CHARLES J. SIRAGUSA, District Judge.
This is an action under 42 U.S.C. § 1983 brought by Tracey Douglas ("Plaintiff"), a prison inmate in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS"). Plaintiff alleges that Defendants failed to protect him from attacks by other inmates. Now before the Court is Defendants' motion for judgment on the pleadings. (Docket No. [#15]). The application is granted in part and denied in part.
The reader is presumed to be familiar with the Court's prior Decisions and Orders in this action, which discuss the facts of the case in detail. It is sufficient to note that at all relevant times, Plaintiff was incarcerated by DOCCS, and was serving a sentence for robbery. The person whom Plaintiff was convicted of robbing was allegedly a high-ranking member of the Bloods gang, which has many members incarcerated in DOCCS facilities throughout New York. Plaintiff maintains that such gang members targeted him for violent retaliation. In particular, Plaintiff contends that the Bloods slashed his face on five different occasions during 2001, 2002, 2006 and 2008. Initially in this action, Plaintiff was seeking to recover damages for alleged failures by DOCCS employees to protect him from those attacks, but by Decision and Order dated July 14, 2016, the Court granted summary judgment for Defendants as to those claims.
However, Plaintiff also alleges that Defendants failed to adequately protect him after he was transferred to Elmira Correctional Facility in 2013, and the Court denied Defendant's application for summary judgment as to that claim.
Regarding this sole surviving claim, Plaintiff maintains that at the time of such transfer, Defendants were aware of the aforementioned past attacks on him, and were aware that he was in continuing imminent danger of being assaulted again by Bloods gang members, if any, at Elmira. The Complaint [#1] further states in pertinent part:
The Complaint also indicates that even after Plaintiff was placed in protective custody at Elmira, he was still required to pass through the general population areas of the facility twice per day, in order to go to the infirmary. On this point, the Complaint states, in pertinent part:
Despite Plaintiff's concerns, he was never physically attacked while in protective custody at Elmira.
However, the Complaint indicates that Plaintiff suffered "mental and emotional injuries" as a result of worrying about the potential threat of being attacked by Bloods gang members at Elmira during such trips to and from the infirmary. In particular, the Complaint indicates that Plaintiff's days were "spent in fear" of being attacked; that he "suffer[ed] from a constant and continuous nervous stomach"; that he "sometimes [went] days without sleep"; and that he was so afraid when being escorted through the general population areas that he could hear his own heart "in [his] ears."
The Complaint alleges that Plaintiff's fear of being assaulted is sufficient to satisfy the requirements of the 8th Amendment. More specifically, the Complaint contends that Plaintiff's "consummate fear of being assault[ed] again" and his inability to sleep are sufficiently serious injuries to support an 8th Amendment claim.
On July 29, 2016, Defendants filed the subject motion [#15] for judgment on the pleadings, pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. Defendants maintain that an 8th Amendment failure-to-protect claim is not actionable, as a matter of law, where the inmate was not actually assaulted, but only experienced fear of being assaulted. See, Defs. Memo of Law [#15-1] at p. 4, 6 ("Fear of being assaulted is not a sufficiently serious injury. . . . [P]laintiff's lack of physical injury is fatal to his Eighth Amendment claim."). On this point, Defendants cite, inter alia, Fofana v. Suffolk County Corr. Fac., No. 13-CV-00443 (SJF)(ETB), 2013 WL 2285753 (E.D.N.Y. May 20, 2013). In the event that the Court declines to dismiss the action altogether, Defendants alternatively contend that the Court should dismiss Plaintiff's claims for compensatory and punitive damages, pursuant to 42 U.S.C. § 1997e(e), since he did not sustain a physical injury.
Plaintiff responds that although he did not sustain any physical injury in connection with his 2013 incarceration at Elmira, he has nevertheless adequately stated an actionable 8th Amendment claim. In particular, Plaintiff maintains that an 8th Amendment violation may occur where an inmate faces a "substantial risk of serious harm."
Preliminarily, the Court notes that because Plaintiff is proceeding pro se, it construes his submissions liberally, to raise the strongest arguments that they suggest.
The Rule 12(b)(6) standard is applicable to Defendants' motion for judgment on the pleadings pursuant to FRCP 12(c). Burnette v. Carothers, 192 F.3d 52, 56 (2d Cir. 1999) ("In deciding a Rule 12(c) motion, we apply the same standard as that applicable to a motion under Rule 12(b)(6)."), cert. den. 531 U.S. 1052, 121 S.Ct. 657 (2000). That standard is clear:
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65, 167 L.Ed.2d 929 (2007); see also, ATSI Communications, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) ("To survive dismissal, the plaintiff must provide the grounds upon which his claim rests through factual allegations sufficient `to raise a right to relief above the speculative level.'") (quoting Bell Atl. Corp. v. Twombly) (footnote omitted). When applying this standard,
Heckman v. Town of Hempstead, 568 F. App'x 41, 43 (2d Cir. 2014).
The general legal principles applicable to an 8th Amendment failure-to-protect claim are well settled:
Hayes v. New York City Dep't of Corr., 84 F.3d 614, 620 (2d Cir. 1996) (emphasis added, citations omitted); see also, Avincola v. Maldonado, No. 04-3529-PR, 2005 WL 3116760, at *1 (2d Cir. Nov. 22, 2005) ("A prison official's `deliberate indifference' to a substantial risk of serious harm to an inmate violates the Eighth Amendment" and will give rise to a failure-to-protect claim.") (citation omitted).
