The Honorable J. Garvan Murtha, Senior Judge of the United States District Court for the District of *

Vermont, sitting by designation.

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09-2897-pr

Cole v. Fischer

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 party not represented by counsel.

At a stated term of the United States Court of Appeals for the Second Circuit, held at

the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New

York, on the twenty-seventh day of May, two thousand and ten.

PRESENT:

JOSÉ A. CABRANES,

ROBERT A. KATZMANN,

Circuit Judges,

J. GARVAN MURTHA,

District Judge.*

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RONNIE COLE,

Plaintiff-Appellant,

v. No. 09-2897-pr

Commissioner BRIAN FISCHER, ROBERT ERCOLE, G.H.C.F.,

KEVIN LAPORTO, G.H.C.F., P. TROWBRIDGE, G.H.C.F.,

G. LEHOYSKI, G.H.C.F., Director DONALD SELSKY, Special

Housing Inmate Disciplinary Program, NEW YORK STATE

DEPARTMENT OF CORRECTIONAL SERVICES, 

JOHN D. HALICKI, Inmate Disciplinary Program,

Defendants-Appellees.
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FOR PLAINTIFF-APPELLANT: Ronnie Cole, pro se, NY.

FOR DEFENDANTS-APPELLEES: Robert C. Wiesz, Assistant Solicitor General

(Andrew M. Cuomo, Attorney General,

Barbara D. Underwood, Solicitor General, on

the brief), State of New York, Office of the

Attorney General, New York, NY. 

Appeal from a judgment of the United States District Court for the Southern District of

New York (Barbara S. Jones, Judge).

UPON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED in part

(insofar as it dismissed (1) plaintiff’s claims that defendants filed false reports, (2) plaintiff’s claims

that defendants were deliberately indifferent to his serious medical needs, (3) plaintiff’s disability

discrimination claims, (4) plaintiff’s racial and religious discrimination claims against all defendants

except Lehoyski, and (5) plaintiff’s excessive force claims against all defendants except Lehoyski );

VACATED in part (insofar as it dismissed plaintiff’s claims against Lehoyski for (1) using excessive

force and (2) discriminating against plaintiff on the basis of race and religion); and the cause is

REMANDED for further proceedings consistent with this order.

Plaintiff-appellant Ronnie Cole (“plaintiff” or “Cole”), proceeding pro se, appeals from the

District Court’s order granting dismissal of his amended 42 U.S.C. § 1983 complaint, and an order

denying his request for leave to file a second amended complaint. We assume the parties’ familiarity

with the factual and procedural history of the case.

We review de novo a District Court’s dismissal for failure to state a claim, see Fed. R. Civ. P.

12(b)(6), assuming all well-pleaded, nonconclusory factual allegations in the complaint to be true, see

Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-50 (2009); Selevan v. N.Y. Thruway Auth., 584 F.3d 82, 88 (2d

Cir. 2009).

We review the denial of a motion for leave to amend the complaint for abuse of discretion.

Green v. Mattingly, 585 F.3d 97, 104 (2d Cir. 2009). Rule 15(a) of the Federal Rules of Civil Procedure

instructs that leave to amend should be “freely given.” Fed. R. Civ. P. 15(a). Moreover, “[a] pro se

complaint is to be read liberally” and “[c]ertainly the 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.” Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999) (quoting Branum
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v. Clark, 927 F.2d 698, 705 (2d Cir. 1991)).

Here, an independent review of the record and relevant case law reveals that the District

Court properly dismissed most of plaintiff’s claims and properly denied his request for leave to file a

second amended complaint. Except as noted below, we affirm the judgment of the District Court

for substantially the reasons stated in its thorough orders entered on May 29, 2009. See Cole v.

Fischer, No. 07 Cv. 11096, 2009 WL 1514699 (S.D.N.Y. May 29, 2009) (Cole I) (dismissing plaintiff’s

claims); Cole v. Fischer, No. 07 Cv. 11096, 2009 WL 1514691 (S.D.N.Y. May 29, 2009) (Cole II)

(denying plaintiff’s request for leave to amend). We conclude, however, that the District Court

erred in two respects.

First, the District Court erred when it concluded that Cole’s excessive force claim did not

rise to the level of an Eighth Amendment violation. “The Eighth Amendment prohibits the

infliction of cruel and unusual punishments including the unnecessary and wanton infliction of

pain.” Griffin v. Crippen, 193 F.3d 89, 91 (2d Cir. 1999) (citation and internal quotation marks

omitted). For excessive force claims, “the core judicial inquiry is . . . whether force was applied in a

good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” 

Hudson v. McMillian, 503 U.S. 1, 6-7 (1992). The malicious use of force to cause harm constitutes a

per se Eighth Amendment violation regardless of whether there is a significant injury. See Blyden v.

