’s permission, an amended complaint. (Doc. 64, “Am. Compl.”). Plaintiff, in his Amended
Complaint, asserts five claims under 42 U.S.C. § 1983 (Claims Numbered 1-4, and 6) predicated
upon violations of the First, Eighth, and Fourteenth Amendments to the United States Constitution,
as well as a State law claim (Claim 5). (Id.). He asserts that during his confinement at Fishkill
Correctional Facility (“Fishkill”), the following New York State employees violated his rights:
Stefanie Jones, Paul Julien, Kevin Eschmann, Alexandra Gibbons, Chris Churns, Ana Figueroa,
Edward Burnett, Jerome Holloway, David Valentino, David Juskim (referred herein as Nicholas
Juskin),2 and a Jane Doe that Plaintiff refers to as “Ms. A” (the “State Defendants”). Plaintiff also

1 Plaintiff, in his original complaint, had included John P. Broas, Shawn T. Sawyer, Veronica Vasquez
Anthony J. Annucci, and Kaylah V. Pryear as defendants, but Plaintiff later voluntarily dismissed his claims
against them pursuant to Federal Rule of Civil Procedure 41. (Docs. 54, 55, 57).
2 After Plaintiff filed his Amended Complaint, the New York Attorney General’s Office clarified in a letter
to the Court that there is no New York State Police Officer by the name of “David Juskim.” (Doc. 82). The
letter continued, however, that “Investigator Nicholas Juskin” is employed by the New York State Police.
(Id.). Plaintiff has since advised the Court that he “intends to sue Investigator Nicholas Juskin” (Doc. 90),
who has received service of process. To the extent Plaintiff seeks an amendment, nunc pro tunc, to the
Amended Complaint to replace “David Juskim” with Nicholas Juskin as a Defendant, that application is
granted.
brings a State law claim against other Fishkill inmates: Dario Torres, Timothy McKenny, Zaire
Birks, Eric Johnson, German Castillo, and two John Doe inmates (the “Inmate Defendants” and
together with the State Defendants, “Defendants”).3
The State Defendants filed a motion to dismiss the Amended Complaint under Federal Rule
of Civil Procedure 12(b)(6) on April 17, 2024. (Doc. 71; Doc. 72, “Def. Br.”).4 Plaintiff filed his

memorandum of law in opposition on May 15, 20245 (Doc. 75, “Pl. Br.”),6 and State Defendants’
motion to dismiss was fully briefed with the filing of their reply memorandum of law on October
26, 2023. (Doc. 77). With respect to the Inmate Defendants, none of them are represented by
counsel. Although Defendant Torres filed an answer to the original complaint (Doc. 24), none of
the Inmate Defendants have answered or moved with respect to the Amended Complaint.7 To that
end, none of the Inmates Defendants have joined this motion.

3 Plaintiff, in his original complaint, named as a defendant Scott Durant, an incarcerated individual. (Doc.
1). Plaintiff does not name Mr. Durant as a defendant in the Amended Complaint. (See generally Am.
Compl.). However, the docket sheet still shows Mr. Durant as a defendant in this action. The Clerk of Court
will be directed to terminate Mr. Durant as a defendant herein.
4 Although the State Defendants’ Notice of Motion omits Juskin as a moving Defendant, the Court has
subsequently granted the State Defendants’ request to “join him” in the “fully briefed Motion to Dismiss.”
(Docs. 95, 96). The State Defendants also argue on behalf of Ms. A in their memorandum of law, despite
Ms. A, as a Jane Doe, not being served with process. (See, e.g., Def. Br. at 11 n.1). The Court therefore
construes the State Defendants’ motion as being made on behalf of all the State Defendants.
5 The docket sheet reflects two opposition briefs by Plaintiff on May 15, 2024, and May 17, 2024. (Docs.
75, 76). But the May 15 and 17 submissions are of the same brief. As such, citations herein reference only
Plaintiff’s first-filed opposition.
6 Given the liberality afforded pro se litigants, it is appropriate to consider new allegations in a pro se
plaintiff’s opposition to a motion to dismiss where they are consistent with the allegations contained in the
pleading. Vail v. City of New York, 68 F. Supp. 3d 412, 427 (S.D.N.Y. 2014) (“Where new allegations in a
pro se plaintiff’s opposition memoranda ‘are consistent with the allegations contained’ in the Complaint,
they may be read ‘as supplements to th[e] pleadings . . . .’” (quoting Boyer v. Channel 13, Inc., No. 04-CV-
02137, 2005 WL 2249782, at *6 (S.D.N.Y. Mar. 9, 2005))). Accordingly, the Court considers on this
motion the additional allegations relevant to this motion in Plaintiff’s opposition.
7 The docket reflects that none of the Inmate Defendants have been served with the Amended Complaint.
Accordingly, as explained infra, Plaintiff is directed, within 60-days of this Order, to serve each of the
Inmate Defendants with the Amended Complaint, and file to the ECF docket proof of service thereof.
For the reasons set forth below, the State Defendants’ motion to dismiss is GRANTED in
part and DENIED in part.
BACKGROUND
Plaintiff was an inmate at Fishkill in 2022. (Am. Compl. ¶ 26). Plaintiff alleges that, during
this period, Fishkill “[s]security staff” and gang members “work[ed] in tandem” to “oppress[] []

