624 F. Supp. 2d 185

Trevor BURNS, Plaintiff, v. Sgt. W. TROMBLY, Correctional Officer; Upstate C.F.; S. Brown, Correctional Officer, Upstate C.F.; T. Quinn, Correctional Officer, Upstate C.F.; M. Lavigne, Correctional Officer, Upstate C.F.; J. Colby, Correctional Officer, Upstate C.F.; C. Crossman, Correctional Officer, Upstate C.F.; Sgt. John Doe I, Correctional Officer, Upstate C.F.; Sgt. John Doe II, Correctional Officer, Upstate C.F.; Lt. John Doe I, Correctional Officer, Upstate C.F.; Lt. John Doe II, Correctional Officer, Upstate C.F.; J. McGraw, Correctional Officer, Upstate C.F.; E. Russell, Correctional Officer, Upstate C.F.; B. Clark, Correctional Officer, Upstate C.F.; G. Waterson, Registered Nurse, Upstate C.F.; J. Cheseboro, Registered Nurse, Upstate C.F.; Captain D. Uhler, Correctional Officer, Upstate C.F.; Donald Wood, Correctional Officer, Upstate C.F.; and Robert K. Woods, Superintendent, Upstate C.F., Defendants.

Civil Action No. 9:05-cv-1204 (GLS/GHL).

United States District Court, N.D. New York.

May 7, 2008.

*187Trevor Burns, Attica Correctional Facility, Attica, NY, pro se.

Hon. Andrew M. Cuomo, Attorney General for the State of New York, Maria Moran, Assistant Attorney General, of Counsel, Albany, NY, for Defendants.

ORDER

GARY L. SHARPE, District Judge.

The above-captioned matter comes to this court following a Report-Recommendation by Magistrate Judge George H. Lowe, duly filed March 21, 2008. Following ten days from the service thereof, the Clerk has sent the file, including any and all objections filed by the parties herein.

No objections having been filed, and the court having reviewed the Magistrate Judge’s Report-Recommendation for clear error, it is hereby

ORDERED, that the Report-Recommendation of Magistrate Judge George H. Lowe filed March 21, 2008 is ACCEPTED in its entirety for the reasons state therein, and it is further

ORDERED, that Defendants’ motion for partial summary judgment (Dkt. No. 58) is GRANTED, and that Plaintiffs claims against the four “John Doe” defendants are dismissed without prejudice, and it is further

ORDERED, that Plaintiffs official-capacity claims, and his Fourteenth Amendment claims, against the remaining defendants are dismissed with prejudice, and it is further

ORDERED, that Plaintiffs Eighth Amendment claims against Defendants Quinn, Clark, Uhler and Robert Woods in their individual capacities are dismissed with prejudice.

IT IS SO ORDERED

REPORT-RECOMMENDATION

GEORGE H. LOWE, United States Magistrate Judge.

This pro se prisoner civil rights action, brought pursuant to 42 U.S.C. § 1983, has been referred to the undersigned for Report and Recommendation by the Honorable Gary L. Sharpe, United States District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c) of the Local Rules of Practice for this Court. Generally, in this action, Trevor Burns (“Plaintiff’), an inmate at Attica Correctional Facility, alleges that, when he was incarcerated at Upstate Correctional Facility during October 2004, eighteen employees of the New York State Department of Correctional Services (“DOCS”) violated his constitutional rights under the Eighth and Four*188teenth Amendments when (1) they used excessive force during an attempt to move Plaintiff to a different prison cell, and (2) they were deliberately indifferent to Plaintiffs serious medical needs arising from that use of excessive force. (See generally Dkt. No. 1.)

Currently pending before the Court is Defendants’ motion for partial summary judgment, which seeks the dismissal of the following claims: (1) Plaintiffs claims against the four “John Doe” Defendants; (2) Plaintiffs claims against the remaining fourteen Defendants in their official capacities; (3) Plaintiffs Fourteenth Amendment claims against the remaining fourteen Defendants; and (4) Plaintiffs Eighth Amendment claims against Defendants Quinn, Clark, Uhler and Robert Woods in their individual capacities. (Dkt. No. 58.)1 For the reasons set forth below, I recommend that Defendants’ motion for partial summary judgment be granted.

I. BACKGROUND

A. Summary of Plaintiffs Complaint

Liberally construed, Plaintiffs Complaint (Dkt. No. 1) alleges as follows.

On or about October 14, 2004, Defendant Trombly ordered Defendants Brown and Donald Wood to move Plaintiff from “10 ... C Company 25 Cell to 10 ... B Company 5 Cell by any means of force.” (Dkt. No. 1, ¶ 6[4] [Plf.’s Compl.].) Defendants Brown and Donald Wood applied full restraints to Plaintiff. (Id. at ¶ 6[5].) Once the restraints had been secured, Defendants Brown and Donald Wood carried Plaintiff from one cell to the next-Defendant Donald Wood with a retention strap in one hand and Plaintiffs shirt in the other, and Defendant Brown with Plaintiffs shirt in one hand and Plaintiffs handcuffed wrists in the other. (Id. at ¶ 6[6].) Once they reached 10 B Company 5 Cell, Defendant Trombly became “extremely angry,” and he and Defendant Quinn ordered Defendants Lavigne and Colby to dress in “riot gear [and] to use force on [Plaintiff].” (Id. at ¶¶ 6[7], 6[9].)

At that point, Plaintiff alleges the following uses of excessive force occurred on or about October 14, 2004:

1. Defendant Lavigne attempted to “bang [Plaintiffs] head against the wall,” and Defendants Brown, Lavigne and Donald Wood together succeeded in “forcefully bangfing] [Plaintiffs] head against the wall with tremendous force.” (Id. at ¶¶ 6[10]-6[11].)

2. Defendants Brown, Lavigne, Colby, Crossman and Donald Wood “pulled [Plaintiff] from the wall and forcefully slamed [sic] [Plaintiff] to the floor ... face first [,] with [Defendant] Colby grabbing [Plaintiffs] head [and] slaming [sic] it down to the ground with tremendous force.” (Id. at ¶ 6[12].)

