Barry v. Russo

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MAMADOU BARRY, Plaintiff, v. ANTHONY C. RUSSO, et al., Defendants.

No. 22-CV-3835 (KMK)

United States District Court, S.D. New York

March 5, 2024

Mamadou Barry, Attica, NY Pro Se Plaintiff

Kathleen Kelly, Esq., New York State Attorney General's Office, White Plains, NY, Counsel for Defendants Anthony C Russo, Sookdew Ramdeen, and Mark Royce

Kathleen Kelly, Esq., Kathryn E Martin, Esq., New York State Attorney General's Office, White Plains, NY, Counsel for Sergeant Polanco

OPINION & ORDER

KENNETH M. KARAS, United States District Judge

Plaintiff Mamadou Barry (“Plaintiff”), who is currently incarcerated at Green Haven Correctional Facility (“Green Haven”), proceeding pro se, brings this Action, pursuant to 42 U.S.C. § 1983, against Green Haven Superintendent Mary Royce (“Royce”), Acting Superintendent Anthony C. Russo (“Russo”), Sergeant Polanco (“Polanco”), and Correction Officer Sookdew Ramdeen (“Ramdeen,” and collectively, “Defendants”). (See generally Compl. (Dkt. No. 2).) Plaintiff alleges that Defendants violated his constitutional rights, in that they failed to protect him from assault and were deliberately indifferent to his serious medical needs resulting from the assault; subjected him to unconstitutional conditions of confinement; and failed to provide him religious meals. (See generally id.) Before the Court is (1) Defendant Polanco's Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) (“Polanco Motion”), (see Polanco Not. of Mot. (“P Not. of Mot.”) (Dkt. No. 39)); (2) Defendants Royce and Russo's Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) (“RR Motion”), (see Royce and Russo's Not. of Mot. (“RR Not. of Mot.”) (Dkt. No. 59)); and (3) Plaintiff's request for an order directing the New York State Office of the Attorney General (“NYSOAG”) to provide the U.S. Marshals Service (“USMS”) with information necessary to serve Ramdeen, (see Dkt. Nos. 35-37).^[1]For the following reasons, Polanco's Motion is granted in part and denied in part, Royce and Russo's Motion is granted in part and denied in part, and Plaintiff's request is granted.

I. Background

A. Factual Background

The following facts are drawn from Plaintiff's Complaint and associated filings, all of which are assumed to be true for the purpose of resolving the instant Motion. See Div. 1181 Amalgamated Transit Union-N.Y. Emps. Pension Fund v. N.Y.C. Dep't of Educ., 9 F.4th 91, 94 (2d Cir. 2021) (per curiam).^[2]

1. December 16, 2020 Incident and Subsequent Events

In November 2020, Plaintiff began receiving “threat notes” on his bed every time he returned to his cell from a “call out” or recreation. (Compl. at 13.) As a result, Plaintiff wrote multiple letters to Royce and spoke to him on various occasions about these notes. (Id.) Plaintiff also wrote multiple letters to Russo, sending along with the letters some of the actual notes, and spoke with him a few times about the threats. (Id.) In addition to informing Royce and Russo about the notes and that he feared for his safety, Plaintiff claims that he told all the officers that worked on his cell block about the notes, including Ramdeen. (Id. at 15-16.) Moreover, Plaintiff asked both Royce and Russo to investigate the matter and requested to be moved out of his current cell block for safety reasons. (Id. at 13.) However, Plaintiff was not moved. (Id.)

Plaintiff alleges that on December 16, 2020, he returned to his cell block and asked Ramdeen “not to open Plaintiff['s] cell . . . for the rest of the night[] because Plaintif[f] received every[t]hing Plaintiff signed up for.” (Id. at 4.) Ramdeen, who controlled all of the cell doors, responded to Plaintiff in sum and substance “[d]on't tell me how to do my job, go lock in, that[']s a direct order.” (Id.) Plaintiff proceeded to his cell, entered, and closed the cell gate. (Id.) A minute later, an officer walked by and secured all the gates. (Id.)

Plaintiff asserts that as soon as he began unpacking items out of his commissary bag, his cell opened. (Id.) Plaintiff turned around to see why his cell opened but was met with punches to his face and a sharp object to the left side of his face. (Id. at 4-5.) Plaintiff states that he lost consciousness for a period of time, and that when he regained consciousness, he was on the floor inside of his cell, bleeding profusely. (Id. at 5.)

An inmate porter, “Cephas,” found Plaintiff on the floor bleeding and ran to the “bubble” to tell Ramdeen of Plaintiff's condition and that Plaintiff needed emergency medical help. (Id. at 7.)^[3]However, Plaintiff claims, that no doctor, nurse, or medical personnel responded and that he was left to bleed out, with no help. (Id.) In addition, Plaintiff asserts that Ramdeen had no idea that Plaintiff had been assaulted inside of the cell that Ramdeen opened. (Id.)