everyone.” (Id. ¶ 32). On June 13, 2022, Plaintiff received a misbehavior report written by
Defendant Jones. (Id. ¶ 27). Plaintiff, that same month, was found “not guilty” during a disciplinary
hearing arising out of Defendant Jones’ report. (Id. ¶ 28). Plaintiff alleges that he suffered various
forms of retaliation as a result of the disposition at the disciplinary hearing, including Defendant
Gibbons “squeez[ing] [his] genitals” during a “pat-fisk” [sic] on August 10, 2022 (Id. ¶¶ 30-31,
34-36).
Two days later, Plaintiff informed Defendants Eschmann and Julien of his intent to file a
complaint against Defendant Gibbons under the Prison Rape Elimination Act. (Id. ¶¶ 37-38).
Around ten minutes after this encounter, Defendant Torres and two incarnated John Doe
Defendants “jumped and assaulted” Plaintiff in the bathroom, “cut[ting]” his ear and “hit[ting]

[him] with their fists.” (Id. ¶ 41). As a result of injuries sustained during this alleged physical
assault, Defendants Eschmann and Julien took Plaintiff to the facility hospital. (Id. ¶¶ 45-47).
Plaintiff, after arriving at the facility hospital, “requested hoiusing [sic] in protective custody”;
Defendant Eschmann responded that “[t]here is No Protective Custody Unit at Fishkill.” (Id. ¶¶
48-49). Plaintiff alleges that Defendant Burnett and Churns “dismantl[ed]” the Protective Custody
Unit. (Id. ¶¶ 78, 99).
After Plaintiff returned from the facility hospital, he was placed in “B-West dorm,” which
correction officers and inmates allegedly call “gangland.” (Id. ¶¶ 55-56, 61). Defendant Figueroa,
as Plaintiff arrived at in B-West dorm, “loudly announce[d]” that “this whiteboy doesn’t like
n*****s and sp**s.” (Id. ¶ 57). A few weeks later, Plaintiff was again physically assaulted by
other inmates, who also took Plaintiff’s “commissary bag.” (Id. ¶ 65). Plaintiff then rushed to
Defendants Valentino and Holloway seeking protection and informing them that he had been
“assaulted and robbed” by a “mob” in his “cube.” (Id. ¶¶ 66-67, 105). As alleged, Defendants

Valentino and Holloway “did nothing” and told Plaintiff to return to his “cube.” (Id. ¶ 68). Plaintiff,
upon returning, was physically assaulted by Defendants Castillo, McKenney, Johnson, and Birks.
(Id. ¶ 69). Plaintiff alleges that Defendants Eschmann and Juskin, a State Trooper (id. ¶ 85), refused
to properly investigate, or “initiate the process to criminally charge,” the Inmate Defendants (id. ¶
108).
STANDARD OF REVIEW
On a Rule 12(b)(6) motion, a court may 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)).8 A claim is plausible on its face “when the ple[d] factual

content 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 acted
unlawfully.” Id. The factual allegations pled “must be enough to raise a right to relief above the
speculative level.” Twombly, 550 U.S. at 555.

8 Unless otherwise indicated, case quotations omit all internal citations, quotation marks, footnotes, and
alterations.
“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 “consider the legal sufficiency of the complaint, taking its factual allegations
to be true and drawing all reasonable inferences in the plaintiff’s favor.” Harris v. Mills, 572 F.3d

66, 71 (2d Cir. 2009). The presumption of truth, however, “is inapplicable to legal conclusions,
and threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Id. at 72. 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)).
ANALYSIS
Plaintiff presses five claims under 42 U.S.C. § 1983. That law provides, in pertinent part,
that “[e]very person who, under color of any statute . . . subjects, or causes to be subjected, any
citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured
by the Constitution and laws, shall be liable to the party injured . . . .” 42 U.S.C. § 1983. “[T]his
language does not create substantive rights; rather, it creates a mechanism by which individuals
can vindicate the violation of rights secured elsewhere.” 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) (alteration in original)).
I. Plaintiff’s First Claim for Relief: First Amendment Retaliation