3. Defendant Colby choked Plaintiff by placing his knee on Plaintiffs head and grabbing his neck. (Id. at ¶ 6[13].)

4. Defendants Brown, Lavigne, Cross-man and Donald Wood “all forcefully pressed on top of [Plaintiff] causing [Plaintiff] to gasph [sic] for air and fall unconscious.” (Id. at ¶ 6[13].)

5. Defendant Brown tightened Plaintiffs handcuffs “beyond full capacity,” causing Plaintiff to “scream in pain and his *189hands to swell like boxing gloves.” (Id. at ¶ 6[14].)

6. Upon Defendant Trombly’s orders, Defendants Colby, Crossman, Lavigne, Brown and Donald Wood picked up Plaintiff and threw him into his new cell, which caused Plaintiff to hit his head on the side of his bed. (Id. at ¶ 6[15].)

7. Defendant Trombly ordered Defendants Crossman and Donald Wood to tie Plaintiffs arms and legs with a sheet and “push him under the bed.” (Id. at ¶ 6[16].)

8. Plaintiff lost consciousness while Defendants Sgt. John Doe 1, Sgt. John Doe 2, Lt. John Doe 1, and Lt. John Doe 2 watched him from the cell door. (Id. at ¶ 6[17].)

9. Defendants Lavigne, McGraw, Crossman, Russell, and Trombly took Plaintiff to the hospital, and as they were taking him back after he had been medically cleared, Plaintiff “felt numerous blows about the head, back, ribs and [felt a] final blow from a blunt object to the back of the head knocking [Plaintiff] unconscious again.” (Id., at ¶¶ 6[18]~6[21].)

10. Upon Defendant Trombly’s orders, Defendants Lavigne, Crossman, Colby, and Brown threw him into his cell face first while both his arms and legs were restrained. (Id. at ¶ 6[24].)

11. Defendant Brown slammed Plaintiffs head into the ground. (Id. at ¶ 6[25].)

12. Defendant Trombly again ordered Defendant Donald Wood to tie Plaintiffs hands and feet with sheets and push him under the bed. (Id. at ¶ 6[26].)

13. While Defendant Burns tied Plaintiffs hands and feet with sheets, Defendants Lavigne and Brown “applied tremendous presure [sic]” to Plaintiffs back and shoulders, “causing [him] to scream in pain.” (Id. at ¶ 6[27].)

After the actions outlined above took place, Plaintiff states he suffered “abrasions on both wrist [sic], ankles, face, and back, swelling about the cheeks eye’s [sic], two massive knots on the back and side of the head, [and] sharp shocking pain in the back and head with a little blood from the mouth and nose.” (Id. ¶ 6[29].) He states that he fell unconscious at approximately 11:00 a.m., drifting in and out of consciousness. (Id. at ¶¶ 6[30]-6[31].) At about that time, Defendant Clark took photographs of Plaintiffs injuries, and ignored his plea for medical assistance. (Id. at ¶ 6[31].)

At or about 1:30 p.m., Plaintiff became unconscious again, and Defendant Water-son arrived at his cell for emergency sick call at or about 2:30 p.m. (Id. at ¶¶ 6[32]-6[33].) After explaining his symptoms and the nature of his injuries to Defendant Waterson, Plaintiff was informed by Defendant Waterson that “his condition [was] not an emergency” and “your [sic] a big guy you can handle it.” (Id. at ¶¶ 6[34]-6[36].) On or about October 15, 2004, Plaintiff again requested emergency sick call after falling unconscious in his cell. (Id. at ¶¶ 6[37]-6[38].) After showing Defendant Cheseboro his injuries, Defendant Cheseboro refused to treat Plaintiff, stating that there was no emergency condition and that Plaintiff was abusing the sick call system. (Id. at ¶¶ 6[40]— 6[42].)

On or about October 18, 2004, Plaintiff sent Defendant Robert Woods a letter requesting an investigation of the above outlined events. (Id. at ¶ 6[43].) On or about October 21, 2004, Plaintiff received a letter from Defendant Uhler, stating that upon investigation, all staff members were found to have acted appropriately. (Id. at ¶¶ 6[45]-6[46].)

B. Summary of Defendants’ Motion for Partial Summary Judgment

In their motion, Defendants argue that the majority of claims asserted in Plain*190tiffs Complaint should be dismissed for four reasons. (Dkt. No. 58, Part 3, at 3-9 [Defs.’ Mem. of Law].) First, Defendants argue that Plaintiffs claims against the four “John Doe” Defendants should be dismissed because those four Defendants have not yet been named by Plaintiff, or served with process, during the 120 days following the filing of the complaint, and Plaintiff has failed to show good cause excusing this failure. (Id. at 1, note 1.) Second, Defendants argue that Plaintiffs claims against the remaining fourteen Defendants in their official capacities should be dismissed because those state employees are protected from liability, for actions taken in their official capacities, under the Eleventh Amendment. (Id. at 1.) Third, Defendants argue that Plaintiffs Fourteenth Amendment claims against the remaining fourteen Defendants should be dismissed because there are no factual allegations, or evidence, establishing any violation of the Fourteenth Amendment (only factual allegations asserting a violation of the Eighth Amendment). (Id. at 7-8.) Finally, Defendants argue that Plaintiffs Eighth Amendment claims against Defendants Quinn, Clark, Uhler and Robert Woods in their individual capacities should be dismissed because Plaintiff has failed to adduce sufficient record evidence to establish the requisite personal involvement of those four Defendants in the constitutional violations alleged. (Id. at 3-7.)

