Opinion
03-CV-0868E(Sr).
February 10, 2004
DECISION and ORDER
INTRODUCTION
Plaintiff Henry James, an inmate of the Greenhaven Correctional Facility, has filed this pro se action seeking relief under 42 U.S.C. § 1983 (Docket No. 1) and has both requested permission to proceed in forma pauperis and filed a signed Authorization (Docket No. 2). Plaintiff claims that the defendants, Commissioner of Correctional Services Glenn S. Goord, Governor George E. Pataki, Attica Correctional Facility Superintendent Victor Herbert, Lieutenant Gilmore, correctional officers George Heltz and Kevin Arnone, violated his constitutional rights by subjecting him to a pattern of excessive force in retaliation for filing a grievance, and failure to protect. For the reasons discussed below, plaintiff's request to proceed as a poor person is granted, several of his claims are dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B) and 1915A, and service by the U.S. Marshals is ordered with respect to the remaining claims.
DISCUSSION
Because plaintiff has met the statutory requirements of 28 U.S.C. § 1915(a) and filed an Authorization with respect to this action, plaintiff is granted permission to proceed in forma pauperis. Section 1915(e)(2)(B) of 28 U.S.C. provides that the Court shall dismiss a case in which in forma pauperis status has been granted if the Court determines that the action (i) is frivolous or malicious; (ii) fails to state a claim upon which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief. In addition, 28 U.S.C. § 1915A(a) requires the Court to conduct an initial screening of "a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity," id., regardless of whether or not the inmate has sought in forma pauperis status under 28 U.S.C. § 1915.In evaluating the complaint, the Court must accept as true all factual allegations and must draw all inferences in plaintiff's favor. See King v. Simpson, 189 F.3d 284, 287 (2d Cir. 1999). Dismissal is not appropriate "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). "This rule applies with particular force where the plaintiff alleges civil rights violations or where the complaint is submitted pro se." Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir. 1998). Based on its evaluation of the complaint, the Court finds that several of plaintiff's claims must be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and 1915A(b) because they fail to state a claim upon which relief may be granted.
Plaintiff brings this action pursuant to 42 U.S.C. § 1983. In order to state a claim under § 1983, plaintiff must allege (1) that the challenged conduct was attributable at least in part to a person acting under color of state law, and (2) that such conduct deprived plaintiff of a right, privilege, or immunity secured by the Constitution or laws of the United States. Dwares v. City of New York, 985 F.2d 94, 98 (2d Cir. 1993).
Claims against Goord, Pataki and Herbert
A prerequisite for liability under § 1983 is personal involvement by the defendants in the alleged constitutional deprivation. Sealey v. Giltner, 116 F.3d 47, 51 (2d Cir. 1997); Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir. 1986). Such involvement on the part of a supervisory official may be shown in one of several ways:
if he or she (1) directly participated in the violation; (2) failed to remedy the violation after learning of it through a report or appeal; (3) created a custom or policy fostering the violation or allowed the custom or policy to continue after learning of it; or (4) was grossly negligent in supervising subordinates who caused the violation.Sealey v. Giltner, 116 F.3d at 51 (citing Williams v. Smith, 781 F.2d at 323-24).
The pertinent allegations regarding the personal involvement of these defendants is as follows. In April, plaintiff filed a grievance about a correctional officer throwing his legal papers, and he was then hit in May by the correctional officer during a pat frisk. At that time he filed another grievance, during the investigation of which, in June, he was threatened and again assaulted, this time by the investigating officer. Plaintiff sent a letter on April 17 to Superintendent Herbert regarding the harassment. Herbert signed the denial of the May and June grievances. There is no copy of a response to the April grievance, and plaintiff alleges that it was ignored. Similarly, plaintiff sent letters in April to Commissioner Goord regarding harassment, and then on June 4 regarding the retaliatory assaults. Plaintiff alleges a response by Goord to the April letter, in which he refers the concern to the Superintendent of the facility, Herbert. Plaintiff wrote a letter May 26 to Governor Pataki regarding harassment and retaliation by correctional officer Holtz. Plaintiff alleges no response from Governor Pataki to the May letter.
The bare fact that the defendant occupies a high position in the New York State prison hierarchy is insufficient to sustain a plaintiff's claim. Colon v. Coughlin, 58 F.3d 865, 874 (2d Cir. 1995). A claim which fails to demonstrate a defendant's personal involvement in the alleged constitutional deprivation is subject to sua sponte dismissal. Sealey v. Giltner, 116 F.3d at 51; see Neitzke v. Williams, 490 U.S. 319, 323 n. 2, 109 S.Ct. 1827, 1830 n. 2, 104 L.Ed.2d 338 (1989). The complaint does not sufficiently allege the personal involvement of Governor Pataki. In this situation, the allegation that Governor Pataki ignored a prisoner's letter protesting unconstitutional conduct is not itself sufficient to allege the personal involvement of the official so as to create liability under § 1983. See Kinch v. Artuz, 1997 WL 576038, at *3 (S.D.N.Y. 1997); Higgins v. Coombe, 1997 WL 328623, at *11 (S.D.N.Y. 1997).