Defendants contend that the Complaint fails to satisfy the first prong above, because in the absence of an actual assault, an inmate's "fear of being assaulted" is insufficient to establish a substantial risk of serious harm. However, several courts have held that an inmate may satisfy the "substantial risk of serious harm" prong even if he did not suffer injury. For example, in Heisler v. Kralik, 981 F.Supp. 830, 836 (S.D.N.Y. 1997), the court rejected an argument similar to Defendants', stating:
Id. (some citations omitted), aff'd sub nom. Heisler v. Rockland Cty., 164 F.3d 618 (2d Cir. 1998); accord, Feliciano v. Goord, 1998 WL 436358 at *4-5 (S.D.N.Y. Jul. 27, 1998); see also, Alsaifullah v. Furco, 2013 WL 3972514 at *12 (S.D.N.Y. Aug. 2, 2013) ("The objective prong can be met even where the inmate does not actually suffer serious physical injury.") (citation omitted); JCG v. Ercole, No. 11 CIV. 6844 CM JLC, 2014 WL 1630815, at *26 (S.D.N.Y. Apr. 24, 2014) ("[A]n inmate need not actually suffer serious physical injury to face a substantial risk of serious harm.") (citation omitted), report and recommendation adopted, No. 11 CIV. 6844 CM JLC, 2014 WL 2769120 (S.D.N.Y. June 18, 2014).
Defendants correctly point out that there are also court decisions holding that mere "fear of being assaulted is not a sufficiently serious injury" for purposes of the 8th Amendment. For example, in Smith v. Byrne, 2015 WL 347394 (D.Vt. Jan. 24, 2015), the court stated:
Id. at *6 (emphasis added; internal quotation marks omitted; collecting cases holding that mere fear of assault is not a sufficiently serious injury under the 8th Amendment). However, in that case, the court noted that the inmate-plaintiff had completely failed to support his claim with factual averments indicating that he was actually in danger:
Id. at *6 (citations to record omitted). Moreover, in that same discussion, the court favorably cited another decision, Green v. City of N.Y. Dep't of Corr., No. 06 Civ. 4978(LTS)(KNF), 2008 WL 2485402, at *6 (S.D.N.Y. June 19, 2008), for the proposition that "a prisoner's allegations of death threats, absent a claim that physical harm actually existed or was imminent, was [not] sufficient to constitute a substantial risk of serious harm under the Eighth Amendment." Id. at *6. Such language implies that an inmate may plead a failure-to-protect claim, even though he has not assaulted, if he plausibly alleges that a risk of physical harm actually existed and was imminent.
The case upon which Defendants principally rely, Fofana v. Suffolk County Corr. Fac., cited earlier, similarly involved an inmate who, the court in that case found, failed to plausibly allege that he was actually in danger. On that point, the court in Fofana stated:
Id. at *5 (citations and internal quotation marks omitted). Such language implies that the pleading would have adequately stated a failure-to-protect claim if it had alleged that the plaintiff had actually been assaulted and/or threatened with harm. Additionally, the cases string-cited within the Fofana decision all involved similar situations where inmates merely alleged generalized fears of being assaulted, without showing that they had actually been assaulted or threatened with imminent harm. Accordingly, these cases stand for the proposition that a pleading which merely asserts an unsubstantiated fear of harm fails to plead a "substantial risk of serious harm."
The instant case is clearly different, as the Plaintiff's Complaint [#1] alleges both that there is an active "contract" on his life by the Bloods gang, and that he has already been slashed by Bloods gang members on five occasions.
Defendants alternatively maintain that even if Plaintiff has adequately pleaded a failure-to-protect claim, his damages are limited by 42 U.S.C. § 1997e(e). That statute states, in pertinent part: "No Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury." The Second Circuit interprets this provision as both pertaining "to all federal civil actions including claims alleging constitutional violations," and as
Thompson v. Carter, 284 F.3d 411, 416 (2d Cir. 2002). Accordingly, in the absence of physical injury, § 1997e(e) prevents a prisoner-plaintiff from recovering compensatory damages, but not nominal damages, punitive damages, injunctive relief or declaratory relief. Id.
The subject Complaint [#1] demands compensatory damages and punitive damages.
The sole remaining issue is whether § 1997e(e) requires the dismissal of Plaintiff's claim for compensatory damages.
Court decisions addressing this point are quite sparse. Indeed, the Court has managed to find only one case directly on point, and it rejects Plaintiff's theory. See, Strain v. Thaler, No. CIV.A. H-13-0782, 2013 WL 6709036, at *2 (S.D. Tex. Dec. 17, 2013) ("Plaintiff's references to an assault in 2003 and to a second assault in 2009 or 2010 appear to be for historical background purposes only. Any claim for damages based on these prior assaults would be barred by the two-year statute of limitations at this point. Nor can the assaults constitute the required physical injury for purposes of section 1997e(e) in the instant lawsuit, as they do not constitute a physical injury incurred as a result of his current housing.") (emphasis added). The Court agrees with the approach taken in Strain v. Thaler, and finds that Plaintiff's claim for compensatory damages must be dismissed, pursuant to § 1997e(e), since he admittedly suffered no physical injury in connection with the subject failure-to-protect claim involving his placement at Elmira in 2013. Accordingly, that aspect of Defendants' motion is granted, although Plaintiff may still pursue nominal damages and/or punitive damages.
Defendants' application for judgment on the pleadings [#15] is granted in part and denied in part. Defendants' request to dismiss Plaintiff's 8th Amendment failure-to-protect claim and his punitive-damages claim is denied, but their request to dismiss his demand for compensatory damages is granted pursuant to 42 U.S.C. § 1997e(e).
So Ordered.
