       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,

                                                          1
                           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



                                          2
‚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



                                           3
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



1
 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).

                                              4
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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