Pearson v. Annucci

DECISION and ORDER I. INTRODUCTION Plaintiff Kayson Pearson commenced this action through counsel asserting that the defendants violated his rights under the Eighth and Fourteenth Amendments to the United States Constitution. See First Amended Complaint (“FAC”), Dkt. 23. He contends that while in the custody of the New York Department of Corrections and Community Supervision (“DOCCS”) he was subjected to thirteen consecutive years in solitary confinement without appropriate periodic reviews. Id.¹ The action is brought pursuant to 42 U.S.C. §1983 and seeks declaratory relief, as well as compensatory and punitive damages from all defendants. See id. Defendants Anthony Annucci, John Morley, James O’Gorman, Carl Koenigsmann, Joseph Bellnier, John Colvin, Matthew Thomas, Stewart Eckert, and Donald Venettozzi (“Defendants”) move pursuant Federal Rule of Civil Procedure 12(b)(6) to dismiss the action against them. Dkt. 26. Defendants contend that Plaintiff’s claims pertaining to events that took place prior to September 25, 2017 are barred by the applicable statute of limitation, and that the FAC fails to allege facts plausibly demonstrating each defendant’s personal involvement in the alleged constitutional violations. See id. Plaintiff opposes the motion, Dkt. 30, and Defendants file a reply. Dkt. 32. II. STANDARD OF REVIEW “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)(citation omitted). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. In considering a motion to dismiss, “the court is to accept as true all facts alleged in the complaint…[and] draw all reasonable inferences in favor of the plaintiff.” Kassner v. 2nd Ave. Delicatessen Inc., 496 F.3d 229, 237 (2d Cir. 2007). III. DISCUSSION a. Statute of Limitations Claims brought pursuant to 42 U.S.C. §1983 are subject to a three-year statute of limitations period. See Pinaud v. County of Suffolk, 52 F.3d 1139, 1156 (2d Cir. 1995). The Complaint was filed on September 25, 2020. See Dkt. 1. Thus, Plaintiff’s claims must have accrued after September 24, 2017. A constitutional claim premised on a discrete violation typically accrues when the “plaintiff either has knowledge of his or her claim or has enough information that a reasonable person would investigate and discover the existence of a claim.” Gonzalez v. Hasty, 802 F.3d 212, 220 (2d Cir. 2015). However, the continuing violation doctrine “provides an exception to the normal knew-or-should-have-known accrual date.” Id. (quoting Harris v. City of New York, 186 F.3d 243, 248 (2d Cir. 1999))(internal quotation marks omitted). The doctrine “applies to claims composed of a series of separate acts that collectively constitute one unlawful [] practice,” and where applicable, “the limitations period begins to run when the defendant has engaged in enough activity to make out an actionable…claim.” Id. (internal quotation marks and citations omitted). The continuing violation doctrine applies to Eighth Amendment claims premised on prolonged solitary confinement. See id. at 224 (applying the continuing violation theory to a prisoner’s Eighth Amendment claim challenging his prolonged placement in solitary confinement); see also Smith v. Annucci, 6:18-cv-06261 EAW, 2019 WL 539935, at *7 (W.D.N.Y. Feb. 11, 2019) (applying continuing violation doctrine to Eighth Amendment challenge to long-term confinement in administrative segregation). This is so because “whether incarceration in the SHU violates the Eighth Amendment…depends on the duration and conditions of confinement” and only accrues after the inmate has spent “some threshold period of time” in solitary confinement. Hasty, 802 F.3d at 224. The accrual date for such an Eighth Amendment claim is therefore “a question of fact determinable only by a close assessment of the conditions to which [the inmate] was subjected as a function of the length of that confinement.” Id. Plaintiff’s Eighth Amendment claims are substantially premised on his thirteen-year-long confinement in Administrative Segregation. See FAC 2. The accrual date for Plaintiff’s Eighth Amendment claims (and thus the beginning of the limitations period) is necessarily a question of fact that requires a “close assessment of the conditions to which [Plaintiff] was subjected,” something that cannot be done at the pleading stage. Hasty, 802 F.3d at 224. Additionally, Plaintiff’s stay in solitary confinement continued past September 25, 2017 given that he remained in solitary confinement until as late as June 2019. See FAC 13. Accordingly, Defendants’ motion directed to the Eighth Amendment claims is denied. Turning to the procedural due process claim asserted in the FAC, Plaintiff argues that “[n]o claim brought by Mr. Pearson predates September 25, 2017. And while there may be certain allegations applicable to Mr. Pearson’s due process claim that pre-date September 25, 2017, the FAC alleges a multitude of discrete actions establishing that his Fourteenth Amendment right to due process was violated that either apply to the entire duration of Mr. Pearson’s time in solitary confinement (which lasted until June 2019) or which expressly occurred after September 2017.…[T]he fact that the statute of limitations may exclude allegations prior to September 25, 2017 is not dispositive of Mr. Pearson’s due process claim.” Dkt. 30, at 10-11 (emphasis in original). Because Plaintiff makes specific allegations in the FAC relating to his due process claim which post-date September 2017, see, e.g., FAC 68 (“Mr. Pearson received no reviews at all during his time in the step-down program from April 2018 to June 2019….”); id. 74 (“[E]ach of the DOCCS Deputy Commissioners and DOCCS Superintendents were involved in at least one decision since September 2017 to continue the confinement of Mr. Pearson in Ad Seg or in the step down program”); id 75 (“Defendants Eckert, Colvin and Thoms, as Superintendents, on at least one occasion since September 2017, reviewed, approved, and signed-off on the disciplinary review boards’ continued decisions to keep Mr. Pearson confined in Ad Seg, in knowing disregard of the lack of justification for such confinement.”); id. 76 (“Defendant Venettozzi, as SHU Director, on at least one occasion since September 2017, reviewed, approved, and signed-off on the disciplinary review boards’ continued decisions to keep Mr. Pearson confined in Ad Seg, in knowing disregard of the lack of justification for such confinement.”), and because Plaintiff argues that “[n]o claim brought by Mr. Pearson predates September 25, 2017,” Defendants’ motion in this regard is denied. b. Personal Involvement “It is well settled in this Circuit that personal involvement of the defendants in alleged deprivations is a prerequisite to an award of damages under §1983.” Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994)(internal quotation marks omitted). In Colon v. Coughlin, 58 F.3d 865 (2d Cir. 1995), the Second Circuit identif ied five categories of evidence that may establish the liability of a supervisory official for a subordinate’s conduct under §1983, holding: The personal involvement of a supervisory defendant may be shown by evidence that: (1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference to the rights of [the plaintiffs] by failing to act on information indicating that unconstitutional acts were occurring. Colon, 58 F.3d at 873. Both sides appear to approach the different defendants’ personal involvements, at least in part, through the second, third, and/or fifth Colon categories. See Def. Mem. L. at 9;² Def. Reply, at 1 (citing Colon categories as a potential basis for supervisory liability); id. at 3;³ Pl. Mem. L. at 4-5;⁴ id. at 14-15;⁵ id. at 15;⁶ id.;⁷ id. at 16;⁸ id. at 17;⁹ id. at 17-18.¹⁰ However, in 2020, the Second Circuit disagreed with a district court’s reliance “on Colon to conclude that [supervisory defendant] Bachmann was conceivably personally involved in violating Tangreti’s rights under the Eighth Amendment either because Bachmann was grossly negligent in supervising [other] officers or because she failed to act on information indicating that Tangreti was at substantial risk of sexual abuse.” Tangreti v. Bachmann, 983 F.3d 609, 615-16 (2d Cir. 2020)(internal quotation marks and citation omitted). After examining Iqbal and other Circuits’ treatment of supervisory liability following Iqbal, see id. at 616-18, the Second Circuit joined other circuits “in holding that after Iqbal, there is no special rule for supervisory liability. Instead, a plaintiff must plead and prove ‘that each Government-official defendant, through the official’s own individual actions, has violated the Constitution.’” Id. at 618 (quoting Iqbal, 556 U.S. at 676). The Second Circuit noted that “‘[t]he factors necessary to establish a [§1983] violation will vary with the constitutional provision at issue” because the elements of different constitutional violations vary.” Id. (quoting Iqbal, 556 U.S. at 676), but held that “[t]he violation must be established against the supervisory official directly.” Id. In Tangreti, the defendant-supervisor was alleged to have violated the plaintiff’s Eighth Amendment rights because she failed to prevent a sexual assault. The Circuit stated: In this case, “[t]o state a claim under the Eighth Amendment on the basis that a defendant has failed to prevent harm, a plaintiff must plead both (a) conditions of confinement that objectively pose an unreasonable risk of serious harm to their current or future health, and (b) that the defendant acted with ‘deliberate indifference.’” Vega [v. Semple], 963 F.3d 259, 273 (2d Cir. 2020) (quoting [Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L. Ed.2d 811 (1994)]. Deliberate indifference in this context “means the official must ‘know[] of and disregard[] an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.’” Id. (quoting Farmer, 511 U.S. at 837, 114 S.Ct. 1970). Tangreti must therefore establish that Bachmann violated the Eighth Amendment by Bachmann’s own conduct, not by reason of Bachmann’s supervision of others who committed the violation. She must show that Bachmann herself “acted with ‘deliberate indifference’” — meaning that Bachmann personally knew of and disregarded an excessive risk to Tangreti’s health or safety. Id. (quoting Farmer, 511 U.S. at 834, 114 S. Ct. 1970). Tangreti cannot rely on a separate test of liability specific to supervisors. See Whitson v. Stone Cty. Jail, 602 F.3d 920, 928 (8th Cir. 2010) (“These defendants are thus liable only if they personally displayed deliberate indifference to the risk that [the inmate] would be assaulted.”) (emphasis added). Id. at 618-19. Neither side has addressed their personal involvement arguments under Tangreti’s holding that a plaintiff must establish that a defendant violated a plaintiff’s constitutional rights directly. While there are allegations plausibly indicating that some defendants violated Plaintiff’s rights directly, there are other allegations that could be construed as indicating that some defendants violated Plaintiff’s constitutional rights indirectly. See, e.g., FAC 79 (“The DOCCS Commissioner Defendants Annucci, Morley, O’Gorman, Koenigsman [sic] and Bellnier each had policy-making and supervisory authority within DOCCS and were personally involved in authorizing and maintaining the unconstitutional policies and customs that lead Mr. Pearson to spend more than 13 years in solitary confinement without meaningful or timely review. Through their policy-making and supervisory authority, each of Defendants Annucci, Morley, O’Gorman, Koenigsman [sic] and Bellnier could have ended Mr. Pearson’s time in unconstitutional solitary confinement but did not.”). The Court is hesitant to rule on this issue without giving the parties the opportunity to address personal involvement under Tangreti. Accordingly, Defendants’ motion to dismiss on personal involvement grounds is denied with leave to renew. IV. CONCLUSION For the reasons stated above, Defendants’ motion to dismiss, Dkt. 26, is DENIED. That much of the motion seeking dismissal for lack of personal involvement is denied with leave to renew. If Defendants intend to renew this aspect of their motion, they must do so within thirty (30) days of this Decision and Order. IT IS SO ORDERED. Dated: March 21, 2022