Plaintiff’s first claim for relief is for retaliation against Defendants Jones, Julien, Gibbons,
Figueroa, Eschmann, and Ms. A in violation of the First Amendment. (Am. Compl. at 14).9
A plaintiff asserting a First Amendment retaliation claim must establish that: “(1) his
speech or conduct was protected by the First Amendment; (2) the defendant took an adverse action
against him; and (3) there was a causal connection between this adverse action and the protected
speech.” Cox v. Warwick Valley Cent. School Dist., 654 F.3d 267, 272 (2d Cir. 2011). A plaintiff

9 Citations to specific pages of the Complaint and other filings on the docket correspond to the pagination
generated by ECF.
must allege, with respect to the third element, that the retaliatory motive was a “but for” cause of
the adverse action. See Barkai v. Mendez, 629 F. Supp. 3d 166, 198 (S.D.N.Y. 2022). In other
words, “[i]t is not enough to show that an official acted with a retaliatory motive and that the
plaintiff was injured—the motive must cause the injury.” Nieves v. Bartlett, 587 U.S. 391, 398

(2019).
With respect to Defendants Gibbons and Jones, the State Defendants argue that Plaintiff
failed to allege that he engaged in protected speech or conduct. (Def. Br. at 19-20). To meet this
element, Plaintiff alleges he was retaliated against for being found “not guilty of all charges”
related to a disciplinary report by Defendant Jones. (Am. Compl. ¶¶ 26-34, 94; Pl. Br. at 3, 5). But
“[b]eing found not guilty does not qualify as protected activity, or for that matter, activity at all.”
Davis v. Jackson, No. 15-CV-05359, 2018 WL 358089, at *11 (S.D.N.Y. Jan. 8, 2018) (collecting
cases).10 Nor does Plaintiff allege that he filed a grievance or engaged in any other protected
activity before Defendants Gibbons and Jones allegedly retaliated against him. Plaintiff therefore
fails to allege the first element of his retaliation claim against them.

With respect to Defendants Eschmann, Julien, and Ms. A, Plaintiff alleges that that they
orchestrated an attack by the Inmate Defendants against him as a result of his threat to file a
grievance against Defendant Gibbons. (Am. Compl. ¶¶ 34-45). The State Defendants argue that
Plaintiff failed to satisfy the causal-connection element against these Defendants. (Def. Br. at 23-

10 Plaintiff, in his opposition brief, adds an allegation that Defendant Jones retaliated against him for
“refusing her direct order[s].” (Pl. Br. at 5). But refusing a correctional officer’s orders is also not protected
activity under the First Amendment. See Rodriguez v. Phillips, 66 F.3d 470, 478 (2d Cir. 1995) (“[T]he
First Amendment is subject to severe curtailment when its protections are inconsistent with the limitations
inherent in incarceration, especially those limitations necessary for the safety and security of the prison
environment.”); Coleman v. Cuomo, No. 18-CV-00390, 2019 WL 6829613, at *10 (N.D.N.Y. Dec. 13,
2019) (“[S]everal courts [within the Second Circuit] have made clear that a verbal confrontation with a
correction officer based on an inmate’s dissatisfaction with that officer’s directive is one example of speech
that is not constitutionally-protected activity” (collecting cases)), adopted sub nom. Coleman v. Racette,
No. 18-CV-00390, 2020 WL 896785 (N.D.N.Y. Feb. 24, 2020).
24). The Court agrees. Plaintiff pleads no allegations tying Defendants Eschmann, Julien, or Ms.
A to the later assault. He instead only alleges that he had informed Defendants Eschmann and
Julien of his intent to file a grievance before the assault (Am. Compl. ¶¶ 37-38, 41), that they
“became argumentative” with him (Pl. Br. at 9), and that they spoke with Ms. A right before the

assault (Am. Compl. ¶¶ 39, 41). These allegations provide no grounds for the Court to infer, even
interpreting the pro se complaint with the required liberality, that Defendants Eschmann, Julien,
and Ms. A conspired with and directed the Inmate Defendants to attack Plaintiff. To that end, it is
well-established that “[c]onclusory allegations will not suffice [for a retaliation claim]; instead, a
prisoner’s claim for retaliation must be supported by specific and detailed factual allegations.”
Vogelfang v. Capra, 889 F. Supp. 2d 489, 517 (S.D.N.Y. 2012); see, e.g., Crichlow v. Doccs, No.
18-CV-03222, 2022 WL 6167135, at *8 (S.D.N.Y. Oct. 7, 2022) (dismissing a plaintiff’s
retaliation claim and explaining “[s]imply stating, in conclusory fashion, that” the defendants
retaliated against him “d[id] not establish causation”); Zielinski v. Annucci, No. 17-CV-01042,
2019 WL 2870337, at *10 (N.D.N.Y. Mar. 19, 2019) (denying the plaintiff’s motion to amend his