II. GOVERNING LEGAL STANDARDS

A. Motion for Summary Judgment

Under Fed.R.Civ.P. 56, summary judgment is warranted if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). In determining whether a genuine issue of material fact exists,2 the Court must resolve all ambiguities and draw all reasonable inferences against the moving party.3

However, when the moving party has met its initial burden of establishing the absence of any genuine issue of material fact, the nonmoving party must come forward with “specific facts showing that there is a genuine issue for trial.”4 The nonmoving party must do more than “rest upon the mere allegations ... of the [plaintiffs] pleading” or “simply show that there is some metaphysical doubt as to the material facts.”5 Rather, “[a] dispute regarding a material fact is genuine if the *191evidence is such that a reasonable jury could return a verdict for the nonmoving party.”6

What this burden-shifting standard means when a plaintiff has failed to properly respond to a defendant’s Rule 7.1 Statement of Material Facts is that the facts as set forth in that Rule 7.1 Statement will be accepted as true7 to the extent that (1) those facts are supported by the evidence in the record,8 and (2) the non-moving party, if he is proceeding pro se, has been specifically advised of the potential consequences of failing to respond to the movant’s motion for summary judgment.9

implied in the above-stated standard is the fact that a district court has no duty to perform an independent review of the record to find proof of a factual dispute, even if the non-movant is proceeding pro se.10

In the event the district court chooses to conduct such an independent review of the record, any affidavit submitted by the nonmovant, in order to be sufficient to create a factual issue for purposes of a summary judgment motion, must, among other things, not be conclusory.11 (An affidavit is conclusory if, for example, its assertions lack any supporting factual detail or are too general.)12 Moreover, the affidavit’s assertions must be made on personal *192knowledge.13 Finally, even where an affidavit is nonconclusory and is made on personal knowledge, it may be insufficient to create a factual issue where it is (1) “largely unsubstantiated by any other direct evidence” and (2) “so replete with inconsistencies and improbabilities that no reasonable juror would undertake the suspension of disbelief necessary to credit the allegations made in the complaint.”14

B. Recently Clarified Legal Standard for Motions to Dismiss

To the extent that a defendant’s motion for summary judgment under Fed.R.Civ.P. 56 is based entirely on the plaintiffs complaint,15 such a motion is functionally the same as a motion to dismiss for failure to state a claim under Fed.R.Civ.P. 12(b) (6). As a result, “[wjhere appropriate, a trial judge may dismiss for failure to state a cause of action upon motion for summary judgment.” Schwartz v. Compagnie General Transatlantique, 405 F.2d 270, 273-74 (2d Cir.1968) [citations omitted], accord, Katz v. Molic, 128 F.R.D. 35, 37-38 (S.D.N.Y.1989) (“This Court finds that ... a conversion [of a Rule 56 summary judgment motion to a Rule 12(b)(6) motion to *193dismiss the complaint] is proper with or without notice to the parties.”).

Moreover, even where a defendant has not advanced such a failure-to-state-a-claim argument on a motion for summary judgment, a district court may, sua sponte, address whether a pro se prisoner has failed to state a claim upon which relief may be granted.16

For these reasons, it is appropriate to briefly summarize the recently revised legal standard governing Rule 12(b)(6) motions to dismiss. Under Fed.R.Civ.P. 12(b)(6) of the Federal Rules of Civil Procedure, a defendant may move to dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed. R.Civ.P. 12(b)(6). It has long been understood that a defendant may base such a motion on either or both of two grounds: (1) a challenge to the “sufficiency of the pleading” under Fed.R.Civ.P. 8(a)(2);17 or (2) a challenge to the legal cognizability of the claim.18

*194Rule 8(a)(2) requires that a pleading include “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Such a statement must “give the defendant fair notice of what the plaintiffs claim is and the grounds upon which it rests.”19 The purpose of this rule is to “facilitate a proper decision on the merits.”20 A complaint that fails to comply with this rule “presents far too a heavy burden in terms of defendants’ duty to shape a comprehensive defense and provides no meaningful basis for the Court to assess the sufficiency of [plaintiffs] claims.”21

The Supreme Court has long characterized this pleading requirement under Fed. R.Civ.P. 8(a)(2) as “simplified” and “liberal,” and has repeatedly rejected judicially established pleading requirements that exceed this liberal requirement.22 However, it is well established that even this liberal notice pleading standard “has its limits.”23 As a result, several Supreme Court decisions, and Second Circuit decisions, exist holding that a pleading has failed to meet this liberal notice pleading standard.24

Most notably, in the recent decision of Bell Atlantic Corporation v. Twombly, the Supreme Court, in reversing an appellate *195decision holding that a complaint had stated a claim upon which relief could be granted, “retire[d]” the famous statement by the Court in Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), that “a complaint should not be dismissed for failure to state a claim 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.” 550 U.S. 544, 127 S.Ct. 1955, 1968-69, 167 L.Ed.2d 929 (2007).25 Rather than turning on the conceivability of an actionable claim, the Court clarified, the Rule 8 standard turns on the “plausibility” of an actionable claim. Id. at 1965-74. More specifically, the Court held that, for a plaintiffs complaint to state a claim, his “[fjactual allegations must be enough to raise a right to relief above the speculative level [to a plausible level]” assuming, of course, that all the allegations in the complaint are true. Id. at 1965 [citations omitted]. What this means, on a practical level, is that there must be “plausible grounds to infer [actionable conduct],” or, in other words, “enough fact to raise a reasonable expectation that discovery will reveal evidence of [actionable conduct].” Id.