Mancusi, 186 F.3d 252, 263 (2d Cir. 1999) (citation omitted); see also Wright v. Goord, 554 F.3d 255, 270

(2d Cir. 2009). However, the prohibition against cruel and unusual punishment does not extend to

the de minimis use of force, provided that such force “is not of a sort repugnant to the conscience of

mankind.” See Baskerville v. Mulvaney, 411 F.3d 45, 48 (2d Cir. 2005) (internal quotation marks

omitted).

In his amended complaint, Cole alleged that he had refused to respond to the offer of

Correction Officer Lehoyski (“Lehoyski”) of a corrupt “deal”; that Lehoyski had then directed Cole

to follow him somewhere else; and that, as Cole attempted to pick up his clothing, Lehoyski had hit

him in the face and used racially and religiously derogatory language towards him. Although the

District Court correctly noted that Cole did not allege that he had suffered any injuries as a result of

the hitting, the District Court erred in finding that there was nothing to suggest that the force was

applied maliciously, or for any reason other than to maintain discipline and order in the facility. As

we have explained, “the absence of any significant injury . . . does not end the Eighth Amendment

inquiry, for our standards of decency are violated even in the absence of such injury if the

defendant’s use of force was malicious or sadistic.” Wright, 554 F.3d at 270. Assuming the facts

alleged in Cole’s amended complaint are true, as we are required to on a motion to dismiss, it is

possible to infer that Lehoyski’s use of force was malicious in light of Cole’s allegations that

Lehoyski simultaneously made racially and religiously derogatory remarks, and that the force was

used just after he had turned down an offer of a corrupt deal. Accordingly, we conclude that the
We affirm the judgment of the District Court insofar as it dismissed any claim of discrimination on the basis 1

of disability. Unlike the alleged comments about Cole’s race and religion, the alleged comment about Cole wearing an

adult diaper was not accompanied by any physical abuse and therefore did not rise to the level of a constitutional

violation. See Purcell, 790 F.2d at 265.

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District Court erred in dismissing plaintiff’s Eighth Amendment claim for excessive force against

Lehoyski.

We also conclude that the District Court erred in dismissing plaintiff’s Fourteenth

Amendment claims against Lehoyski for discrimination on the basis of race and religion. The

District Court explained that “[t]he only allegations in the Amended Complaint that relate to this

claim are that . . . Lehoyski used a racial epithet, made a derogatory comment about Muslims, and

mocked Cole for wearing an adult diaper” and that such “[v]erbal harassment and name calling,

absent physical injury, are not constitutional violations cognizable under Section 1983.” Cole I, 2009

WL 1514699, at *5. Although verbal harassment, standing alone, does not amount to a

constitutional deprivation, see Purcell v. Coughlin, 790 F.2d 263, 265 (2d Cir. 1986) (holding that namecalling without “any appreciable injury” did not violate inmate’s constitutional rights), plaintiff’s

amended complaint alleged that Lehoyski became physically abusive and hit plaintiff in the face

while using racial epithets and referring to plaintiff’s religion. And although plaintiff does not

explicitly allege that he suffered any injury, we may liberally construe allegations about being struck

in the face as sufficiently stating an “appreciable injury.” See id.; cf. Sealed Plaintiff v. Sealed Defendant,

537 F.3d 185, 191 (2d Cir. 2008) (explaining that “when a plaintiff proceeds pro se, a court is obliged

to construe his pleadings liberally” and that “[t]his is particularly so when the pro se plaintiff alleges

that [his] civil rights have been violated” (citations and alterations omitted)). When the verbal

harassment and simultaneous physical abuse alleged in the amended complaint are considered

together, we have little trouble concluding that plaintiff’s allegations were sufficient to state a § 1983

claim for discrimination on the basis of race and religion.1

Accordingly, we vacate the District Court’s judgment only insofar as it dismissed plaintiff’s

claims against Lehoyski for (1) using excessive force in violation of plaintiff’s Eighth Amendment

rights and (2) discriminating against plaintiff on the basis of race and religion in violation of

plaintiff’s Fourteenth Amendment rights.

CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of the District Court insofar as it

dismissed (1) plaintiff’s claims that defendants filed false reports, (2) plaintiff’s claims that

defendants were deliberately indifferent to his serious medical needs, (3) plaintiff’s disability

discrimination claims, (4) plaintiff’s racial and religious discrimination claims against all defendants
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except Lehoyski, and (5) plaintiff’s excessive force claims against all defendants except Lehoyski.

We VACATE the judgment of the District Court only insofar as it dismissed plaintiff’s claims

against Lehoyski for (1) using excessive force in violation of plaintiff’s Eighth Amendment rights

and (2) discriminating against plaintiff on the basis of race and religion in violation of plaintiff’s

Fourteenth Amendment rights.

We REMAND the cause for further proceedings consistent with this order.

FOR THE COURT,

Catherine O’Hagan Wolfe, Clerk of Court