14‐4569‐pr Guillory v. Cuomo

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 COURTʹS 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 ʺSUMMARY ORDERʺ). 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 29th day of September, two thousand fifteen.

PRESENT: ROBERT D. SACK, DENNY CHIN, CHRISTOPHER F. DRONEY, Circuit Judges.

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PATRICK GUILLORY, Plaintiff‐Appellant,

v. 14‐4569‐pr

ANDREW CUOMO, Governor of New York, ANTHONY ANNUCCI, DOCCS Commissioner, ALBERT PRACK, DOCCS SHU Director, KAREN BELLAMY, DOCCS IGP Director, MR. GONZALEZ, DOCCS Inspector General, GRAZIANO, LIVISTON, DOCCS Inspector General, Defendants‐Appellees.

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FOR PLAINTIFF‐APPELLANT: Patrick Guillory, pro se, Dannemora, New York.

Appeal from the United States District Court for the Northern District of

New York (DʹAgostino, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

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

Plaintiff‐appellant Patrick Guillory, proceeding pro se, appeals from the

judgment of the district court entered May 1, 2015 dismissing his amended complaint

brought under

Guillory alleges that the Governor of New York,

Andrew Cuomo, and various high‐ranking corrections officials (collectively

ʺdefendantsʺ) facilitated a widespread pattern of violence in New Yorkʹs prisons and

improper implementation of a rehabilitative program called Aggression Replacement

Training (ʺARTʺ). By decision and order filed December 2, 2014, the district court sua

sponte dismissed Guilloryʹs complaint for failure to state a claim upon which relief may

be granted. By decision and order filed May 1, 2015, the district court granted plaintiffʹs

motion to convert its December order into a final judgment. We assume the partiesʹ

familiarity with the underlying facts, the procedural history, and the issues on appeal.

We review de novo the district courtʹs sua sponte dismissal of a complaint.

Giano v. Goord,

, 149‐50 (2d Cir. 2001). A complaint must plead ʺenough

facts to state a claim to relief that is plausible on its face,ʺ Bell Atl. Corp. v. Twombly, 550

1The district court dismissed the action below before defendants were served with the summons and complaint. Hence, they never appeared below, and they have not appeared in this appeal. ‐ 2 ‐

U.S. 544, 570 (2007), and ʺallow[] the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged,ʺ Ashcroft v. Iqbal,

(2009).

Although all allegations contained in the complaint are assumed to be true, this tenet is

ʺinapplicable to legal conclusions.ʺ

Section 1983 establishes a cause of action for ʺthe deprivation of any

rights, privileges, or immunities secured by the Constitution and laws.ʺ

. Supervisor liability under § 1983 requires some personal involvement or

responsibility and ʺcan be shown in one or more of the following ways: (1) actual direct

participation in the constitutional violation, (2) failure to remedy a wrong after being

informed through a report or appeal, (3) creation of a policy or custom that sanctioned

conduct amounting to a constitutional violation, or allowing such a policy or custom to

continue, (4) grossly negligent supervision of subordinates who committed a violation,

or (5) failure to act on information indicating that unconstitutional acts were occurring.ʺ

Hernandez v. Keane,

(2d Cir. 2003).

First, the district court correctly dismissed Guilloryʹs claims against

Annucci, Prack, Bellamy, Graziano, and Liviston, as Guillory has not plausibly alleged

personal involvement of these individuals in the alleged violations. We conclude that

Guilloryʹs appeal as to these defendants is without merit substantially for the reasons

articulated by the district court. Guillory v. Cuomo, No. 14‐CV‐0971 (N.D.N.Y. Dec. 2,

2014).

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Second, the district court correctly dismissed Guilloryʹs claims against

Cuomo. While we have held that evidence that a prisoner sent a letter with a medical

complaint to a prison official ʺmay create an issue of fact as to whether [the official] was

deliberately indifferent to [the prisonerʹs] medical needs,ʺ Richardson v. Goord,

(2d Cir. 2003); see also Grullon v. City of New Haven,

(2d Cir.

2013) (concluding that at pleading stage, plaintiff is ʺentitled to have the court draw the

reasonable inference ‐‐ if his . . . complaint contained factual allegations indicating that

the Letter was sent to the [defendant] at an appropriate address and by appropriate

means ‐‐ that the [defendant] in fact received the Letter, read it, and thereby became

aware of the alleged conditions of which [the plaintiff] complainedʺ), here Guillory

alleges only that he ʺwrote [Cuomo] several letters and affidavits explaining the

beatings by staff upon [him].ʺ Am. Compl. at 16. He did not allege when and where

the letters were sent, what they said, or how they were sent. Accordingly, Guillory has

not pleaded facts sufficient to ʺnudge[]ʺ his claims ʺacross the line from conceivable to

plausible.ʺ Twombly, 550 U.S. at 570. Moreover, the district court provided Guillory

with an opportunity to amend his complaint again, but Guillory declined to do so.

Third, the district court correctly dismissed Guilloryʹs specific allegations

involving ART for failure to state a constitutional claim. Assuming that Guillory was

attempting to raise a due process claim, his allegations are insufficient because he does

not have a protected liberty interest in participating in ART. See Moody v. Daggett,

, 88 n.9 (1976) (noting that eligibility for rehabilitative programs in federal ‐ 4 ‐

prisons is not protected by the Due Process Clause); Lee v. Governor of N.Y.,

(2d Cir. 1996) (holding no liberty interest in participating in temporary release

program).

Finally, we have considered all of Guilloryʹs remaining arguments and

find them to be without merit. Accordingly, we AFFIRM the judgment of the district

court.

FOR THE COURT: Catherine OʹHagan Wolfe, Clerk

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