The Second Circuit has repeatedly recognized the controlling nature of the clarified plausibility standard that was articulated by the Supreme Court in Twombly. See Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir.2007) (“[W]e believe the [Supreme] Court [in Bell Atlantic Corp. v. Twombly ] is ... requiring a flexible ‘plausibility standard,’ which obliges a pleader to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible.”) [emphasis in original]; In re Elevator Antitrust Litigation, 502 F.3d 47, 50 (2d Cir.2007) (“We affirm the district court’s dismissal of the conspiracy claims because plaintiffs are unable to allege facts that would provide ‘plausible grounds to infer an agreement’ [under Bell Atlantic v. Twombly ]”); cf. Goldstein v. Pataki, 516 F.3d 50, 56 (2d Cir.2008) (“Twombly requires ... that the complaint’s ‘[fjactual allegations be enough to raise a right to relief above the speculative level (4)27’ ”) [internal citation omitted].26

*196Having said that, it should be emphasized that, “[i]n reviewing a complaint for dismissal under Fed.R.Civ.P. 12(b)(6), the court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiffs favor.”27 “This standard is applied with even greater force where the plaintiff alleges civil rights violations or where the complaint is submitted pro se.”28 In other words, while all pleadings are to be construed liberally, pro se civil rights pleadings are to be construed with an extra degree of liberality. For example, the mandate to read the papers of pro se litigants generously makes it appropriate to consider a plaintiffs papers in opposition to a defendant’s motion to dismiss as effectively amending the allegations of the plaintiffs complaint, to the extent that those factual assertions are consistent with the allegations of the plaintiffs complaint.29 Moreover, “courts must construe pro se pleadings broadly, and interpret them to raise the strongest arguments that they suggest.”30 Furthermore, when addressing a pro se complaint, generally a district court “should not dismiss without granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated.”31

However, when a plaintiff is proceeding pro se, “all normal rules of pleading are *197not absolutely suspended.”32 For example, an opportunity to amend should be denied where “the problem with [plaintiffs] causes of action is substantive” such that “[b]etter pleading will not cure it.”33

III. ANALYSIS

A. Claims Against Four “John Doe” Defendants

In his Opposition Memorandum of Law, Plaintiff does not respond to Defendants’ argument that Plaintiffs claims against the four “John Doe” Defendants should be dismissed because those four Defendants have not yet been named or served by Plaintiff. (Dkt. No. 60, Part 2 [Plf.’s Opp. Memo, of Law].)

Under Local Rule 7.1(b)(3) of the Local Rules of Practice for this Court, “[w]here a properly filed motion is unopposed and the Court determines that the moving party has met its burden to demonstrate entitlement to the relief requested therein, the non-moving party’s failure to file or serve any papers as required by this Rule shall be deemed as consent to the granting or denial of the motion, as the case may be, unless good cause be shown.” N.D.N.Y. L.R. 7.1(b)(3). Because Plaintiff has failed to oppose that portion of Defendants’ motion requesting dismissal of Plaintiffs claims against the four “John Doe” Defendants, Plaintiff has “consented” to that motion under Local Rule 7.1(b)(3). Because Plaintiff has “consented” to that portion of Defendants’ motion, the only remaining issue is whether Defendants have met their burden “to demonstrate entitlement to the relief requested” through that argument. This burden has appropriately been characterized as “modest.”34 This is *198because, as a practical matter, the burden requires only that Defendants present an argument that is “facially meritorious.”35 Here, I find that Defendants’ argument is, at the very least, facially meritorious.

On September 23, 2005, Plaintiff filed his Complaint in this action. (Dkt. No. 1.) On December 1, 2005, the Court issued an Order directing Plaintiff, inter alia, to “comply with any requests by the Clerk’s Office for any documents that are necessary to maintain this action.” (Dkt. No. 6, at 6) [Order of District Judge Gary' L. Sharpe.] On December 20, 2005, the Clerk’s Office notified Plaintiff that he must submit completed “USM 285 [F]orms” for' each of the Defendants in order for the U.S. Marshals Service to be able to effect service of process on those Defendants.- (Dkt. No. 8.) On March 23, 2006, Plaintiff was reminded of this duty. (Dkt. No. 12.)

During the nearly two years that have followed since the issuance of that reminder, Plaintiff has been given an adequate opportunity to conduct discovery in this matter. For example, on October 11, 2006, the Court filed a Scheduling Order, permitting a six-month period of time in which to conduct discovery in this action. (Dkt. No. 37.) On April 27, 2007, the Court extended that discovery period by two months. (Dkt. No. 54.) Indeed, on June 22, 2007, the Court granted in part Plaintiffs motion to compel discovery. (Dkt. No. 57.) However, despite these facts, as of the date of this Report-Recommendation, Plaintiff has failed to identify, and submit USM 285 Forms permitting service of process on, the four “John Doe” Defendants in this action.

For all of these reasons, I recommend that Plaintiffs claims against the four “John Doe” Defendants be dismissed without prejudice due to Plaintiffs failure to name or serve those four Defendants.

B. Claims Against Defendants in Their Official Capacities

In response to Defendants’ argument that Plaintiffs claims against the remaining fourteen Defendants in their official capacities should be dismissed under the Eleventh Amendment, Plaintiff states that he “withdraws any claim against all defendants in their official capacities .... ” (Dkt. No. 60, Part 2, at 1, 9, n. 1 [Plf.’s Opp. Memo, of Law].)

For a variety of reasons, Plaintiff is not able, at this late stage in the litigation, to *199file a notice of voluntary dismissal without prejudice of his selected claims against all Defendants in their official capacities. For example, Fed.R.Civ.P. 41 regards dismissals of “actions,” not “claims.” See Fed. R.Civ.P. 41(a)(l)(i). In addition, because both an Answer and a motion for summary judgment have been filed (Dkt.Nos. 35, 38, 53, 58), a voluntary dismissal of this action may be effected only through a Stipulation of Dismissal signed by all the parties to the action, or a Court Order. See Fed. R.Civ.P. 41(a)(l)(i), (2). I would not issue such an Order since, if Plaintiff were permitted to voluntarily dismiss his official-capacity claims without prejudice, he would be permitted to assert them (albeit in vain) later in another action.

However, Plaintiffs statement in footnote 1 of his Opposition Memorandum of Law is effectively a notice that he is consenting to Defendants’ request for dismissal with prejudice of his official-capacity claims. As explained above in Part III.A. of this Report-Recommendation, because Plaintiff has “consented” to that portion of Defendants’ motion under Local Rule 7.1(b)(3), the only remaining issue is whether Defendants have met their burden “to demonstrate entitlement to the relief requested” through that argument. I find that they have done so, for the reasons articulated in their Memorandum of Law. (Dkt. No. 58, Part 3, at 3 [Defs.’ Mem. of Law].)

