Locicero v. O'Connell

• Decision Date: 06 March 2006
• Docket Number: No. 04 Civ. 07708(VM).,04 Civ. 07708(VM).
• Citation: 419 F.Supp.2d 521
• Parties: David Michael LOCICERO, Plaintiff, v. James O'CONNELL, Superintendent & Mr. Featherston, Correction Officer, Downstate Correctional Facility, New York State Department of Correctional Services, Fishkill, N.Y., Defendants.
• Court: U.S. District Court — Southern District of New York

419 F.Supp.2d 521

David Michael LOCICERO, Plaintiff, v. James O'CONNELL, Superintendent & Mr. Featherston, Correction Officer, Downstate Correctional Facility, New York State Department of Correctional Services, Fishkill, N.Y., Defendants.

No. 04 Civ. 07708(VM).

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

March 6, 2006.

David Michael Locicero, Malone, NY, pro se.

DECISION AND ORDER

MARRERO, District Judge.

Pro se Plaintiff David Michael Locicero ("Locicero") brought this action pursuant to 42 U.S.C. § 1983 against the New York State Department of Correctional Services ("DOCS"), Downstate Correctional Facility ("Downstate"), Downstate Superintendent James O'Connell ("O'Connell"), and Downstate Correction Officer Featherston ("Featherston") (collectively, the "Defendants"), alleging deprivations of his Eighth Amendment right to be free of cruel and unusual punishment.¹ Locicero's claim emanates from an alleged unprovoked assault at the hands of Featherston.

O'Connell moves to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) ("Rule 12(b)(1)") and 12(b)(6) ("Rule 12(b)(6)") on the grounds that Locicero has failed to allege: (1) O'Connell's personal involvement in the purported constitutional deprivations; and (2) that O'Connell acted with a sufficiently culpable state of mind to constitute deliberate indifference.² For the reasons set forth below, the motion is DENIED.

I. FACTUAL BACKGROUND³

A. FACTS

In ruling upon a motion to dismiss, the Court must accept the factual allegations set forth in the complaint as true. See Jaghory v. New York State Dep't of Edw., 131 F.3d 326, 329 (2d Cir.1997). Accordingly, the factual recitation that follows is derived exclusively from Locicero's version of events.

Locicero is an inmate in the custody of DOCS. At the time of the alleged incident, he was incarcerated at Downstate, where O'Connell was the superintendent and Featherston was a correction officer.

On August 6, 2001, Locicero was issued a disciplinary ticket by an unnamed correction officer while in the Downstate gym. When Locicero could not recall the name of a witness he wished to call at the subsequent hearing on the citation, the unnamed officer instructed Locicero to inform the area officer in the event he recalled the identity of the witness.

On August 9, 2001, after catching sight of the witness in the mess hall, Locicero brought the matter to the attention of another unnamed officer, who directed him to talk to his block officer, Featherston. Upon Featherston's arrival shortly thereafter, Locicero attempted to explain the situation. Featherston, according to Locicero, rebuffed him in an abrasive fashion. Locicero admits that he expressed his displeasure by making a grunting sound while walking away.

After Featherston left the mess hall, he pulled Locicero out of line and into an area shielded from the sight of other inmates. Featherston instructed him to face the wall and place his hands high on it. When Locicero again tried to explain the situation, Featherston threatened him. As he was returning to his cell, Locicero again manifested his displeasure, this time by clenching his fists.

Featherston then summoned Locicero from his cell, directed him to the TV room, and there began to berate Locicero for clenching his fists earlier and, without any provocation on Locicero's part, struck him in the sternum, knocking the wind out of him. A brief verbal exchange ensued, after which Featherston punched Locicero in the face, sending him to the ground. Featherston then taunted and repeatedly kicked Locicero. Following this assault, Locicero complied with Featherston's order to return to his cell. When Officer Bell relieved Featherston, Locicero was permitted to go to the hospital.

Locicero's factual allegations relating to O'Connell's personal involvement and deliberate indifference are presented in Part II.B below in addressing the issues raised by O'Connell's motion to dismiss.

B. PROCEDURAL HISTORY

Attorneys from the Office of the New York State Attorney General, who represent O'Connell, contend that Featherston has not received notice of the claim against him, while Locicero contends that Featherston was served on March 8, 2005 and provides the United States Marshals' Process Receipt and Return, also known as the USM-285 form, as evidence. In order to ensure that Featherston is afforded notice of the claim against him and an opportunity to be heard, the Court ordered the United States Marshals Service to request a waiver of service from Featherston and, failing that, to serve him personally. Locicero v. O'Connell, No. 04 Civ. 07708, Order dated January 26, 2006 (S.D.N.Y. 2006) ("Order"). As of the date of this Decision and Order, there is no indication that service has been completed pursuant to the Order.