First Amendment claim and finding the plaintiff’s allegations that prison guards “orchestrated” an
attack by inmates as “vague, speculative, and conclusory”), adopted by, 2019 WL 2869608
(N.D.N.Y. July 3, 2019). The claim as to Defendants Eschmann, Julien, and Ms. A fails and is
dismissed.
Finally, as to Defendant Figueroa, the State Defendants argue that Plaintiff fails to allege
an adverse action. (Def. Br. at 20-21). Defendant Figueroa’s only alleged adverse action was
screaming at Plaintiff that “this whiteboy doesn’t like n*****s and s***s.” (Am. Compl. ¶ 57). As
a general matter, “verbal threats may constitute an adverse action.” Mateo v. Bristow, No. 12-CV-
05052, 2013 WL 3863865, at *5 (S.D.N.Y. July 16, 2013). Such verbal threats, however, must be
“specific and direct” to allow the court to infer that they would deter an inmate from exercising
his First Amendment rights. Id.; accord Fabricio v. Griffin, No. 16-CV-08731, 2019 WL 1059999,
at *8 (S.D.N.Y. Mar. 6, 2019). Here, Plaintiff fails to allege that Defendant Figueroa made a
“specific and direct” threat. Indeed, it is unclear from the Amended Complaint whether Defendant

Figueroa’s statement was even a threat. The alleged statement, at most, amounts to a “vague
intimation[ ] of some unspecified harm” that “[does] not rise to the level of adverse action.”
Amaker v. Annucci, No. 14-CV-09692, 2016 WL 5720798, at *5 n.8 (S.D.N.Y. Sept. 30, 2016)
(quoting Bumpus v. Canfield, 495 F. Supp. 2d 316, 326 (W.D.N.Y. 2007)); aff’d, 721 F. App’x 82
(2d Cir. 2018); see also Ross v. Westchester Cnty. Jail, No. 10-CV-03937, 2012 WL 86467, at *7
(S.D.N.Y. Jan. 11, 2012) (explaining that “harassing comments . . . do not constitute adverse
actions sufficient to state a retaliation claim”).
Accordingly, Plaintiff’s first claim for relief is dismissed.11
II. Plaintiff’s Second Claim for Relief: 1983 Conspiracy
Plaintiff’s second claim for relief is for Section 1983 conspiracy against Defendants
Eschmann, Julien, and Ms. A in violation of the Eighth Amendment. (Am. Compl. at 14-15).

Plaintiff alleges that these Defendants “conspired together to have [him] beaten up.” (Id. ¶ 96).
According to the Amended Complaint, Defendants Torres and John Doe “jumped and assaulted”
Plaintiff shortly after he spoke with Defendants Eschmann and Julien and saw Ms. A. (Id. ¶¶ 37-
39, 41). Defendants argue that these allegations fail to state an underlying constitutional violation,
and thus Plaintiff’s conspiracy claim fails. (Def, Br. at 30-32).

11 Given the Court’s ruling herein, the Court need not and does not address the other arguments made by
the State Defendants in support of their motion to dismiss the First Amendment claim.
“To establish a claim for a [Section] 1983 conspiracy, Plaintiffs must demonstrate: ‘(1) an
agreement between a state actor and a private party; (2) to act in concert to inflict an
unconstitutional injury; and (3) an overt act done in furtherance of that goal causing damages.’”
Singer v. City of New York, 417 F. Supp. 3d 297, 327 (S.D.N.Y. 2019) (quoting Phillips v. Cnty.

of Orange, 894 F. Supp. 2d 345, 381 (S.D.N.Y. 2012) (quoting Ciambriello v. Cnty. of Nassau,
292 F.3d 307, 324-25 (2d Cir. 2002))). Moreover, a conspiracy claim under § 1983 requires a
plaintiff to state an underlying violation of constitutional rights. See Schultz v. Inc. Vill. of Bellport,
479 F. App’x 358, 360 (2d Cir. 2012) (“Because [plaintiff] was unable to establish an underlying
violation of his constitutional rights . . . his conspiracy . . . necessarily fail[s] as well.” (citing Droz
v. McCadden, 580 F.3d 106, 109 (2d Cir. 2009))).
Liberally construed, the underlying violation of Plaintiff’s constitutional rights alleged is a
failure to protect by Defendants Eschmann, Julien, and Ms. A in violation of the Eighth
Amendment. See Avincola v. Maldonado, No. 04-3529, 2005 WL 3116760, at *1 (2d Cir. Nov.
22, 2005) (“A prison official’s ‘deliberate indifference’ to a substantial risk of serious harm to an

inmate violates the Eighth Amendment’ and will give rise to a failure-to-protect claim.”). The
Eighth Amendment requires that prison officials “take reasonable measures to guarantee the safety
of inmates in their custody.” Rennalls v. Alfredo, No. 12-CV-05300, 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-09196, 2014 WL 3384629, at *5 (S.D.N.Y.
July 10, 2014) (quoting Farmer v. Brennan, 511 U.S. 825, 832 (1994)); Randle v. Alexander, 960
F. Supp. 2d 457, 471 (S.D.N.Y. 2013). However, while prison officials have a duty to protect
prisoners, “not . . . every injury suffered by one prisoner at the hands of another . . . translates
into constitutional liability for prison officials responsible for the victim’s safety.” Fair v. Weiburg,
No. 02-CV-09218, 2006 WL 2801999, at *4 (S.D.N.Y. Sept. 28, 2006) (quoting Farmer, 511 U.S.
at 834).
To state a failure to protect claim, a plaintiff must plead facts sufficient to establish both
an objective and subjective prong. See Camacho v. DuBois, No. 21-CV-06180, 2022 WL