For all of these reasons, I recommend that Plaintiffs official-capacity claims be dismissed with prejudice because of the Eleventh Amendment.

C. Fourteenth Amendment Claims

In response to Defendants’ argument that Plaintiffs Fourteenth Amendment claims against the remaining fourteen Defendants should be dismissed for failure to establish a Fourteenth Amendment violation, Plaintiff states that he “withdraws any claim against all defendants ... under the Fourteenth Amendment.” (Dkt. No. 60, Part 2, at 1, 9, n. 2 [Plf.’s Opp. Memo, of Law].)

For the same reasons as articulated above in Part III.B. of this Report-Recommendation, I find that Plaintiff may not, at this late stage in the litigation, voluntarily dismiss without prejudice his Fourteenth Amendment claims against Defendants. However, again, Plaintiffs statement in footnote 1 of his Opposition Memorandum of Law is effectively a notice that he is consenting to Defendants’ request for dismissal with prejudice of his Fourteenth Amendment claims. As explained above in Part III.A. of this Report-Recommendation, because Plaintiff has “consented” to that portion of Defendants’ motion under Local Rule 7.1(b)(3), the only remaining issue is whether Defendants have met their burden “to demonstrate entitlement to the relief requested” through that argument. I find that they have done so, for the reasons articulated in their Memorandum of Law. (Dkt. No. 58, Part 3, at 7-8 [Defs.’ Mem. of Law].)

In particular, I note that Plaintiff points to no record evidence establishing a procedural due process violation, substantive due process violation, or equal protection violation, arising from the events alleged in his Complaint. (See generally Dkt. Nos. 1, 60.) Moreover, I note that the Supreme Court has repeatedly held that, “if a constitutional claim is covered by a specific constitutional provision ... Amendment, the claim must be analyzed under the standard appropriate to that specific provision, not under the [more generalized notion] of substantive due process.” United States v. Lanier, 520 U.S. 259, 272, n. 7, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997) (citing Graham v. Connor, 490 U.S. 386, 392-94, 109 *200S.Ct. 1865, 104 L.Ed.2d 443 [1989] ).36 Here, the constitutional claims asserted by Plaintiff are covered by the Eighth Amendment. Therefore, those claims must be analyzed under the Eighth Amendment, and not the more generalized notion of substantive due process under the Fourteenth Amendment.

For all of these reasons, I recommend that Plaintiffs Fourteenth Amendment claims be dismissed with prejudice for failure to adduce sufficient record evidence to establish a violation of the Fourteenth Amendment.

D. Eighth Amendment Claims Against Quinn, Clark, Uhler and Robert Woods

“ ‘[Personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.’ ” Wright v. Smith, 21 F.3d 496, 501 (2d Cir.1994) (quoting Moffitt v. Town of Brookfield, 950 F.2d 880, 885 [2d Cir.1991] ).37 In order to prevail on a cause of action under 42 U.S.C. § 1983 against an individual, a plaintiff must show some tangible connection between the alleged unlawful conduct and the defendant.38 If the defendant is a supervisory official, such as a correctional facility superintendent or a facility health services director, a mere “linkage” to the unlawful conduct through “the prison chain of command” (i.e., under the doctrine of respondeat superior) is insufficient to show his or her personal involvement in that unlawful conduct.39 In other words, supervisory officials may not be held liable merely because they held a position of authority.40 Rather, supervisory personnel may be considered “personally involved” only if they (1) directly participated in the violation, (2) failed to remedy that violation after learning of it through a report or appeal, (3) created, or allowed to continue, a policy or custom under which the violation occurred, (4) had been grossly negligent in managing subordinates who caused the violation, or (5) exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that the violation was occurring.41

In response to Defendants’ argument that Plaintiffs Eighth Amendment claims against Defendants Quinn, Clark, Uhler and Robert Woods in their individual capacities should be dismissed because Plaintiff has failed to adduce sufficient record evidence to establish the requisite personal involvement of those four Defendants in the constitutional violations alleged, Plaintiff argues that, in light of the special status he enjoys as a pro se litigant, the record should be construed as containing *201evidence sufficient to establish the requisite personal involvement of those four Defendants in the constitutional violations alleged. (Dkt. No. 60, Part 2, at 3-4 [Plf.’s Opp. Memo, of Law].)

1. Defendant Quinn

With regard to Defendant Quinn, Plaintiff argues that Defendant Quinn was personally involved in the constitutional violations alleged by ordering Defendant Lavigne to dress in riot gear and use force against Plaintiff. (Id. at 4-5.) As evidence that Defendant Quinn issued such an order, Plaintiff points to only two portions of the record: (1) his sworn assertion on the matter, which is contained at Paragraph “6(9)” of his Verified Complaint; and (2) the “Use of Force Report” regarding the incident in question, attached to Defendants’ motion papers (see Dkt. No. 58, Part 5, at 3-6 [Ex. B-l to Moran Deck]).

Paragraph “6(9)” of Plaintiffs Verified Complaint does not constitute sufficient evidence to create a genuine issue of material fact with regard to Defendant Quinn’s personal involvement in the constitutional violations alleged because the assertion contained in that paragraph is not factually specific in any regard, nor does it indicate that Plaintiff possessed any personal knowledge of the source of the order in question; rather, the assertion is wholly conclusory in nature and based on mere speculation and conjecture. (See Dkt. No. 1, ¶ 6[9] [Plf.’s Compl., alleging that “Sgt./ Lt. Quinn and Sgt. W. Trombly ordered C.O. N. Lavigne and C.O. Colby in riot gear to use force on Burns.”].) See also, supra, notes 11-13 to this Report-Recommendation. I note that, in his deposition, Plaintiff acknowledged that he possessed no personal knowledge of the issuance of any such order (such as his overhearing it), but that his assertion that such an order was issued is based solely on “reports” he had read. (Dkt. No. 58, Part 5, at 27-28 [Ex. B to Moran Deck, attaching pages 56 and 57 of Plf.’s deposition transcript].)

