Rivera v. Royce

ALBERT RIVERA, Plaintiff, v. MARK ROYCE, SUPT. OF GREEN HAVEN CORR. FACILITY, et al., Defendants.

19-CV-10425 (PMH)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

June 11, 2021

MEMORANDUM OPINION AND ORDER

PHILIP M. HALPERN, United States District Judge:

Plaintiff Albert Rivera ("Plaintiff"), proceeding pro se and in forma pauperis, brings this action under 42 U.S.C. § 1983 against Superintendent Mark Royce ("Royce"), Deputy Superintendent of Security Anthony Russo ("Russo"), Captain Norton ("Norton"), Correction Officer Tracy Ott ("Ott"), and Correction Officer Jhandry Zevallos ("Zevallos," and collectively, "Defendants") for violating his constitutional rights while he was incarcerated at Green Haven Correctional Facility ("Green Haven") in Stormville, New York. (See generally Doc. 38, "SAC"). Specifically, Plaintiff alleges that Defendants violated his Eighth and Fourteenth Amendment¹ rights, along with rights secured by the New York State Constitution, by failing to protect him from an attack by another inmate and, thereafter, placing him in Involuntary Protective Custody ("IPC") for approximately 142 days. (See generally, id.).

Defendants filed a motion to dismiss the SAC, the operative pleading, on December 28, 2020. (Doc. 43; Doc. 44 "Def. Br."). Plaintiff did not file his opposition; rather, Plaintiff mailed his opposition to Defendants' counsel who, thereafter, filed it with the Court on February 17, 2021 as an attachment to a letter. (Doc. 50-1, "Opp."). The motion was briefed fully with the filing of Defendants' reply memorandum of law in further support of their motion to dismiss on March 15, 2021. (Doc. 52, "Reply Br.").

For the reasons set forth below, Defendants' motion to dismiss is GRANTED.

BACKGROUND

Plaintiff alleges that at 6:40 p.m. on October 11, 2019, while incarcerated at Green Haven, he was assaulted in the recreation yard by a then-unknown inmate wielding an unidentified weapon. (SAC ¶ 13). As Plaintiff tried to protect himself, he heard unidentified officers yell, "Stop fighting[!]" (Id. ¶ 17). Plaintiff disengaged from the fight and walked toward two officers—Ott and Zevallos—"for protection." (Id.). Upon reaching the officers, Ott told Zevallos to "restrain" Plaintiff; Ott, in turn, tried to restrain the assailant. (Id. ¶ 18). Zevallos did not restrain Plaintiff physically, but, rather, stood beside him. (Id. ¶ 19). Ott, in a similar fashion, simply instructed the attacker to put his hands in his pockets as she walked him away. (Id.). Of note, Plaintiff alleges that Ott walked behind the other inmate. (Id.).

It was at this juncture that the attacker revealed a weapon—presumably the same weapon used during the initial encounter—lunged at Plaintiff, and yelled, "I'm gonna kill you[!]" (Id. ¶ 22). Although Zevallos unholstered his pepper spray, he did not discharge it. (Id. ¶ 21). Plaintiff claims that, as his attacker charged, both Zevallos and Ott "jump[ed] out of the way, allowing the inmate assailant to stab and cut [him] three (3) times." (Id. ¶ 23). At this point, "an alarm sounded . . . [and a] response team" was "dispatched to the yard." (Id. ¶ 24). Plaintiff insists that neitherZevallos nor Ott tried to intervene in the second attack. (Id.). After "the response team arrived," Plaintiff was taken immediately to the infirmary for treatment. (Id. ¶ 25).