II. DISCUSSION

A. STANDARD OF REVIEW

Because Locicero is proceeding in this matter pro se, he is entitled to "be afforded every reasonable opportunity to demonstrate that he has a valid claim." Dluhos v. Floating & Abandoned Vessel, 162 F.3d 63, 69 (2d Cir.1998) (quoting Satchell v. Dilworth, 745 F.2d 781, 785 (2d Cir.1984)) (internal quotation marks omitted).

1. Subject Matter Jurisdiction

Challenges to subject matter jurisdiction pursuant to Rule 12(b)(1) may contest "either the facial sufficiency of the pleadings in the complaint or the existence of subject matter jurisdiction in fact." Dow Jones & Co. v. Harrods, Ltd., 237 F.Supp.2d 394, 404 (S.D.N.Y.2002), aff'd, 346 F.3d 357 (2d Cir.2003). As in a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), "[i]n a facial challenge, the [C]ourt accepts as true the uncontroverted factual allegations in the complaint." Id.; see also Shipping Fin. Servs. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir.1998).

The preliminary showing that must be made by the plaintiff is not meant to be overly burdensome, "allowing for subject matter jurisdiction so long as the federal claim is colorable.'" Cromer Fin. Ltd. v. Berger, 137 F.Supp.2d 452, 467 (S.D.N.Y. 2001) (quoting Savoie v. Merchants Bank, 84 F.3d 52, 57 (2d Cir.1996)). "In a close case, the factual basis for a court's subject matter jurisdiction may remain an issue through trial, and, if and when doubts are resolved against jurisdiction, warrant dismissal at that time." Europe & Overseas Commodity Traders, S.A. v. Banque Paribas London, 147 F.3d 118, 121 n. 1 (2d Cir.1998) (citation omitted).

2. Failure to State a Claim

Pursuant to the liberal pleading requirements of the Federal Rules of Civil Procedure, a plaintiff need only provide "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R.Civ.P. 8(a)(2). Accordingly, dismissal of a complaint for failure to state a claim pursuant to Rule 12(b)(6) is proper only where "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Harris v. City of New York, 186 F.3d 243, 247 (2d Cir.1999). In making this determination, a court must accept all factual assertions in the complaint as true and draw all reasonable inferences in favor of the plaintiff. See Jaghory, 131 F.3d at 329.

In deciding a motion to dismiss, a court may review documents integral to the complaint upon which the plaintiff relied in drafting the pleadings, as well as "any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference." Rothman v. Gregor, 220 F.3d 81, 88 (2d Cir. 2000) (citing Cosmas v. Hassett, 886 F.2d 8, 13 (2d Cir.1989)); see also Schnall v. Marine Midland Bank, 225 F.3d 263, 266 (2d Cir.2000). In the case of a motion to dismiss involving a claim by a pro se plaintiff, a court may look beyond the complaint to the plaintiff's opposition papers. See Burgess v. Goord, No. 98 Civ.2077, 1999 WL 33458, at *1 n. 1 (S.D.N.Y. Jan. 26, 1999).

Moreover, the Court must "read the [pro se plaintiff's] pleadings ... liberally and interpret them `to raise the strongest arguments that they suggest.'" McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.1994)); see also Soto v. Walker, 44 F.3d 169, 173 (2d Cir.1995). Nevertheless, the judicial solicitude accorded to pro se litigants cannot be used to cure a complaint that consists merely of "broad generalizations ... sweeping castigations, and unfounded conclusions, but not specific facts from which an actual deprivation of [constitutional] rights may be inferred." Webb v. Goord, 197 F.R.D. 98, 102 (S.D.N.Y.2000) (citing Barr v. Abrams, 810 F.2d 358, 363 (2d Cir.1987); Martin v. New York State Dep't of Mental Hygiene, 588 F.2d 371, 372 (2d Cir.1978)).

In sum, a pro se litigant must allege sufficient facts indicating a deprivation of constitutional rights. See Alfaro Motors, Inc. v. Ward, 814 F.2d 883, 887 (2d Cir. 1987). That being said, "assertions must truly be bare for dismissal to be appropriate." Burgess, 1999 WL 33458 at *2 (citing Gant v. Wallingford Bd. of Educ., 69 F.3d 669, 672 (2d Cir.1995)).

B. APPLICATION

As an initial matter, the Court rejects O'Connell's Rule 12(b)(1) motion to dismiss Locicero's complaint for lack of subject matter jurisdiction. Although O'Connell recites the applicable legal standard, he accords it no further attention. Since Locicero's Eighth Amendment claim clearly raises a federal question, the only issue to be addressed is whether the federal claim is sufficiently colorable. Locicero's claim cannot be characterized, as O'Connell suggests, as less than even "minimally plausible." (See Def. Mem. 4 (citing Town of West Hartford v. Operation Rescue, 915 F.2d 92, 92-99 (2d Cir.1990)).) As discussed below, Locicero's allegations that he was physically assaulted by a Downstate correction officer in the absence of any security—or safety-related justification, and that O'Connell was deliberately indifferent to the risk of this physical violence occurring,...