Policano v. Koehler

715 F. Supp. 598, 1989 U.S. Dist. LEXIS 7587, 1989 WL 79666

• Court: District Court, S.D. New York
• Decided: July 7, 1989
• Docket: No. 87 Civ. 3834 (JES)
• Status: Published

Opinion

SPRIZZO, District Judge:

Pro Se prisoner David Policano brings this action pursuant to 42 U.S.C. § 1983 (1982) alleging that defendants negligently failed to provide adequate security to protect him from a robbery and physical attack by other inmates. Defendants have moved to dismiss the complaint on the ground of failure to state a claim upon which relief may be granted. For the reasons that follow, defendants’ motion is granted.

FACTS

The following facts are undisputed.¹

On April 4, 1987, while away from his cell in the “A” housing area of the Rikers Island House of Detention for Men (“Rik-ers”), plaintiffs cosmetics were stolen from his cell by another inmate. Later that day, the same inmate, along with other inmates, assaulted the plaintiff and robbed him of his watch and gold chain. See Complaint at ¶ IV. Both incidents were perpetrated by inmates from the “B” housing area of Rikers who were, according to Rik-ers regulations, not permitted in the “A” area. See id.; Defendants’ Memorandum of Law at 3. Plaintiff alleges that the incidents resulted from defendants’ negligence because the corrections officer on duty was reading a newspaper at the time the alleged acts occurred. See Plaintiff’s Reply to Defendants’ Motion to Dismiss (“Pis. Reply”) at 2.

DISCUSSION

Plaintiff claims that defendants negligently allowed inmates from the “B” housing area to enter the “A” housing area and asserts that the attack and robbery might not have occurred if the defendants had provided adequate security.² Thus, plaintiff contends that defendants subjected him to cruel and unusual punishment in violation of the Eighth Amendment and denied him liberty without due process in violation of the Fourteenth Amendment.

While an intentional and deliberate failure to provide an inmate with adequate security may state a claim under the Eighth and Fourteenth Amendments, where, as here, plaintiff alleges mere negligence, he fails to state a claim upon which relief can be granted.³ See Davidson v. Cannon, 474 U.S. 344, 347, 106 S.Ct. 668, 670, 88 L.Ed.2d 677 (1986) (allegation of negligence insufficient to state a claim under due process clause); Ayres v. Coughlin, 780 F.2d 205, 209 (2d Cir.1985) (intentional or reckless conduct required to make out Eighth Amendment violation). Therefore, plaintiff’s claim must be dismissed.⁴

CONCLUSION

For the foregoing reasons, defendants’ motion to dismiss the complaint on the ground of failure to state a claim under section 1983 is granted. The Clerk is directed to dismiss the complaint, enter judgment for the defendants, and close the above-captioned action.

It is SO ORDERED.

1 . Defendants have agreed to accept the plaintiffs version of the facts for purposes of this motion. See Defendants’ Memorandum of Law at 3 n. 2.

2 . In his reply to defendants’ motion plaintiff also asserts that defendant Heredia charged him with an unspecified "infraction” for fighting, in an effort to cover up his negligence. See Pis. Reply at 2. This allegation, to the extent that it has any relevance, further confirms that plaintiffs claims are based solely upon allegations of negligence.

3 . Plaintiff has consistently stated his claim in terms of negligence. See Pis. Reply at 1-3. Moreover, on the facts as plaintiff states them his claim cannot be construed in any other fashion.

4 . In addition, plaintiff has failed to allege that defendants Koehler and Hopkins were personally involved in the acts complained of, a prerequisite to a section 1983 claim. See Gill v. Mooney, 824 F.2d 192, 196 (2d Cir.1987). Thus, as to these two defendants, plaintiffs claim must be dismissed on that ground as well.