         11-488-pr
         LaMagna v. Brown


                          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 TO A SUMMARY
     ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 4th day of April, two thousand twelve.
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                         Chief Judge,
 9                ROSEMARY S. POOLER,
10                SUSAN L. CARNEY,
11                         Circuit Judges.
12       _____________________________________
13
14       Salvatore LaMagna,
15
16                          Plaintiff-Appellant,
17
18                   v.                                         11-488-pr
19
20       Warden Brown, Superintendent,
21       Eastern Correctional Facility,
22
23                          Defendant-Appellee,
24
25       Jimmie Miller,
26
27                     Defendant.
28       _____________________________________

                                                1
 1   FOR PLAINTIFF-APPELLANT:         Salvatore LaMagna, pro se,
 2                                    Napanoch, NY.
 3
 4   FOR DEFENDANT-APPELLEE:          Martin A. Hotvet, Assistant
 5                                    Solicitor General, Nancy A.
 6                                    Spiegel, Senior Assistant
 7                                    Solicitor General, Barbara
 8                                    D. Underwood, Solicitor
 9                                    General, for Eric T.
10                                    Schneiderman, Attorney
11                                    General of the State of New
12                                    York, Albany, NY.
13
14
15       Appeal from the judgment of the United States District

16   Court for the Northern District of New York (McAvoy, J.;

17   Lowe, M.J.).

18       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

19   AND DECREED that the judgment of the district court is

20   AFFIRMED.

21       Plaintiff-Appellant Salvatore LaMagna, proceeding pro

22   se, appeals from the district court’s judgment dismissing

23   his complaint brought pursuant to 42 U.S.C. § 1983.     We

24   assume the parties’ familiarity with the underlying facts,

25   the procedural history of the case, and the issues on

26   appeal.

27       “We review the district court’s grant of a Rule

28   12(b)(6) motion to dismiss de novo, accepting all factual

29   claims in the complaint as true, and drawing all reasonable


                                  2
 1   inferences in the plaintiff’s favor.”     Famous Horse Inc. v.

 2   5th Ave. Photo Inc., 624 F.3d 106, 108 (2d Cir. 2010).        To

 3   survive a Rule 12(b)(6) motion to dismiss, the complaint

 4   must plead “enough facts to state a claim to relief that is

 5   plausible on its face.”   Bell Atl. Corp. v. Twombly, 550

 6   U.S. 544, 570 (2007); see also Ashcroft v. Iqbal, 556 U.S.

 7   662, 129 S. Ct. 1937, 1949 (2009).    Although all allegations

 8   contained in the complaint are assumed to be true, this

 9   tenet is “inapplicable to legal conclusions.”     Iqbal, 129 S.

10   Ct. at 1949.   A claim will have “facial plausibility when

11   the plaintiff pleads factual content that allows the court

12   to draw the reasonable inference that the defendant is

13   liable for the misconduct alleged.”     Id.   Additionally,

14   while pro se complaints must contain sufficient factual

15   allegations to meet the plausibility standard, see Harris v.

16   Mills, 572 F.3d 66, 72 (2d Cir. 2009), we look for such

17   allegations by reading the complaint with “special

18   solicitude” and interpreting it to raise the strongest

19   claims it suggests.   Triestman v. Fed. Bureau of Prisons,

20   470 F.3d 471, 474-75 (2d Cir. 2006) (quoting Ruotolo v.

21   I.R.S., 28 F.3d 6, 8 (2d Cir. 1994)).

22



                                   3
 1       We have conducted a de novo review of the record in

 2   light of these standards and now affirm the district court’s

 3   dismissal of LaMagna’s complaint.   LaMagna failed to object

 4   to the magistrate judge’s report and recommendation which

 5   was subsequently adopted by the district court, despite

 6   having been informed of the consequences of such failure.

 7   He thus waived any challenge to the district court’s

 8   dismissal of his original complaint.   See Frank v. Johnson,

 9   968 F.2d 298, 299 (2d Cir. 1992) (“Failure to object [to the

10   report and recommendation] within the allotted [time period]

11   results in a waiver of further judicial review.”); see also

12   Spence v. Superintendent, 219 F.3d 162, 174 (2d Cir. 2000).

13       The district court dismissed the amended complaint on

14   the ground that it did not adequately allege that the

15   Appellee was personally involved in the sexual assault.

16   LaMagna argues that the district court “has the authority to

17   intervene and require the respondents to pay . . . monetary

18   damages regardless of who is the proper respondent.”    In

19   this Circuit, however, “[i]t is well settled . . . that

20   personal involvement of defendants in alleged constitutional

21   deprivations is a prerequisite to an award of damages under

22   § 1983.”   Farid v. Ellen, 593 F.3d 233, 249 (2d Cir. 2010)



                                   4
 1   (quoting Farrell v. Burke, 449 F.3d 470, 484 (2d Cir.

 2   2006)).   A defendant’s supervisory authority is insufficient

 3   in itself to demonstrate liability under § 1983.      See

 4   Richardson v. Goord, 347 F.3d 431, 435 (2d Cir. 2003) (per

 5   curiam) (“[M]ere linkage in the prison chain of command is

 6   insufficient to implicate a state commissioner of

 7   corrections or a prison superintendent in a § 1983 claim.”

 8   (internal quotation marks omitted)).   Rather, “a plaintiff

 9   must plead that each Government-official defendant, through

10   the official’s own individual actions, has violated the

11   Constitution.”   Iqbal, 129 S. Ct. at 1948.

12       LaMagna’s amended complaint alleged no personal

13   involvement on the part of the Appellee.      It alleged no more

14   than that “employees” left a security gate unlocked and that

15   “the civilian” supervising the inmates at the time of

16   LaMagna’s alleged assault was “not paying attention.”

17   LaMagna also alleged that “the administration never took any

18   sexual assault seriously until this incident,” but that,

19   following the incident, the prison posted “an informational

20   sign about promptly reporting sexual assaults.”      Thus, there

21   is no allegation that the Appellee “failed to remedy the

22   wrong” once being informed of LaMagna’s assault.      See Colon

23   v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995).

                                   5
 1       Finally, LaMagna asserted in his amended complaint that

 2   the Appellee violated his duty “to keep [LaMagna] . . . free

 3   from sexual assaults . . . and he violated that by

 4   deliberate indifference.”   This allegation lacks a factual

 5   foundation and therefore is a conclusory allegation

 6   “masquerading as [a] factual conclusion[],” which is

 7   insufficient to defeat a motion to dismiss.    Kirch v.

 8   Liberty Media Corp., 449 F.3d 388, 398 (2d Cir. 2006)

 9   (quoting Smith v. Local 819 I.B.T. Pension Plan, 291 F.3d

10   236, 240 (2d Cir. 2002)).

11       We have considered all of LaMagna’s remaining arguments

12   and find them to be without merit.    Accordingly, we AFFIRM

13   the judgment of the district court.

14
15                               FOR THE COURT:
16                               Catherine O’Hagan Wolfe, Clerk
17
18




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