Washington v. Afify

968 F. Supp. 2d 532, 2013 WL 4718693, 2013 U.S. Dist. LEXIS 125523
CourtDistrict Court, W.D. New York
DecidedSeptember 3, 2013
DocketNo. 11-CV-6176L
StatusPublished
Cited by20 cases

This text of 968 F. Supp. 2d 532 (Washington v. Afify) is published on Counsel Stack Legal Research, covering District Court, W.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Washington v. Afify, 968 F. Supp. 2d 532, 2013 WL 4718693, 2013 U.S. Dist. LEXIS 125523 (W.D.N.Y. 2013).

Opinion

[534]*534 DECISION AND ORDER

DAVID G. LARIMER, District Judge.

Anthony Washington, appearing pro se, commenced this action under 42 U.S.C. § 1983. Plaintiff, who was formerly an inmate in the custody of the New York State Department of Correctional Services (“DOCS”), has sued sixteen defendants, all of whom were, at all relevant times, DOCS employees at Southport Correctional Facility, where plaintiff was confined at the time of the events giving rise to this lawsuit.1 Defendants have moved to dismiss the complaint Rule 12(b)(6) of the Federal Rules of Civil Procedure.

BACKGROUND

Plaintiff alleges a wide variety of claims arising out of incidents over a period of several months in 2008. He has sued defendants identified in the complaint as Chaplain M. Afify, Superintendent David Napoli, Deputy Superintendent J. Colvin, Correctional Counselor K. McCarthy, Lieutenant Donahue, Sergeant B. Curren, Sergeant Sepiol, Sergeant Post, and Correctional Officers S. Evertts, S. Waters, R. Deming, W. Faueett, W. Hollenbeck, J.K. Moss, Jayne, and Delaney.

Plaintiffs claims and allegations can be broken down into several categories, a summary of which will suffice here, although further details of the claims will be discussed as necessary below. First, plaintiff alleges that several defendants violated his Eighth Amendment right to be free from cruel and unusual punishment, by ordering plaintiff to clean up human feces without giving him the proper equipment to enable him to do so safely. He also asserts an Eighth Amendment claim against defendant Jayne for kicking plaintiff during a strip search.

Plaintiff also alleges that his right to the free exercise of his religion under the First Amendment to the United States Constitution has been violated in a number of respects. He alleges that defendants have, in various ways, either prevented or hindered him from practicing his Muslim faith, and that they have punished him for doing so by insisting that he work in the mess hall as a condition of his receiving meals that accorded with the requirements of his Muslim faith.

Plaintiff further asserts equal protection claims against most of the defendants, alleging that in committing these violations of his rights, defendants singled him out from among the other inmates. He has also alleged that defendants retaliated against him for his filing of grievances with respect to some of these events. Plaintiff also brings claims against some defendants based on allegations of due process violations, and based on a theory of supervisory liability for their failure to remedy all these alleged violations.

DISCUSSION

I. Eighth Amendment Claims

Plaintiffs claims under the Eighth Amendment mostly arise from his allegations that he was ordered to clean up feces without having received proper training and supplies.

Forcing a prisoner to come into contact with human waste can give rise to an Eighth Amendment claim. See, e.g., Gaston v. Coughlin, 249 F.3d 156, 166 (2d Cir.2001) (“We are unwilling to adopt as a matter of law the principle that it is not [535]*535cruel and unusual punishment for prison officials knowingly to allow an [inmate’s living] area to remain filled with sewage and excrement for days on end”).

In the case at bar, however, plaintiff apparently never did clean the feces as he was ordered to. Apparently there were two separate incidents in which defendants ordered plaintiff to clean feces, on March 14, 2008 and on August 16, 2008. Plaintiff alleges that on both occasions, he refused to comply with those orders because he had not been given proper cleaning equipment. See Complaint ¶¶ 31, 55. Plaintiff alleges that he was retaliated against for those refusals, and those allegations are addressed later in this Decision and Order, but it is plain from plaintiffs own allegations that he never actually suffered any cognizable injury — not even a serious risk of harm — that would support an Eighth Amendment claim. See Hall v. New York, 476 Fed-Appx. 474, 478 n. 1 (2d Cir.2012) (“the fact that Hall was never actually injured ... is ... highly relevant to the Eighth Amendment analysis”). See also Richmond v. Settles, 450 Fed-Appx. 448, 453 (6th Cir.2011) (prisoner must “demonstrate actual physical injury to recover for violations of his Eighth Amendment rights”) (citing 42 U.S.C. § 1997e(e)).

There is some authority that exposing a prisoner to a substantial risk of imminent, serious harm to his health or safety can support an Eighth Amendment claim, even in the absence of any actual physical harm. See, e.g., Smith v. Peters, 631 F.3d 418, 421 (7th Cir.2011) (stating that “[p]rison officials who recklessly expose a prisoner to a substantial risk of a serious physical injury violate his Eighth Amendment rights,” but noting that certain remedies are barred by 42 U.S.C. § 1997e(e)); Harris v. Matthews, 417 Fed-Appx. 758, 763 (10th Cir.2011) (“While an idle threat of impending physical harm that is not carried out will not suffice to state an Eighth Amendment claim, an imminent threat of serious harm, even.though injury never actually occurs, will suffice”) (quoting Purkey v. Green, 28 Fed-Appx. 736, 745 (10th Cir.2001)).

In the case at bar, however, things never reached that point. Plaintiff was directed to clean an area that had been contaminated with feces, and he .refused. From the allegations of the complaint, plaintiff never even came close to actually being directly exposed to any noxious or harmful substances. See Wesolowski v. Kamas, 590 F.Supp.2d 431, 434 (W.D.N.Y.2008) (plaintiffs allegations that he was not given adequate supplies to clean his cell, that his cell was not adequately cleaned after toilet overflowed, and similar allegations, failed to state Eighth Amendment claim, as they “represented] minor inconveniences of prison life which ‘are part of the penalty that criminal offenders pay for their offenses against society’ ”) (quoting Anderson v. Coughlin, 757 F.2d 33, 35 (2d Cir.1985) (additional internal quotes omitted)), aff'd, 409 Fed-Appx. 476 (2d Cir.2011).

Plaintiff does not seek injunctive or declaratory relief (nor do his allegations supply any basis for such relief), and although there is authority that punitive damages may be recoverable even absent actual physical injury, see Smith, 631 F.3d at 421, the threatened harm here was too remote to support such an award. See Reynolds v. Barrett, 741 F.Supp.2d 416, 446 (W.D.N.Y.2010) (“There is no allegation, much less evidence, here that plaintiffs sustained any physical injury as a result of the events giving rise to their claims”); Abney v. Jopp,

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Bluebook (online)
968 F. Supp. 2d 532, 2013 WL 4718693, 2013 U.S. Dist. LEXIS 125523, Counsel Stack Legal Research, https://law.counselstack.com/opinion/washington-v-afify-nywd-2013.