17807433, at *5 (S.D.N.Y. Dec. 19, 2022). The objective prong in a failure to protect case requires
that “[a] plaintiff show a substantial risk of harm from either a specific assailant or a more general
risk of harm due to the conditions at the time of the attack, such as where a substantial risk of
inmate attacks was longstanding, pervasive, [or] well-documented.” Dietrich v. Cnty. of Orange,
No. 19-CV-10485, 2020 WL 5209816, at *3 (S.D.N.Y. Sept. 1, 2020) (alterations in original,
internal citations and quotation marks omitted). As for the subjective prong, “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; see also Bacon v. Evans, No. 20-CV-06337, 2021 WL
5643038, at *4 (S.D.N.Y. Dec. 1, 2021) (explaining that a plaintiff must sufficiently allege that

“the defendant acted with deliberate indifference” to state a failure to protect claim).
The State Defendants argue that Plaintiff’s allegations fail to satisfy the subjective element.
(Def. Br. at 31). The Court agrees. Plaintiff fails to plead any allegations establishing that
Defendants Eschmann, Julien, and Ms. A possessed the requisite knowledge that Plaintiff faced a
substantial risk. He does not, for instance, allege that these Defendants were aware that Defendants
Torres and John Doe had made specific threats to Plaintiff. Cf. Ayers v. Coughlin, 780 F.2d 205,
209 (2d Cir. 1985) (holding that a plaintiff stated a failure-to-protect claim where the defendant
officer knew that another inmate had made death threats against the plaintiff). Nor does Plaintiff
allege that he had requested to be transferred to a different cell block because of these other
inmates. Cf. Walker v. Shaw, No. 08-CV-10043, 2010 WL 2541711, at *9 (S.D.N.Y. June 23,
2010) (finding that a “trier of fact could conclude that the prison officials failed to take reasonable
measures to abate the harm” faced by the plaintiff where he had “requested a transfer from his
[rival gang’s] cell block”). Thus, there is no basis on which to infer that these Defendants were

aware of a threat of harm to Plaintiff. Moreover, as explained supra, Plaintiff’s theory that certain
of the State Defendants orchestrated the attack by Defendant Torres and two incarnated John Doe
Defendants (Am. Compl. ¶¶ 96-97) is mere speculation unsupported by allegations in the
Amended Complaint.
Separately, Plaintiff’s allegations amount to a surprise attack. Although the Court
sympathizes with Plaintiff’s situation, “unexpected incidents are insufficient to propagate a
deliberate indifference claim.” Gilmore v. Rivera, No. 13-CV-06955, 2014 WL 1998227, at *4
(S.D.N.Y. May 14, 2014); see also Rivera v. Royce, No. 19-CV-10425, 2021 WL 2413396, at *8
(S.D.N.Y. June 11, 2021) (“It is well-established that prison officials cannot be deliberately
indifferent to a surprise attack.”). Plaintiff thus has not adequately alleged an underlying

constitutional violation for his conspiracy claim. As such, Plaintiff fails to state his Section 1983
conspiracy claim. See, e.g., Anderson v. City of New York, No. 16-CV-06629, 2017 WL 2729092,
at *5 (S.D.N.Y. June 23, 2017) (“[The plaintiff] fails to state a § 1983 conspiracy claim because
he has failed to allege a violation of his rights.”).
Accordingly, Plaintiff’s second claim for relief is dismissed.
III. Plaintiff’s Third Claim for Relief: Deliberate Indifference
Plaintiff’s third claim for relief is for deliberate indifference against Defendants Burnett
and Churns in violation of the Eighth Amendment. (Am. Compl. at 15). Plaintiff alleges that
they—as Superintendent and Deputy Superintendent of Fishkill—displayed “deliberate
indifference to Plaintiff’s health and safety by dismantling and not maintaining a Protective
Custody Unit.” (Id. ¶¶ 98-99). The State Defendants argue that Plaintiff fails to “demonstrate any
personal involvement” by Defendants Burnett and Churns, and, in the alternative, that Plaintiff
fails to meet the subjective prong of his deliberate indifference claim. (Def. Br. at 25). Plaintiff, in
response, states that he has “no counter argument.” (Pl. Br. at 18).

