Gibson v. Cuomo

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DANA GIBSON, a/k/a GEE GIBSON, Plaintiff, v. ANDREW M. CUOMO, et al., Defendants.

No. 20-CV-1455-JLS-MJR

United States District Court, W.D. New York

June 2, 2023

REPORT, RECOMMENDATION AND ORDER

MICHAEL J. ROEDER UNITED STATES MAGISTRATE JUDGE

INTRODUCTION

This case has been referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1) by the Honorable John L. Sinatra, Jr. for all pre-trial matters, including preparation of a report and recommendation on dispositive motions. (Dkt. No. 29). Before the Court is Defendant Andrew M. Cuomo's motion to dismiss this action pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Dkt. No. 28). Also before this Court is Plaintiff Dana Gibson's motion for sanctions pursuant to Rule 11 of the Federal Rules of Civil Procedure and Title 28, United States Code, Section 1927 (Dkt. No. 43) motion to amend or correct party name, (Dkt. No. 49), and motion to strike (Dkt. No. 49).

For the following reasons, this Court recommends that the District Court grant Defendant Cuomo's motion to dismiss. It is further recommended that the District Court deny Plaintiff Gibson's motion for sanctions.^[1] Lastly, it is ordered the Plaintiff Gibson's motion to amend party name is granted and Plaintiff's motion to strike is denied.^[2]

BACKGROUND and PROCEDURAL HISTORY

Pro se Plaintiff Dana Gibson is a prisoner presently confined at Marcy Correctional Facility. (Dkt. No. 10). Gibson filed this action under 42 U.S.C. § 1983 and alleged, among other things, that Defendants, former New York Governor Andrew M. Cuomo and the New York State Department of Corrections and Community Supervision (“DOCCS”) violated the Eighth Amendment when they were indifferent, careless, reckless, and negligent in failing to heed the advice, warnings, and guidance of the Centers for Disease Control (“CDC”) and other governmental agencies in March and April 2020. (Id., ¶¶ 12-18). And that, as a result, Gibson contracted the novel coronavirus (“COVID-19”). (Id.). Gibson alleged the exposure occurred while she was in DOCCS custody due to the lack of protective measures, including face coverings or masks and social distancing. (Id.). Gibson alleged several other constitutional violations arising from when she was confined at Wende Correctional Facility, including mail interference and retaliation, use of excessive force, denial of medical care, and due process. (Id., ¶¶ 19-32).

Relevant to this motion to dismiss, Plaintiff specifically alleged that on March 17, 2020 she was transported from the Auburn Correctional Facility to Wende Correctional Facility on a bus for four hours with numerous other prisoners without masking or proper ventilation. (Dkt. No. 10, ¶¶ 16-17). The guards escorting her also allegedly did not have masks or face coverings. (Id.). When asked about the lack of masks and social distancing, Plaintiff alleges that a DOCCS employee told her that “we don't have to do all that shit because neither Governor Cuomo, nor DOCCS require or permit such.” (Id.). Plaintiff alleged that when she arrived at Wende in the afternoon of March 17 and was assigned to a unit, face masks or coverings were not permitted or required, and there was not an air filtration system to filter out COVID-19 “virus spores.” (Id.). On the morning of March 18, 2020, Plaintiff began having breathing difficulty and was rushed to the prison infirmary, where she tested positive for COVID-19. (Id., ¶¶ 17-18). On the next day, March 19, 2020, she was transported from the prison infirmary to the Erie County Medical Center for medical treatment and care of COVID-19 and related respiratory complications. (Id.). Plaintiff alleged that she was exposed to and contracted COVID-19 because of the Defendants' failure to implement policies and procedures despite purportedly being warned by the CDC about the dangers of COVID. (Id., ¶¶ 13-14, 18). Based on these allegations, Plaintiff claims that Governor Cuomo and other Defendants violated her Eighth Amendment rights.

The District Court previously granted Plaintiff permission to proceed in forma pauperis and screened Plaintiff's Complaint and Amended Complaint pursuant to 28 U.S.C. § 1915(e)(2)(B) and 1915A. (Dkt. Nos. 5; 16). Through those decisions, the Court dismissed several of Plaintiff's claims, and allowed only the following claims to proceed to service: (1) Gibson's Eighth Amendment claims against Cuomo, Annucci, Graff, McKenzi, and Cochran related to Gibson's exposure to and contraction of COVID-19 (Dkt. No. 10, ¶¶ 12-18); (2) Gibson's First Amendment retaliation claim against Maddox (Id., ¶¶ 19-21); (3) Gibson's excessive force, failure to intervene, and failure to treat injury claims against Prequeen, Szablicki, Price, Seay, Hunter, and Obertean (Id., ¶¶ 22-24); and (4) Gibson's due process claims against Brown and McGuire (Id., ¶¶ 25-32). Plaintiff seeks compensatory and punitive damages against the individual defendants. (Id., ¶ 33). Plaintiff also sought declaratory relief against DOCCS, but the District Court dismissed all claims against DOCCS and any other defendant, in his or her official capacity. (Dkt. No. 16).