Eventually Officer Joanette saw Plaintiff bleeding on the floor of the cell and ran to the bubble for help, where she was told that Plaintiff would need to go to the infirmary for medical assistance. (Id. at 7-8.) Officer Joanette helped Plaintiff get up and go to the infirmary, where he lost consciousness. (Id. at 8.) He was later taken to Putnam Hospital. (Id.) The deep laceration on Plaintiff's cheek was stitched, and he was referred to Westchester Hospital for “general surgery on the missing part of [his] nose” and was told to be careful of infection. (Id.) Plaintiff did not receive surgery. (Id. at 8, 11.) Instead, Plaintiff was transferred back to Green Haven. (Id. at 8.)

Upon return, Plaintiff was placed on the second-floor infirmary. (Id.) Plaintiff asserts that he was confined in a cell that was built exclusively for inmates that are suspected of smuggling contraband in the facility. (Id.) Plaintiff claims that within the cell he was: (1) housed with an unflushable toilet and broken window; (2) deprived of a blanket and pillow; (3) not allowed to leave his cell; and (4) denied meals compliant with his faith's dietary restrictions. (Id.)

Plaintiff states that he complained about these issues to multiple officers, including Polanco. (Id. at 8, 19.) Some of the officers acknowledged the cold and other problems but indicated that they were acting on orders from their superiors and that Plaintiff should complain to Royce. (Id. at 8-9.) Plaintiff contends that he took multiple steps to address his living conditions, including writing three letters to Royce and speaking to him on December 17 and 19, 2020. (Id. at 9.) On both occasions, Plaintiff asserts, that he reminded Royce of the December 16 incident, and the various issues in his cell. (Id.) Plaintiff states that in response to Plaintiff's complaints, Royce told him that he cared only about three things, including that Plaintiff was alive, was not escaping, and did not injure the officers, and that anything other than that was secondary. (Id.)

On December 19, 2020, Plaintiff was moved to a different cell. (Id. at 10.) Plaintiff claims that the new cell also had a broken window and was even colder than the first cell. (Id.) Plaintiff still did not receive a blanket or pillow, and had no recreation or religious meals, though he was able to flush the toilet in the new cell. (Id.) Plaintiff wrote letters to Russo requesting better living conditions. (Id.) Plaintiff also spoke to Russo about the conditions he was living in, but Russo said he could not help Plaintiff and did not want to get involved. (Id.) Over the course of the next few days, Plaintiff continued to speak to other personnel about these issues in his cell but received no help. (Id.)

After staying in the second cell for a few more days, Plaintiff was transferred to a room shared with three other men. (Id. at 11.) Plaintiff claims that one of the inmates in that room was receiving special diet meals. (Id.) Plaintiff spoke with Royce, Russo, and Polanco “multiple times informing each of them[] that the inmate next to Plaintiff['s] bed [is] receiving his diet meals[] and for Plaintiff to be denied his religious diet meals . . . is . . . discrimination.” (Id.) However, Plaintiff asserts that nothing came out of his conversations. (Id.) Plaintiff did not receive religious meals for thirty-eight days. (Id.)

During this time, Plaintiff contends, he was also requesting Royce and Russo to transfer Plaintiff to Westchester Hospital for a general surgery on Plaintiff's nose, which both Royce and Russo refused. (Id.) Eventually, Plaintiff's wound got infected, and he was rushed to Westchester Hospital, where the wound was cleaned before he returned to Green Haven. (Id.) Thereafter, Plaintiff was kept on the second-floor infirmary for over three weeks before his transfer was approved by Royce and Russo. (Id.) Plaintiff was released from the second-floor infirmary in January 2021, and was sent back to the same cell in which he was assaulted. (Id.)

2. Photos of Plaintiff's Injuries

On January 24, 2021, Plaintiff was called to the ID room for a new ID picture. (Id. at 12.) In the room, Plaintiff saw that there were photographs of his injuries posted on the wall. (Id.) Plaintiff requested the photos be taken down. (Id.) An officer responded, telling him that “these pictures [were] obtained through [FOIL], therefore, [the officer had] the right to possess them, and the right to put them anywhere [he] wish[ed]. (Id.)

Plaintiff wrote to Russo, informing him of the photos of Plaintiff on the wall in the ID room and requesting that they be taken down. (Id.) On January 27, 2021, Plaintiff spoke to Russo about the photos and again requested that they be taken down. (Id.) Russo told Plaintiff that the officer had obtained the pictures of Plaintiff's injuries through FOIL, that the officer could “post them wherever he want[ed].” (Id.) Plaintiff explained to...