“To state a claim under Section 1983, a plaintiff must allege facts showing defendants’
direct and personal involvement in an alleged constitutional deprivation.” Johnson v. City of
Newburgh, 690 F. Supp. 3d 224, 238 (S.D.N.Y. 2023). The Second Circuit, in Tangreti v.
Bachmann, explained that “there is no special rule for supervisory liability.” 983 F.3d 609, 618
(2d Cir. 2020). The Second Circuit continued: “a plaintiff must plead that each Government-
official defendant, through the official’s own individual actions, has violated the Constitution.” Id.
In other words, for a deliberate indifference claim, a plaintiff must show that a supervisor
defendant “herself acted with deliberate indifference—meaning that [the defendant] personally
knew of and disregarded an excessive risk to [the plaintiff’s] health or safety.” Id. at 619 (cleaned
up).

Since Tangreti, some district courts in this Circuit “have determined that personal
involvement still may be established for a supervisory defendant if he or she created a policy or
custom under which unconstitutional practices occurred, or allowed the continuance of such a
policy or custom.” Sanchez v. Nassau Cnty., 662 F. Supp. 3d 369, 416 (E.D.N.Y. 2023) (collecting
cases). These courts, however, have required a plaintiff to plead “the necessary mens rea of
deliberate indifference” “permit[ing] the inference that [the defendant] had subjective knowledge
of the risk.” E.g., Stone #1 v. Annucci, No. 20-CV-01326, 2021 WL 4463033, at *9 (S.D.N.Y.
Sept. 28, 2021). Moreover, these courts have stressed that the “requisite inference of mens rea
cannot be established merely by showing that a supervisory defendant ‘should have known of the
substantial risk of [] abuse’”; a plaintiff must plead that the “defendant-official [] subjectively
kn[ew] of the risk” and “consciously disregard that risk.” Id. at *11 (quoting in Tangreti, 983 F.3d
at 618; emphasis in Tangreti).
Here, the Court need not wade into the viability of a post-Tangreti deliberate indifference

claim against a prison “policymaker.” Even if such a claim is cognizable, Plaintiff’s allegations do
not allow the Court to infer that Defendants Burnett or Churns acted with the requisite state of
mind. Indeed, in his Amended Complaint, Plaintiff only makes allegations about his own
experience.12 He does not make any allegation that either Defendants Burnett or Churns were
aware of his specific circumstances. Instead, Plaintiff’s sole allegation about the dangers he and
other Fishkill inmates faced was that “B-West dorm” is referred to as “gangland” by staff and
inmates. (Am. Compl. ¶ 61). Allegations that Plaintiff was incarcerated with dangerous
individuals, alone, are not enough to state a deliberate indifference claim. See Thomas v. Demeo,
No. 15-CV-09559, 2017 WL 3726759, at *8 (S.D.N.Y. Aug. 28, 2017) (“Given that inmates in
federal prison are often incarcerated specifically because of some record of violence, it can hardly

12 Plaintiff, in his opposition brief, adds an allegation that “[i]nmates getting assaulted by other inmates
because the correctional staff told them to do it” is an “everyday occurrence.” (Pl. Br. at 15). But this
allegation is also insufficient to establish that Defendants Burnett or Churns acted with the requisite state
of mind. At most, this allegation shows that Defendants Burnett or Churns should have known about the
risks faced by Fishkill inmates. That is not enough. By way of contrast, courts within this Circuit post-
Tangreti have required a plaintiff to plead far more substantial allegations to establish that the prison
officials knew of a substantial risk. See, e.g., Stone #1, 2021 WL 4463033, at *10 (plaintiff satisfied the
subjective prong by pleading “(1) statistical reports on prison rape, including DOCCS reports of which [the
defendant prison officials] were likely aware . . . ; (2) the steps taken by several states and local correctional
institutions to require the presence of female staff to guard women prisoners, and to remove men from
guarding women prisoners in housing areas . . .; (3) the fact that [the defendant prison officials] are named
defendants in multiple suits in which imprisoned women have brought claims of being sexually abused by
staff in DOCCS facilities . . .; and (4) the fact that staff sexual misconduct at DOCCS facilities has resulted
in numerous prosecutions and convictions of correction officers”); Myers on behalf of Est. of Myers v.
Davenport, No. 1:21-CV-00922, 2022 WL 3017367, at *7 (N.D.N.Y. July 29, 2022) (same where the
“Department of Justice had previously issued a ‘scathing’ report on the facility regarding the dangers the
residents there faced”).
be said that Plaintiff’s comments to [the defendant officer] warranted a need for further protection,
especially in the absence of any history of violence between [the other inmate] and Plaintiff.”); see
also Miller-Santiago v. Warden, No. 23-CV-00393, 2023 WL 4564485, at *2 (D. Conn. July 17,
2023) (dismissing a deliberate indifference claim against the prison Warden and Commissioner

