1 13-4626-cv Lewis v. Swicki

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PA RTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Co urthouse, 40 Foley Square, in the City of New York, on the 27 th day of October, two thousand fifteen.

PRESENT: R OBERT D. S ACK
, C HRISTOPHER F. D RONEY
, Circuit Judges

, T IMOTHY C. S TANCEU
,  Judge.

------------------ ------------------ ----------------- ------------- C HRISTOPHER J.M. L EWIS
, Plaintiff-Appellant,

v. No. 13-4626-cv

S WICKI
, L T
., B UTKIEWICUS
, C APT
., S TEWART
, C/O,

Defendants-Appellees

.

------------------ ------------------ ----------------- -------------

FOR APPELLANT: C HRISTOPHER G. C LARK (Matthew J. Matule, Catherine R. Jones, Gregory L. Shiferman, on the brief ), Boston, MA.

FOR APPELLEES: J AMES W. C ALEY
, Assistant Attorney General, for George Jepsen, Attorney General, Hartford, CT.

 Chief Judge Timothy C. Stanceu, of the United States Court of International Trade, sitting by designation.2 Appeal from a judgment of the United St ates District Court for the District of Connecticut (Thompson, J .).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED IN PART and VACATED IN PART

, and the case is REMANDED to the district court for fu rther proceedings consistent with this order.

Plaintiff-Appellant Christopher J.M. Lewis a ppeals from the district court’s judgment granting Defendants-Appellees’ motion to dismiss his complaint without gr anting Lewis leave to amend. 1 Lewis, who appeared pro se before the district court, asserts claims under 42 U.S.C. § 1983, alleging that Defendants – prison officials at the Northern Correctional Institution in Connecticut (“NCI”) – violated his constitutional rights by failing to prevent another inmate from assaulting him. Lewis was stabbed by th e other inmate, who had been handcuffed but slipped out of the handcuffs. We assume the pa rties’ familiarity with the underlying facts, to which we refer only as necessa ry to explain our decision.

Lewis argues that the district court erred in finding that he did not allege facts sufficient to demonstrate constitutional violations by (1) Defendants Lieutenant Swicki, an intelligence officer at NCI, and Captain Butkiewicus, also of NCI, who “knew of [an] incident that took place in July of 2010” between Lewis and the inmate who later attacked hi m and who knew that the incident was followed by a threat of “harm . . . to . . . Lewis in the near future,” 2 J.A. 12; and (2) Defendant Correction Officer Stewar t, who strip searched the other inmate just before the inmate assaulted Lewis with a conceal ed weapon in November 2010.

To demonstrate an Eighth Amendment violatio n, a prisoner must show both that (1) “he [was] incarcerated under conditions posing a substant ial risk of serious harm” and (2) “defendant prison officials possessed suffi cient culpable intent.” Hayes v. N.Y.C. Dep’t of Corr. , 84 F.3d 614, 620 (2d Cir. 1996) (citing Farmer v. Brennan

, 511 U.S. 825, 834 (1994)). A prison official acts with sufficient culpable intent “if he has knowl edge that an inmate faces a substantial risk of serious harm and he disregards that risk by fa iling to take reasonable measures to abate the harm.” Id. ; see also Farmer , 511 U.S. at 837-38 (noting that th e deliberate indi fference inquiry is subjective, requiring awareness of facts from which an inference could be drawn that “substantial risk of serious harm exist[ed]”). “[M]ere inadverten[ce] or negligen[ce] does not

1 The district court granted Defendants’ motion to dismiss on October 28, 2013. In its opinion, the district court stated that Lewis had not responded to the motion because hi s opposition papers were returned to him for failure to include a signed certificate of service, an d he had not refiled them for over a month. The docket, however, reflects that Lewis had previously moved for an extension of time to file his opposition, and the court had granted him until November 1, 2013 to do so. Lewis then filed an opposition dated October 29, 2013, that the court received on November 7, 2013. On November 12, 2013, Lewis moved for reconsideration of the dismissal of his complaint. The district court granted Lewis’s motion for reconsideration and considered the papers Lewis had filed in response to Defendants’ motion to dismiss, but dismissed his complaint on the same grounds stated in its earlier opinion.

2 Lieutenant Swicki notified Captain Bu tkiewicus of the prior incident “upon [Lewis’s] being place[d] in Captain [B]utkiewicus[’s] unit.” J.A. 46.3 violate the Eighth Amendment.” Farmer , 511 U.S. at 860 (second and third alterations in original) (internal quotation marks omitted).

The district court concluded th at the complaint’s “allegations fail to support a claim that defendants Swicki and Butkiewicus were deliberately indifferent to the plaintiff’s safety” for two reasons. J.A. 51-52. First, the alleged threat was that Lewis would be harmed in the “near future” but the assault did not occur until nearly six months later. Second, according to the district court, Lewis had not alleged that a ny defendant knew the source of the threat.