Plaintiffs argument that the “Use of Force Report clearly indicates that defendant Lavigne was ordered by Sgt. Lt. Quinn to use force on plaintiff’ is simply incorrect. (Dkt. No. 60, Part 2, at 5 [Plf.’s Opp. Memo, of Law].) The “Use of Force Report,” and the documents accompanying it, contain no such indication, no matter how much special solicitude is afforded to Plaintiff. (See Dkt. No. 58, Part 5, at 3-19 [Exs. B-l through B-17 to Moran Deck].) In particular, I note that Defendants have adduced evidence that it was Defendant Trombly (and not Defendant Quinn) who issued the order to use force against Plaintiff. (See Dkt. No. 58, Part 5, at 6, 9 [Exs. B-4 and B-7 to Moran Deck].)

Even though the Court has no duty to conduct an independent review of the record to find proof of a factual dispute (see, supra, note 10 of this ReporNRecommendation), I have, out of special solicitude to Plaintiff, reviewed the documents provided by him in opposition to Defendants’ motion, and I note that they contain a memorandum dated October 14, 2004, from Defendant Lavigne to Defendant Trombly, stating, in pertinent part, that “[o]n 10/14/04 at approximately 10:15 A.M., I officer N. Lavigne reported to 10 building B-Gallery per direction of Sergeant Quinn to assist the officers with an unruly inmate to be placed inside 10-B-5 cell.” (Dkt. No. 60, Part 1, at 18 [Ex. C to Plf.’s Deck in Opp.].) This document does not create a genuine issue of material fact with regard to Defendant Quinn’s personal involvement in the constitutional violations alleged for two independent reasons. First, the memorandum says nothing whatsoever about Defendant Quinn ordering Defendant Lavigne to use force against Plaintiff (as opposed to ordering him to assist other *202correctional officers, verbally persuade Plaintiff to enter his cell, and/or contribute to a showing of force to persuade Plaintiff to enter his cell). Indeed, to the contrary, the memorandum states it was a superior officer present at the scene (which Defendant Quinn was not, according to the available record evidence)42 who directed that Defendant Lavigne use force against Plaintiff to place him in his cell. (Id. [stating “we were instructed [by a superior officer present at the scene] to place inmate Burns inside 10-B-5 cell.... ”].) Second, even if the memorandum had indicated that Defendant Quinn had directed Defendants Lavigne and Colby to “use force,” there is a critical distinction between an order to “use force” and an order to “use excessive force.” .

Plaintiffs theory of liability against Defendant Quinn, which is premised merely on the fact that Quinn was a supervisor, is revealed when Plaintiff argues that Quinn was personally involved in the constitutional violations alleged because he “was supervising defendants Trombly, Wood, Brown, Colby, Clark, Russell, McGraw, Lavigne and Crossman during the incident.” (Dkt. No. 60, Part 2, at 5-6 [Plf.’s Opp. Memo, of Law].) There is no record evidence that Defendant Quinn was present at the scene issuing orders to the referenced Defendants. Indeed, the undisputed record evidence is that Defendant Quinn was not present at the scene.43 The mere fact that, during the incident, Defendant Quinn was somewhere else in the prison serving in a position of authority over the referenced Defendants is precisely the sort of liability that is precluded under 42 U.S.C. § 1983, which requires something more than an officer’s position as a supervisor for him to be liable for a constitutional violation.

2. Defendant Clark

With regard to Defendant Clark, Plaintiff argues that Defendant Clark was personally involved not in the (alleged) use of excessive force against Plaintiff but in the (alleged) failure to provide him adequate medical care following the use of that force. (Dkt. No. 60, Part 2, at 6-7 [Plf.’s Opp. Memo, of Law].) In particular, Plaintiff alleges that Defendant Clarke was personally involved in the deliberate indifference to his serious medical needs by refusing to cause Plaintiff to be transported to the prison’s medical clinic immediately after the incident despite witnessing Plaintiffs (1) unconsciousness, (2) seizure, (3) facial swelling, and (4) request for medical treatment. (Dkt. No. 60, Part 2, at 6-7 [Plf.’s Opp. Memo, of Law].)

As evidence in support of this argument, Plaintiff points to three portions of the record: (1) a memorandum dated November 2, 2004, from Lt. R. Emery to Capt. Bezio regarding the incident, which states that Defendant Clark operated the video camera that videotaped the incident (Dkt. No. 60, Part 1, at 14 [Ex. “B(l)” to Plf.’s Deck in Opp.]); (2) his sworn assertion in his Verified Complaint that, at or about 11:10 a.m. on October 14, 2004, while Defendant Clark was taking photographs of Plaintiff for purposes of the Use of Force Report, Plaintiff pled with Clark to take him to the prison’s medical clinic (see Dkt. No. 1, ¶ 6[31]); and (3) a “Film Roll Card” dated October 14, 2004, which shows that Defendant Clark took Plaintiffs photograph “while he lay on the cell floor ... *203after [sustaining] a serious injury” (Dkt. No. 60, Part 1, at 19-20 [Exs. “C(l)” and “C(2)” to Plf.’s Decl. in Opp.]; see also Dkt. No. 58, Part 5, at 21-22 [Exs. A-19 and A-20 to Moran Decl.]). Again, this evidence does not constitute sufficient evidence to create a genuine issue of material fact with regard to Defendant Clark’s personal involvement in the alleged deliberate indifference to Plaintiffs serious medical needs.