because the plaintiff failed to allege “facts showing that” these defendants “had subjective
knowledge of [a] substantial risk he faced and disregarded that risk”); Elting v. Lassiter, No. 22-
CV-08573, 2023 WL 8699454, at *7 (S.D.N.Y. Dec. 14, 2023) (similar).
Accordingly, Plaintiff’s third claim for relief is dismissed.
IV. Plaintiff’s Fourth Claim for Relief: Failure to Protect
Liberally construed, Plaintiff’s fourth claim for relief is for failure to protect against
Defendants Valentino and Holloway in violation of the Eighth Amendment. (Am. Compl. at 16;
see also id. ¶ 105 (alleging that Defendants Valentino and Holloway did not provide Plaintiff with
“requested protection” and did not “protect[]” him from other Fishkill inmates). As discussed
supra, Plaintiff must plead facts sufficient to establish both the objective and subjective prongs to
make out his claim.

The State Defendants argue that Plaintiff has again merely alleged a “surprise attack”
without satisfying the subjective prong. (Def. Br. at 26-28). The Court disagrees. Plaintiff alleges
that he sought Defendants Valentino and Holloway’s “protection” “immediately” after being “hit
and robbed.” (Id. ¶ 105; see also id. ¶¶ 64-69). Plaintiff alleges that Defendants Valentino and
Holloway then sent him right back to that area—where he was again physically assaulted. (Id.).
The second assault was thus not a “surprise”; Plaintiff had put Defendants Valentino and Holloway
on notice that he faced a specific threat of assault by his fellow inmates in a specific area of the
prison and was then assaulted. See Davis v. Torres, No. 10-CV-02236, 2012 WL 3070092, at *5
(S.D.N.Y. May 2, 2012) (“Courts have found that a prisoner validly states an Eighth Amendment
claim based on a failure to protect when he alleges that he informed corrections officers about a
specific fear of assault and is then assaulted.” (collecting cases)), adopted sub nom. Davis v. New
York State Dep’t of Corr., No. 10-CV-02236, 2012 WL 3070083 (S.D.N.Y. July 27, 2012).
Contrary to the State Defendants’ suggestion, Plaintiff does not have to allege that he had

“identified his assailants” at the time to state a claim. (Def. Br. at 26). It is enough for Plaintiff to
allege that “prison officials were sufficiently aware that he was at risk of substantial harm.” Stewart
v. Fisher, No. 11-CV-02184, 2011 WL 6153084, at *6 (S.D.N.Y. Dec. 12, 2011) (rejecting the
defendants’ argument on a motion to dismiss that the plaintiff failed to state a failure-to-protect
claim because he “did not identify” his assailant to prison staff).
Accordingly, Plaintiff has sufficiently alleged his claim for failure to protect against
Defendants Valentino and Holloway.
V. Plaintiff’s Sixth Claim for Relief: Failure to Prosecute
Plaintiff’s sixth claim for relief is for failure to prosecute against Defendants Eschmann
and Juskin. (Am. Compl. at 17). The State Defendants argue that a claim for a failure to prosecute
is not “cognizable” under Section 1983. (Def. Br. at 28). “[T]here is no constitutional right to the

criminal prosecution of a third party.” Leeke v. Timmerman, 454 U.S. 83, 87 (1981). It is thus also
well-established that “there is no constitutional right to an adequate investigation.” Newton v. City
of New York, 566 F. Supp. 2d 256, 278 (S.D.N.Y. 2008) (citing Campbell v. Giuliani, No. 99-CV-
02603, 2000 WL 194815, at *3 n.6 (E.D.N.Y. Feb. 16, 2000)); see also McCaffrey v. City of New
York, No. 11-CV-01636, 2013 WL 494025, at *5 (S.D.N.Y. Feb. 7, 2013) (“[A] ‘failure to
investigate’ is not independently cognizable as a stand-alone claim[.]”). As such, Plaintiff’s sixth
claim—grounded in his allegations that Defendants Eschmann and Juskin failed to “initiate the
process to criminally charge” other inmates and “failed to conduct[] an investigation” (Am. Compl.
¶ 108)—does not state a cognizable claim.
Accordingly, Plaintiff’s sixth claim for relief is dismissed.
VI. Qualified Immunity

