# LaMagna v. Brown > Court of Appeals for the Second Circuit · April 4, 2012 · 474 F. App'x 788 URL: https://www.frixlaw.com/law-library/cases/626635 ## Case - **Full name:** Salvatore LAMAGNA, Plaintiff-Appellant, v. Warden BROWN, Superintendent, Eastern Correctional Facility, Defendant-Appellee, Jimmie Miller, Defendant - **Court:** Court of Appeals for the Second Circuit - **Decided:** April 4, 2012 - **Citations:** 474 F. App'x 788 - **Precedential status:** Unpublished - **Opinion:** Opinion - **Judges:** Jacobs, Pooler, Carney - **Cited by:** 20 later opinions in the Frix Law Library ## Citator (automated) - No negative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/626635 ## Opinion text 11-488-pr LaMagna v. Brown UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Daniel Patrick Moynihan 3 United States Courthouse, 500 Pearl Street, in the City of 4 New York, on the 4th day of April, two thousand twelve. 5 6 PRESENT: 7 DENNIS JACOBS, 8 Chief Judge, 9 ROSEMARY S. POOLER, 10 SUSAN L. CARNEY, 11 Circuit Judges. 12 _____________________________________ 13 14 Salvatore LaMagna, 15 16 Plaintiff-Appellant, 17 18 v. 11-488-pr 19 20 Warden Brown, Superintendent, 21 Eastern Correctional Facility, 22 23 Defendant-Appellee, 24 25 Jimmie Miller, 26 27 Defendant. 28 _____________________________________ 1 1 FOR PLAINTIFF-APPELLANT: Salvatore LaMagna, pro se, 2 Napanoch, NY. 3 4 FOR DEFENDANT-APPELLEE: Martin A. Hotvet, Assistant 5 Solicitor General, Nancy A. 6 Spiegel, Senior Assistant 7 Solicitor General, Barbara 8 D. Underwood, Solicitor 9 General, for Eric T. 10 Schneiderman, Attorney 11 General of the State of New 12 York, Albany, NY. 13 14 15 Appeal from the judgment of the United States District 16 Court for the Northern District of New York (McAvoy, J.; 17 Lowe, M.J.). 18 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 19 AND DECREED that the judgment of the district court is 20 AFFIRMED. 21 Plaintiff-Appellant Salvatore LaMagna, proceeding pro 22 se, appeals from the district court’s judgment dismissing 23 his complaint brought pursuant to 42 U.S.C. § 1983. We 24 assume the parties’ familiarity with the underlying facts, 25 the procedural history of the case, and the issues on 26 appeal. 27 “We review the district court’s grant of a Rule 28 12(b)(6) motion to dismiss de novo, accepting all factual 29 claims in the complaint as true, and drawing all reasonable 2 1 inferences in the plaintiff’s favor.” Famous Horse Inc. v. 2 5th Ave. Photo Inc., 624 F.3d 106, 108 (2d Cir. 2010). To 3 survive a Rule 12(b)(6) motion to dismiss, the complaint 4 must plead “enough facts to state a claim to relief that is 5 plausible on its face.” Bell Atl. Corp. v. Twombly, 550 6 U.S. 544, 570 (2007); see also Ashcroft v. Iqbal, 556 U.S. 7 662, 129 S. Ct. 1937, 1949 (2009). Although all allegations 8 contained in the complaint are assumed to be true, this 9 tenet is “inapplicable to legal conclusions.” Iqbal, 129 S. 10 Ct. at 1949. A claim will have “facial plausibility when 11 the plaintiff pleads factual content that allows the court 12 to draw the reasonable inference that the defendant is 13 liable for the misconduct alleged.” Id. Additionally, 14 while pro se complaints must contain sufficient factual 15 allegations to meet the plausibility standard, see Harris v. 16 Mills, 572 F.3d 66, 72 (2d Cir. 2009), we look for such 17 allegations by reading the complaint with “special 18 solicitude” and interpreting it to raise the strongest 19 claims it suggests. Triestman v. Fed. Bureau of Prisons, 20 470 F.3d 471, 474-75 (2d Cir. 2006) (quoting Ruotolo v. 21 I.R.S., 28 F.3d 6, 8 (2d Cir. 1994)). 