The next day, October 12, 2019, Plaintiff was charged with four violations (fighting, refusing a direct order, creating a disturbance, and violent conduct). (Id. ¶ 26; SAC Ex. A). A hearing on these violations began on October 15, 2019, was adjourned, and then concluded on October 21, 2019. (Id. ¶ 27; id. at pp. 14-15 ("SAC Ex. B")). While that hearing was pending, on October 18, 2019, Norton approved a recommendation that Plaintiff be placed in IPC. (Id. ¶ 28; id. at pp. 18-19 ("SAC Ex. D")). On October 21, 2019, Plaintiff was adjudicated not guilty as to each violation and "immediately transferred to" IPC. (Id. ¶ 27). A hearing regarding Plaintiff's IPC placement was thereafter held on October 25, 2019, and the placement was confirmed. (Id. ¶ 29; id. at pp. 16-17 ("SAC Ex. C")).

The IPC placement was reviewed on February 12, 2020. (Id. ¶ 30; id. at pp. 20-21 ("SAC Ex. E")). According to that review, Plaintiff was held in IPC because he was "assaulted by inmates," had been "uncooperative with investigation," and his continued placement in IPC was necessary to protect him from unknown attackers. (SAC Ex. E). Plaintiff insists that officials knew who attacked him and, in fact, paperwork attached to the SAC identifies his attacker. (Id. ¶ 30; see also SAC Ex. A; SAC Ex. D). Despite the IPC placement review's recommendation that Plaintiff remain in IPC "until other suitable housing can be found," Plaintiff was released into the general population on March 11, 2020. (Id. ¶ 31; see also SAC Ex. D). This suit followed.

STANDARD OF REVIEW

I. Federal Rule of Civil Procedure 12(b)(1)

"Federal courts are courts of limited jurisdiction, and Rule 12(b)(1) requires dismissal of an action 'when the district court lacks the statutory or constitutional power to adjudicateit.'" Schwartz v. Hitrons Sols., Inc., 397 F. Supp. 3d 357, 364 (S.D.N.Y. 2019) (quoting Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000)). "The party invoking the Court's jurisdiction bears the burden of establishing jurisdiction exists." Hettler v. Entergy Enters., Inc., 15 F. Supp. 3d 447, 450 (S.D.N.Y. 2014) (citing Conyers v. Rossides, 558 F.3d 137, 143 (2d Cir. 2009)). When deciding a motion to dismiss under Rule 12(b)(1) at the pleadings stage, "the Court 'must accept as true all material facts alleged in the complaint and draw all reasonable inferences in the plaintiff's favor.'" Id. (quoting Conyers, 558 F.3d at 143); see also Doe v. Trump Corp., 385 F. Supp. 3d 265, 274 (S.D.N.Y. 2019).

When "the defendant moves for dismissal under Rule 12(b)(1) . . . as well as on other grounds, the court should consider the Rule 12(b)(1) challenge first since if it must dismiss the complaint for lack of subject matter jurisdiction, the accompanying defenses and objections become moot and do not need to be determined." Saint-Amour v. Richmond Org., Inc., 388 F. Supp. 3d 277, 286 (S.D.N.Y. 2019) (quoting United States v. New York City Dep't of Hous., Pres. & Dev., No. 09-CV-6547, 2012 WL 4017338, at *3 (S.D.N.Y. Sept. 10, 2012)).

II. Federal Rule of Civil Procedure 12(b)(6)

A Rule 12(b)(6) motion enables a court to 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)). A claim is plausible on its face "when the plaintiff pleads factual content that 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 defendanthas acted unlawfully." Id. (citing Twombly, 550 U.S. at 556). The factual allegations pled "must be enough to raise a right to relief above the speculative level . . . ." Twombly, 550 U.S. at 555.

"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 "take all well-ple[d] factual allegations as true, and all reasonable inferences are drawn and viewed in a light most favorable to the plaintiff[]." Leeds v. Meltz, 85 F.3d 51, 53 (2d Cir. 1996). The presumption of truth, however, "'is inapplicable to legal conclusions,' and '[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.'" Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (quoting Iqbal, 556 U.S. at 678 (alteration in original)). Therefore, 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 proper "where a plaintiff has clearly failed to meet minimum pleading requirements." Thomas v. Westchester Cty., No. 12-CV-6718, 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 trueall 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. Yet, the Court has also a duty to interpret "the pleadings of a pro se plaintiff liberally and interpret them 'to raise the strongest...