Finally, the State Defendants argue that Plaintiff’s claims should be dismissed because they
are entitled to qualified immunity. (Def. Br. at 32).
“Qualified immunity protects public officials from liability for civil damages when one of
two conditions is satisfied: (a) the defendant’s action did not violate clearly established law, or (b)
it was objectively reasonable for the defendant to believe that his action did not violate such law.”
Garcia v. Does, 779 F.3d 84, 92 (2d Cir. 2015) (quoting Russo v. City of Bridgeport, 479 F.3d 196,
211 (2d Cir. 2007)). “A Government official’s conduct violates clearly established law when, at
the time of the challenged conduct, the contours of a right are sufficiently clear that every
reasonable official would have understood that what he is doing violates that right.” Almighty
Supreme Born Allah v. Milling, 876 F.3d 48, 59 (2d Cir. 2017) (quoting Ashcroft v. al-Kidd, 563
U.S. 731, 741 (2011)). If an official’s belief that his action does not violate clearly established law
is “objectively reasonable,” he is shielded from liability by qualified immunity. Cooper v. City of

New Rochelle, 925 F. Supp. 2d 588, 608 (S.D.N.Y. 2013); see also al-Kidd, 563 U.S. at 743
(“Qualified immunity gives government officials breathing room to make reasonable but mistaken
judgments. . . . [I]t protects all but the plainly incompetent or those who knowingly violate the
law.” (internal quotation marks omitted)). However, on a motion to dismiss, Plaintiff’s entitlement
to qualified immunity must “appear on the face of the complaint.” Hyman v. Abrams, 630 F. App’x
40, 42 (2d Cir. 2015) (internal quotation marks omitted).13

13 The Court does not address Defendants Jones, Julien, Gibbons, Figueroa, Eschmann, Ms. A, Burnett,
Churns, and Juskin’s qualified immunity defense, having found that Plaintiff has failed to state a claim
against them. See Close v. Bedford Cent. Sch. Dist., No. 23-CV-04595, 2024 WL 3427213, at *14 n.23
(S.D.N.Y. July 16, 2024) (“Because all of Plaintiffs’ federal claims fail on the merits, the Court need not
address the parties’ arguments concerning qualified immunity.”); Robles v. Khahaifa, No. 09-CV-00718,
With respect to Defendants Valentino and Holloway, at the time of his alleged incident
with Plaintiff, a failure to protect claim under the Eighth Amendment was clearly established law.
See Jenkins v. Officer S (Downstate), No. 19-CV-10728, 2021 WL 4392611, at *5 (S.D.N.Y. Sept.
24, 2021) (citing Farmer, 511 U.S. at 834)). As stated supra, Plaintiff has sufficiently alleged a

violation of that constitutional right as to Defendants Valentino and Holloway. However, at this
stage in litigation, the Court cannot find that they are entitled to qualified immunity. Although the
Court is unable to conclude that Defendants Valentino and Holloway are entitled to qualified
immunity based on the face of the Amended Complaint, “a factual basis for qualified immunity
may arise as the proceedings develop.” Rodriguez v. Burnett, No. 22-CV-10056, 2024 WL
1466880, at *9 (S.D.N.Y. Apr. 4, 2024) (quoting Terranova v. New York, 144 F. App’x 143, 146-
47 (2d Cir. 2005)). They may revisit this argument after developing the record in discovery.
CONCLUSION

For the foregoing reasons, Defendants’ motion to dismiss is GRANTED in part and
DENIED in part. Defendants’ motion to dismiss is GRANTED as to the first, second, third, and
sixth claims for relief. The motion is DENIED as to the fourth claim for relief.
Defendants Valentino and Holloway are directed to file an answer to the Amended
Complaint within 14 days of the date of this Order. The Court will separately docket a Notice of
Initial Conference.
Plaintiff, within 60-days of this Order, is directed to (i) serve Defendants Dario Torres,
Timothy McKenny, Zaire Birks, Eric Johnson, and German Castillo with the Amended Complaint;
and (ii) file to the ECF docket proof of service thereof. See Fed. R. Civ. P. 4(m); Fed. R. Civ. P.

2012 WL 2401574, at *9 (W.D.N.Y. June 25, 2012) (“Given that no constitutional violation was found,
this Court need not address defendants’ alternative contention that they deserve qualified immunity for their
actions.” (emphasis deleted)).
5(a)(1)(B). Plaintiffs failure to comply with this Order may result in dismissal of this case as to
Defendants Dario Torres, Timothy McKenny, Zaire Birks, Eric Johnson, and German Castillo.
Plaintiff is further directed to provide an updated address for Defendant Torres. (See Sept. 24, 2024
Entry (noting that mailing to Defendant Torres has been returned for “Insufficient Address”)).
The Clerk of Court is respectfully requested to: (1) terminate Jones, Julien, Gibbons,
Figueroa, Eschmann, Ms. A, Burnett, Churns, Juskin, and Scott Durant as Defendants; (2)
terminate the pending motion (Doc. 71); and (3) mail a copy of this Opinion and Order to Plaintiff.

SO ORDERED.
Dated: White Plains, New York
December 23, 2024 (dom/
PHILIPM.HALPERN =——<“i‘“SCS
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10770539. Public record. Not legal advice.