22 3 1 We have conducted a de novo review of the record in 2 light of these standards and now affirm the district court’s 3 dismissal of LaMagna’s complaint. LaMagna failed to object 4 to the magistrate judge’s report and recommendation which 5 was subsequently adopted by the district court, despite 6 having been informed of the consequences of such failure. 7 He thus waived any challenge to the district court’s 8 dismissal of his original complaint. See Frank v. Johnson, 9 968 F.2d 298, 299 (2d Cir. 1992) (“Failure to object [to the 10 report and recommendation] within the allotted [time period] 11 results in a waiver of further judicial review.”); see also 12 Spence v. Superintendent, 219 F.3d 162, 174 (2d Cir. 2000). 13 The district court dismissed the amended complaint on 14 the ground that it did not adequately allege that the 15 Appellee was personally involved in the sexual assault. 16 LaMagna argues that the district court “has the authority to 17 intervene and require the respondents to pay . . . monetary 18 damages regardless of who is the proper respondent.” In 19 this Circuit, however, “[i]t is well settled . . . that 20 personal involvement of defendants in alleged constitutional 21 deprivations is a prerequisite to an award of damages under 22 § 1983.” Farid v. Ellen, 593 F.3d 233, 249 (2d Cir. 2010) 4 1 (quoting Farrell v. Burke, 449 F.3d 470, 484 (2d Cir. 2 2006)). A defendant’s supervisory authority is insufficient 3 in itself to demonstrate liability under § 1983. See 4 Richardson v. Goord, 347 F.3d 431, 435 (2d Cir. 2003) (per 5 curiam) (“[M]ere linkage in the prison chain of command is 6 insufficient to implicate a state commissioner of 7 corrections or a prison superintendent in a § 1983 claim.” 8 (internal quotation marks omitted)). Rather, “a plaintiff 9 must plead that each Government-official defendant, through 10 the official’s own individual actions, has violated the 11 Constitution.” Iqbal, 129 S. Ct. at 1948. 12 LaMagna’s amended complaint alleged no personal 13 involvement on the part of the Appellee. It alleged no more 14 than that “employees” left a security gate unlocked and that 15 “the civilian” supervising the inmates at the time of 16 LaMagna’s alleged assault was “not paying attention.” 17 LaMagna also alleged that “the administration never took any 18 sexual assault seriously until this incident,” but that, 19 following the incident, the prison posted “an informational 20 sign about promptly reporting sexual assaults.” Thus, there 21 is no allegation that the Appellee “failed to remedy the 22 wrong” once being informed of LaMagna’s assault. See Colon 23 v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995). 5 1 Finally, LaMagna asserted in his amended complaint that 2 the Appellee violated his duty “to keep [LaMagna] . . . free 3 from sexual assaults . . . and he violated that by 4 deliberate indifference.” This allegation lacks a factual 5 foundation and therefore is a conclusory allegation 6 “masquerading as [a] factual conclusion[],” which is 7 insufficient to defeat a motion to dismiss. Kirch v. 8 Liberty Media Corp., 449 F.3d 388, 398 (2d Cir. 2006) 9 (quoting Smith v. Local 819 I.B.T. Pension Plan, 291 F.3d 10 236, 240 (2d Cir. 2002)). 11 We have considered all of LaMagna’s remaining arguments 12 and find them to be without merit. Accordingly, we AFFIRM 13 the judgment of the district court. 14 15 FOR THE COURT: 16 Catherine O’Hagan Wolfe, Clerk 17 18 6 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/626635. Public record. Not legal advice.