With regard to Commissioner Goord, plaintiff's own allegations regarding the situation do not show that Goord was deliberately indifferent in failing to protect plaintiff. On the contrary, plaintiff alleges that in response to the April letter complaining that his legal papers were thrown, Goord referred the matter to the prison Superintendent, Herbert. In Sealey v. Giltner, 116 F.3d 47, 51 (2d Cir. 1997), the plaintiff sent two letters to the defendant prison official. The first letter, an appeal from an administrative segregation hearing, was referred by the receiving official to another official for determination. The second letter was a status inquiry to which the official responded by informing the prisoner that a decision had been rendered. The Second Circuit found that this conduct on the part of the defendant official, without more, "[did] not demonstrate the requisite personal involvement" to support a finding of liability. 116 F.3d at 51. But see Heron v. Dalsheim, 95 Civ. 2625(JFK), 1999 WL 2871 at *5 (S.D.N.Y. Jan. 4, 1999) ("Courts have found personal involvement of a supervisory official where a plaintiff has sent letters to or orally informed the official of an ongoing constitutional violation." (citations omitted)). In any event, the context of this notice to defendant Goord, if any, is insufficient to allege Goord's personal involvement in a failure to protect violation. The letter James sent in April referred only to correctional officer Heltz having thrown plaintiff's legal papers. There is no allegation of excessive force or assault at that time. Plaintiff did not write to Goord again until June, after the second alleged assault had occurred. And plaintiff does not assert that any further assaults, or similarly serious events, have followed. Nor does plaintiff allege that Gourd plaintiff created, or allowed to continue, a custom or policy fostering the violation. Accordingly, the claims against Goord and Pataki are dismissed.
With regard to Superintendent Herbert's involvement in the failure to protect, plaintiff alleges, and the grievance documents supplied support, that Herbert denied not only the initial grievance, but also the grievance of the assault that occurred during the interview of the previous assault, even though plaintiff was apparently treated for injuries above his eye on the day after the interview of the grievance. The Court cannot say, in the face of these allegations, that the plaintiff could prove no facts that could show personal involvement by Superintendent Herbert in a constitutional violation. The claim against Herbert may go forward at this stage in the proceeding.
Official Capacity Claims
The Eleventh Amendment bars federal courts from exercising subject matter jurisdiction over claims against states absent their consent to such suit or an express statutory waiver of immunity. See Pennhurst State School Hospital v. Halderman, 465 U.S. 89, 98-100, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984). It is well-settled that states are not "persons" under § 1983, and thus Eleventh Amendment immunity is not abrogated by that statute. Will v. Michigan Dept. of State Police, 491 U.S. 58, 65-66, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). The Eleventh Amendment bar extends to agencies and officials sued in their official capacities. Kentucky v. Graham, 473 U.S. 159, 166, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985). Plaintiff may therefore sue the defendants in their official capacity only if they consent to be sued. Pennhurst, 465 U.S. 89 at 199-201, 104 S.Ct. 900, 79 L.Ed.2d 67. Since none have consented, the Eleventh Amendment bars the plaintiff's suit against the defendants in their official capacity, to the extent that such claims have been made.
CONCLUSION
Because plaintiff has met the statutory requirements of 28 U.S.C. § 1915(a) and filed an Authorization with respect to the filing fee, his request to proceed in forma pauperis is hereby granted. For the reasons discussed above, plaintiff's claims against Goord and Pataki and all official capacity claims are dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and 1915A, and the U.S. Marshal is directed to serve the summons and complaint on Herbert, Heltz, Gilmore and Arnone regarding the remaining claims.
ORDER
IT HEREBY IS ORDERED, that plaintiff's request to proceed in forma pauperis is granted;
FURTHER, that claims against Goord and Pataki and all official capacity claims are dismissed;
FURTHER, that the Clerk of the Court is directed to terminate defendants Goord and Pataki as parties to this action;
FURTHER, that the Clerk of the Court is directed to file plaintiff's papers, and to cause the United States Marshal to serve copies of the Summons, Complaint, and this Order upon Herbert, Heltz, Gilmore and Arnone without plaintiff's payment therefor, unpaid fees to be recoverable if this action terminates by monetary award in plaintiff's favor;
FURTHER, that pursuant to 42 U.S.C. § 1997e(g)(2), the defendants are directed to answer the complaint.
SO ORDERED.