The fact that Defendant Clark videotaped the incident in no way constitutes evidence that he was deliberately indifferent to any serious medical needs during the incident, which occurred between 10:15 a.m. and 11:00 a.m., according to Plaintiffs allegations. (Dkt. No. 1, ¶¶6[4]6[30] [Plf.’s Compl.].) Plaintiff does not allege that he asked Defendant Clark for medical care during the occurrence of the incident. (Id.) Furthermore, even if he had asked for such medical care, the evidence shows he was provided medical care, when he was brought to the prison’s medical clinic, where he was examined by a physician. (Dkt. No. 1, ¶¶ 6[18]-6[20] [Plf.’s Compl.].)

Plaintiff first asked Defendant Clark for medical care after the incident was over, specifically, at or around 11:10 a.m. (Dkt. No. 1, ¶ 6[31] [Plf.’s Compl.].) The undisputed record evidence is that (1) Plaintiff did not explain to Defendant Clark why he needed to go to the medical clinic, (2) Defendant Clark in no way indicated to Plaintiff that he had heard Plaintiffs request, and (3) at the time that Plaintiff made his request, Plaintiff was on the cell floor and Defendant Clark was behind the cell door’s closed window.44

In response to Defendants’ argument that no record evidence exists establishing that Defendant Clark heard Plaintiffs request, Plaintiff essentially argues that Defendant Clark nonetheless should have known that Plaintiff needed to go to the medical clinic based on what Defendant Clark had seen happen to Plaintiff, specifically, Plaintiffs (1) loss of consciousness, (2) seizure, and (3) facial swelling.

As for the loss of consciousness and/or seizure that Plaintiff allegedly experienced before 11:10 a.m. — i.e., at some point between 10:15 a.m. and 11:00 a.m. — the undisputed record evidence is that Defendant was examined by a physician (Dr. Wiesman) rather promptly after that loss of consciousness and/or seizure, at which time no injuries were noted in his medical records. (See Dkt. No. 58, Part 5, at 5, 9-17 [Exs. A-2 through A-3, and A-7 through A-15, to Moran Decl.]; Dkt. No. 1, ¶¶ 6[18]-6[20] [Plf.’s Compl.].)

As for the loss of consciousness and/or facial swelling that Plaintiff allegedly experienced at 11:10 a.m., no record evidence exists that Defendant Clark witnessed any loss of consciousness or facial swelling while standing outside Plaintiffs cell door at 11:10 a.m. For example, the photograph provided by Plaintiff (which was taken by Defendant Clark at 11:10 a.m.) indicates *204absolutely nothing of these things.45 Even if the photograph indicated facial swelling, no evidence (or allegation) exists that Defendant Clark is a medical care professional trained or able to identify a prisoner’s need for medical care based on seeing facial swelling through a cell door window. As for Plaintiffs alleged unconsciousness at 11:10 a.m. (when Defendant Clark was standing outside Plaintiffs cell door), Plaintiffs deposition testimony indicates that he was conscious (e.g., capable of sight, hearing, and speech) when Defendant Clark knocked on his cell door and then took a photograph of Plaintiff at 11:10 a.m.46

Finally, and more importantly, the undisputed record evidence indicates that, in fact, Plaintiffs cell'was visited by Defendant Waterson (a registered nurse) at 11:10 a.m. on October 14, 2004. (Dkt. No. (Dkt. No. 58), Part 5, at 7-8 [Exs. A-5 and A-6 to Moran Deck, attaching Addendum to Use of Force Report, reporting on physical examination conducted by G. Water-son, RN, on 10/14/04, at 11:10 a.m.].) It is inconceivable to me how a rational fact-finder could possibly hold Defendant Clark (a non-medical professional) liable for not causing Plaintiff to be brought to the prison’s medical clinic at 11:10 a.m. on October 14, 2004, when, at that very time, Plaintiff was being examined by a medical professional. The Eighth Amendment simply does not impose a duty on a correctional officer to second-guess (and, indeed, ignore) the medical judgment of a prison medical care professional, under such circumstances (if ever).

3. Defendants Uhler and Robert Woods

With regard to Defendants Uhler and Robert Woods, Plaintiffs theory of personal involvement by these two Defendants is based “entirely upon the October 18, 2004, complaint sent to defendant Supt. Woods, [which] was investigated and responded to by defendant Uhler.” (Dkt. No. 60, Part 2, at 8 [Plf.’s Opp. Memo, of Law].) That “complaint,” a handwritten letter filling only half a page, is attached as Exhibit A to Plaintiffs Declaration in Opposition to Defendants’ motion. (Dkt. No. 60, Part 1, at 10 [Ex. A to Plf.’s Deck in Opp.].) The written response sent to Plaintiff by Defendant Uhler is attached at Exhibit “A(l)” to Plaintiffs Declaration in Opposition to Defendants’ motion. (Dkt. No. 60, Part 1, at 11 [Ex. A-l to Plf.’s Deck in Opp.].) Simply stated, these two documents do not constitute sufficient evidence to create a genuine issue of material fact as to whether these two Defendants were personally involved in the constitutional violations alleged.

Generally, given the facts of this case and the legal arguments advanced by Plaintiff, Plaintiff must adduce evidence in support of one or both of two facts-notice of a constitutional violation and/or a reckless disregard of a constitutional violation — in order to show the personal involvement of these two supervisory officials, under the legal standard recited above. He has failed to adduce such evidence.

Plaintiffs letter was too brief and conclusory to place the two Defendants on notice that any constitutional violation had actually occurred. Moreover, their response was adequate and in no way demonstrative of any recklessness on their part. Defendant Woods (a high-ranking official at Upstate C.F.) had a right to *205refer Plaintiffs complaint to his subordinate officer, Defendant Uhler, for investigation and report, and to rely on that investigation and report. See Shabazz v. Lee, 03-CV-1520, 2007 WL 119429, at *7, n. 4 (N.D.N.Y. Jan. 10, 2007) (Homer, M.J.) (a superintendent’s adoption of a recommendation by an investigating officer cannot by itself demonstrate that he failed to remedy misconduct) [citations omitted]. Similarly, Defendant Uhler (also a high-ranking official at Upstate C.F.) had a right to refer Plaintiffs complaint to his subordinate officer (Sergeant Sawyer), for investigation and report.

