Aurel Smith v. David F. Martuscello, Jr. , 602 F. App'x 550 ( 2015 )

13-3004
Aurel Smith v. David F. Martuscello, Jr., et al.
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 Thurgood Marshall United States Courthouse, 40 Foley
Square, in the City of New York, on the 10th day of March, two thousand and
fifteen.
PRESENT: ROSEMARY S. POOLER,
BARRINGTON D. PARKER,
RICHARD C. WESLEY,
Circuit Judges.
____________________________________________
AUREL SMITH, on behalf of himself and all similarly
situated prisoners at Coxsackie Correctional Facility,
Plaintiff-Appellant,
-v.- No. 13-3004
DAVID P. MARTUSCELLO, JR., Superintendent,
Coxsackie Correctional Facility, BRIAN FISCHER,
Commissioner, Department of Correctional Services,
LUCIEN J. LECLAIRE, Deputy Commissioner for
Facility Operations, KAREN BELLAMY, Director,
Inmate Grievance Committee,
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Defendants-Appellees.
____________________________________________
For Plaintiff-Appellant: DAVID BOND, Burlington, VT.
For Defendants-Appellees: ANDREW B. AYERS, Assistant Solicitor
General (Barbara D. Underwood, Solicitor
General; Andrea Oser, Deputy Solicitor
General, on the brief), for Eric T.
Schneiderman, Attorney General of the
State of New York.
Appeal from the United States District Court for the Northern District of
New York (Mordue, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED AND DECREED that the judgment is AFFIRMED.
Aurel Smith, an inmate in the custody of the New York Department of
Corrections and Community Supervision (‚DOCCS‛), brought a 42 U.S.C. § 1983
action seeking declaratory and injunctive relief against three senior officials in
DOCCS‘s central office in Albany (the ‚Supervisory Defendants‛), as well as
against Daniel Martuscello, the Superintendent of the Coxsackie Correctional
Facility, where Smith was incarcerated from January 2009 through July 2010.
Smith filed his complaint on behalf of himself and a putative class of inmates
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‚who either currently reside or did reside (via their incarceration) at Coxsackie
Correctional Facility.‛ Am. Compl. ¶ 4. Smith alleges that he witnessed and
personally experienced corrections officers at Coxsackie routinely assault
inmates and then file prison disciplinary charges falsely accusing the inmates of
instigating the violence. In January 2012, Defendants moved under Federal Rule
of Civil Procedure 12(b)(6) to dismiss the complaint in its entirety. On September
25, 2012, the district court granted Defendants’ motion to dismiss. Smith v.
Martuscello, No. 9:10-CV-1532 (NAM/RFT), 2012 WL 4378125, at *2 (N.D.N.Y.
Sept. 25, 2012). We otherwise assume the parties’ familiarity with the underlying
facts and procedural history.
We review de novo a district court‘s decision on a motion to dismiss,
accepting all factual allegations as true and drawing all reasonable inferences in
the plaintiff‘s favor. Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir.
2002). This appeal involves only whether the dismissal of Smith’s claims against
the Supervisory Defendants was proper.
Smith sues the Supervisory Defendants in their official capacities, as
officers of the state. See Am.Compl. ¶¶ 6-8. ‚A suit against a state officer in his
official capacity is, of course, a suit against the State.‛ Diamond v. Charles, 476
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U.S. 54, 57 n.2 (1986). Because ‚a governmental entity is liable under § 1983 only
when the entity itself is a ‘moving force’ behind the deprivation,‛ in order for
Smith to have a viable claim against the Supervisory Defendants, he must allege
a state ‚’policy or custom’ *that+ played a part in the violation of federal
law.‛ Kentucky v. Graham, 473 U.S. 159, 167 (1985) (quoting Monell v. Dep’t of Soc.
Servs., 436 U.S. 658, 694 (1978)). 1
‚To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on its
face.‛ Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks
omitted). Though Smith’s amended complaint contains allegations of
widespread abuse in the prison system, and at Coxsackie in particular, it contains
no allegations that the abuse was the result of a policy or custom of deliberate
indifference to inmate abuse.
Indeed, we found similar allegations insufficient in our decision in Webb v.
Goord, noting that ‚*a+malgamating more than forty discrete incidents of
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We acknowledge, of course, that ‚*u+nless a State has waived its Eleventh Amendment
immunity or Congress has overridden it . . . a State cannot be sued directly in its own
name regardless of the relief sought. Thus, implementation of state policy or custom
may be reached in federal court only because official-capacity actions for prospective
relief are not treated as actions against the State.‛ Graham, 473 U.S. at 167 n.14 (citing Ex
parte Young, 209 U.S. 123 (1908)) (internal citation omitted).
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misconduct by DOCS officials does not make for a sustainable lawsuit . . .
[T]aken together, the claims do not establish the existence of a policy or practice
existing throughout the DOCS system, or within a single DOCS facility.‛ 340
F.3d 105, 109 (2d Cir. 2003). Indeed, we distinguished between cases in which
‚systemic abuses were at issue‛ and those involving ‚a series of discrete incidents
taking place within a single prison system over a long period of time.‛ Id. at 110.
We conclude that Smith’s claim is of the latter type. Because he fails to allege a
state policy or custom of deliberate indifference to inmate abuse, his claim was
properly dismissed.
We have considered all of Smith’s remaining arguments and find them to
be without merit. For the reasons stated above, the judgment of the district court
is AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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