On June 11, 2022, Defendant Cuomo filed the instant motion to dismiss Plaintiff's complaint pursuant to Rule 12(b)(6), for failure to state a claim upon which relief can be granted. (Dkt. No. 28). Plaintiff filed a response in opposition to the motion. (Dkt. No. 37). Defendant filed a reply. (Dkt. No. 41). At that time, the Court considered the matter submitted for report and recommendation. Subsequently, Plaintiff moved to strike Defendant Cuomo's reply memorandum. (Dkt. No. 49). Defendant Cuomo opposed the request to strike (Dkt. No. 50), and filed an amended reply memorandum (Dkt. No. 51).

On August 11, 2022, Plaintiff filed a motion for sanctions against Defendant Cuomo's counsel, Rita M. Glavin, Esq., and Pamela A. Nichols, Esq., pursuant to 28 U.S.C. § 1927 and Rule 11 of the Federal Rules of Civil Procedure. (Dkt. No. 43). Counsel for Defendant Cuomo filed a response in opposition to the motion. (Dkt. No. 46). Plaintiff filed a reply. (Dkt. No. 52).

On August 31,2022, Plaintiff filed a motion to amend or correct party name. (Dkt. No. 48). Defendants have not opposed that request.

In the interim, defendants Annucci, Balloni, Cochran, Graff, and McKenzie have filed a motion to dismiss (Dkt. No. 61), and defendants Brown, Hunter, Maddox, McGuire, Obertean, Pequeen, Price, Seay, and Szablicki have filed a separate motion to dismiss and/or motion to sever (Dkt. No. 67). Each of those motions is awaiting briefing by the parties and will be addressed by separate decision/report and recommendation.

DISCUSSION

Defendant Cuomo moves to dismiss Plaintiffs Eighth Amendment claim against him on the grounds that: (1) Plaintiff's claim of deliberate indifference fails as a matter of law; (2) Plaintiff's claim does not allege personal involvement by Governor Cuomo; (3) Governor Cuomo is entitled to qualified immunity; and (4) Plaintiff has not exhausted her administrative remedies. The motion to dismiss, as well as Plaintiff's related motion for sanctions and motion to strike, are discussed below.

Motion to Dismiss

A defendant may move to dismiss a complaint on the ground that it fails to state a claim on which relief can be granted. See Fed.R.Civ.P. 12(b)(6). To state a claim on which relief can be granted, a complaint must contain, inter alia, “a short and plain statement of the claim showing that the pleader is entitled to relief." See Fed.R.Civ.P. 8(a)(2). In reviewing a complaint in the context of a motion to dismiss pursuant to Fed. R Civ. P. 12(b)(6), the court must accept as true all factual allegations and draw all reasonable inferences from those allegations in favor of the plaintiff. ATSI Commc'ns Inc. v. ShaarFund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007). Specifically, a complaint must plead “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), and must “allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”). The Supreme Court has further instructed that “[d]etermining whether a complaint states a plausible claim for relief [...] requires the [...] court to draw on its judicial experience and common sense." Iqbal, 556 U.S. at 679. “But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not ‘show[n]'-‘that the pleader is entitled to relief.'” Id. (citing Fed.R.Civ.P. 8(a)(2)).

Where, as here, the plaintiff is proceeding pro se, the complaint, “however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)); see also Triestman v. Fed. Bureau of Prisons, 470 F.3d 471,474 (2d Cir. 2006) (“It is well established that the submissions of a Pro se litigant must be construed liberally and interpreted ‘to raise the strongest arguments that they suggest.'”) (quoting Pabon v. Wright, 459 F.3d 241, 248 (2d Cir. 2006)). That said, even a Pro se complaint must be dismissed if it does not contain “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570).

“In determining the adequacy of a claim under Rule 12(b)(6) consideration is limited to facts stated on the face of the complaint, in documents appended to the complaint or incorporated in the...