Moreover, Defendant Uhler’s written response was prompt and adequate. Specifically, that written response indicated as follows: (1) the day after Plaintiff sent his letter of complaint to Defendant Woods, Sergeant Sawyer initiated his investigation of Plaintiffs Complaint; (2) during that investigation, Sergeant Sawyer interviewed Plaintiff; (3) during the investigation, Sergeant Sawyer reviewed the available documentation concerning the incident, which indicated that Plaintiff had been examined by medical staff on the date of the incident; (4) Sergeant Sawyer informed Plaintiff to employ sick-call procedures for any further medical issues; (5) Defendant Uhler concluded that, based on Sergeant Sawyer’s report, and the available documentation concerning the incident, there was no mistreatment of Plaintiff by staff members; and (6) Defendant Uhler communicated this conclusion, and his rationale for the conclusion, in writing to Plaintiff three days after Plaintiff sent his letter of complaint to Defendants Woods. (Dkt. No. 60, Part 1, at 10-11 [Exs. A and A-l to Plf.’s Decl. in Opp.].)

Despite arguing that his theory of personal involvement by these two Defendants is based “entirely” on the above two documents, Plaintiff goes on to argue that Defendant Woods was personally involved in the constitutional violations alleged also because he “was aware of Plaintiffs grievances concerning the use of excessive force and denial of medical treatment.” (Dkt. No. 60, Part 2, at 9 [Plf.’s Opp. Memo, of Law].) The sole record documentation concerning these grievances (Grievance Nos. “UST21438-04” and “UST-21508-04”) are attached at Exhibit B to Plaintiffs Declaration in Opposition to Defendants’ motion. (Dkt. No. 60, Part 1, at 13-16 [Exs. B through B-3 to Plf.’s Decl. in Opp.].)

Again, these documents, which number four pages in length, do not constitute sufficient evidence to create a genuine issue of material fact as to whether Defendant Woods was personally involved in the constitutional violations alleged. The first grievance (Grievance No. “UST21438-04”) was not even filed until October 21, 2004-at least three days after Defendant Woods had referred Plaintiffs letter of complaint to his subordinate, Defendant Uhler, for investigation and report, and the very same day that Defendant Uhler issued his written response to Plaintiffs letter of complaint to Defendant Woods. (Dkt. No. 60, Part 1, at 15 [Ex. B-2 to Plf.’s Decl. in Opp.].) Furthermore, the second grievance (Grievance No. “UST-21508-04”) was not filed until October 28, 2004-a week after Defendant Wood’s subordinate, Defendant Uhler, had issued his written response to Plaintiffs letter of complaint to Defendant Woods. (Dkt. No. 60, Part 1, at 14 [Ex. B-3 to Plf.’s Decl. in Opp.].) Thus, it would be implausible, if not wholly irrational, to conclude that the filing of Plaintiffs grievances (on October 21, 2004, and October 28, 2004) somehow increased Defendant Woods’ duty as to how to respond to Plaintiffs letter complaint of October 18, 2004.

Furthermore, to the extent that Plaintiff is arguing that Defendant Woods was per*206sonally involved in the constitutional violations alleged by affirming the Inmate Grievance Program’s denials of Plaintiffs two grievances, I reject that argument as well. No record evidence exists that Defendant Woods failed to decide Plaintiffs grievance appeals in a timely and procedurally proper manner. (Dkt. No. 60, Part 1, at 15-16 [Exs. B-2 and B-3 to Plf.’s Decl. in Opp.].) Furthermore, no record evidence exists that Defendant Woods’ administrative decisions were subsequently reversed on an appeal to DOCS’ Central Office Review Committee. Simply stated, the two grievance appeals presented to Defendants Woods were not sufficient to place him on notice that any constitutional violation had actually occurred. Moreover, his response to those grievance appeals was, under the circumstances, entirely adequate and in no way demonstrative of any recklessness on his part.

For all of these reasons, I recommend that Plaintiffs Eighth Amendment claims against Defendants Quinn, Clark, Uhler and Robert Woods in their individual capacities be dismissed with prejudice because Plaintiff has failed to adduce sufficient record evidence to establish the requisite personal involvement of those four Defendants in the constitutional violations alleged.

ACCORDINGLY, it is

RECOMMENDED that Defendants’ motion, for partial summary judgment (Dkt. No. 58) be GRANTED, and that, as a result, (1) Plaintiffs claims against the four “John Doe” Defendants be dismissed without prejudice, (2) Plaintiffs official-capacity claims, and his Fourteenth Amendment claims, against the remaining Defendants be dismissed with prejudice, and (3) Plaintiffs Eighth Amendment claims against Defendants Quinn, Clark, Uhler and Robert Woods in their individual capacities be dismissed with prejudice.47

Pursuant to 28 U.S.C. § 636(b)(1), Fed. R.Civ.P. 72(b), Local Rule 72.1(c), and Fed. R.Civ.P. 6(a)(2), the parties have TEN (10) WORKING DAYS, PLUS THREE (3) CALENDAR DAYS (see Fed.R.Civ.P. 6[d]), from the date of this Reporb-Recommendation, within which to file objections to this Reporb-Recommendation. Such objections, if any, shall be filed with the Clerk of the Court. FAILURE TO FILE TIMELY OBJECTIONS TO THIS REPORT-RECOMMENDATION WILL PRECLUDE LATER APPELLATE REVIEW OF ANY ORDER OF JUDGMENT THAT WILL BE ENTERED. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir.1993) (citing Small v. Sec’y of H.H.S., 892 F.2d 15 [2d Cir.1989]).

Burns v. Trombly
624 F. Supp. 2d 185

Case Details

Name
Burns v. Trombly
Decision Date
May 7, 2008
Citations

624 F. Supp. 2d 185

Jurisdiction
United States

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