As to the first point, we are not persuaded th at the fact that Lewi s was not attacked for several months after the threat was made is sufficient to defeat his deliberate indifference claim at this stage. Cf. Farmer , 511 U.S. at 842 (“[A]n Eighth Amendment claimant need not show that a prison official acted or failed to act beli eving that harm actually would befall an inmate; it is enough that the official acted or failed to act despite his know ledge of a substantial risk of serious harm.”). As to the second point, Defenda nts concede that the dist rict court erred because in post-complaint filings Lewis alleged that Lieutenant Swicki and Captain Butkiewicus knew the identity of the inmate involved in the July 2010 in cident—Nicholas Trabakoulos.

We are mindful that “[o]n a 12(b)(6) moti on, the complaint should not be dismissed 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.” Morales v. N.Y. State Dep’t of Corr. , 842 F.2d 27, 30 (2d Cir. 1988) (quotation marks omitted). “Moreover, federal courts should not dismiss prisoners’ pro se, in forma pauperis complaints as frivolous unl ess statute or controlling precedent clearly forecloses the pleading, liberally construed.” Id. (quotation marks omitted). “[A] pro se complaint generally should not be dismissed without granting the plaintiff leave to amend at least once . . . .” Grullon v. City of New Haven , 720 F.3d 133, 140 (2d Cir. 2013).

Here, Lewis alleged that both Lieutenant Sw icki and Captain Butkiewicus (1) knew an incident had taken place between Lewis and Trabakoulos in July 2010, (2) knew that a threat against Lewis had been made following this inci dent, which put Lewis’s safety in jeopardy, and (3) “fail[ed] to take corrective actions to protec t [Lewis from the assault] that cause[d] [his] injuries.” J.A. 12. However, Lewis does no t suggest what these “co rrective actions” should have been, nor does he allege a ny facts to support his claim that Lieutenant Swicki and Captain Butkiewicus failed to take such actions or that their failure to do so caused his injuries. Compare with Morales , 842 F.2d at 29, 30 (holding that pro se prisoner sufficiently pled a deliberate indifference claim where he alleged that a fellow inmate, fr om whom he had been separated following an earlier fight, “‘was allowed to enter’ plaintiff’s housing unit . . . ‘without authorization to be in the dormitory’ . . . [and th en] attacked plaintiff”). Nevertheless, although Lewis’s allegations are sparse, we cannot “rule ou t any possibility. . . that an amended complaint would succeed in stating a claim.” Shomo v. City of N.Y. , 579 F.3d 176, 184 (2d Cir. 2009) (quoting Cruz v. Gomez , 202 F.3d 593, 597-98 (2d Cir. 2000)). Lewis may yet show that he will “be able to adduce facts from which a rational trie r of fact could conclude ” that the failure of Lieutenant Swicki or Captain Bu tkiewicus or both to take appropriate actions to protect him “amounted to deliberate indifference.” Morales , 842 F.2d at 30. The dist rict court should have at the very least afforded Lewis an opportunity to replead his claims against Lieutenant Swicki4 and Captain Butkiewicus. Accordingly, we vacat e the district court’s dismissal of Lewis’s claims against Lieutenant Swicki and Captain Bu tkiewicus and grant Lewis leave to replead his claims against those two defendants.

As to Correction Officer Stewart, however, we conclude that Lewis has failed to plead an Eighth Amendment violation and that allowing amendment would be futile, see Ellis v. Chao

, 336 F.3d 114, 127 (2d Cir. 2003), because the very fact s that Lewis himself has pled demonstrate that Correction Officer Stewart did not act with deliberate indifference. Lewis alleges only that Correction Officer Stewart “faile d in searching [Trabakoulos] [t o] find[ ] the weapon [Lewis] was attack[ed] with.” J.A. 12. However, “delib erate indifference describe s a state of mind more blameworthy than negligence,” and “Eighth Amendm ent liability requires more than ordinary lack of due care for the prisone r’s interests or safety.” Farmer , 511 U.S. at 835 (internal quotation marks omitted). Because the problems with Lewis’s claim against Correction Officer Stewart are substantive, “better pl eading will not cure [them].” Cuoco v. Moritsugu , 222 F.3d 99, 112 (2d Cir. 2000). Accordingly, we identify no error in the dismissal of Lewis’s claims against Correction Officer Stewart without affording Lewis leave to amend.

We have considered the parties’ remaining arguments and find them to be without merit. For the foregoing reasons, the judgment of the district Court is AFFIRMED IN PART and VACATED IN PART , and the case is REMANDED to the district court for further proceedings consistent with this order.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court