13-4626-cv
Lewis v. Swicki

                                 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
27th day of October, two thousand fifteen.

PRESENT: ROBERT D. SACK,
               CHRISTOPHER F. DRONEY,
                                             Circuit Judges,
               TIMOTHY C. STANCEU,
                                             Judge.
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CHRISTOPHER J.M. LEWIS,

                                      Plaintiff-Appellant,

                                      v.                                                    No. 13-4626-cv

SWICKI, LT., BUTKIEWICUS, CAPT., STEWART, C/O, 

                                    Defendants-Appellees.
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FOR APPELLANT:                                          CHRISTOPHER G. CLARK (Matthew J. Matule,
                                                        Catherine R. Jones, Gregory L. Shiferman, on the
                                                        brief), Boston, MA.

FOR APPELLEES:                                          JAMES W. CALEY, Assistant Attorney General, for
                                                        George Jepsen, Attorney General, Hartford, CT.





    Chief Judge Timothy C. Stanceu, of the United States Court of International Trade, sitting by designation.
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      Appeal from a judgment of the United States District Court for the District of
Connecticut (Thompson, J.).

        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED IN PART and VACATED
IN PART, and the case is REMANDED to the district court for further proceedings consistent
with this order.

       Plaintiff-Appellant Christopher J.M. Lewis appeals from the district court’s judgment
granting Defendants-Appellees’ motion to dismiss his complaint without granting Lewis leave to
amend.1 Lewis, who appeared pro se before the district court, asserts claims under 42 U.S.C.
§ 1983, alleging that Defendants – prison officials at the Northern Correctional Institution in
Connecticut (“NCI”) – violated his constitutional rights by failing to prevent another inmate
from assaulting him. Lewis was stabbed by the other inmate, who had been handcuffed but
slipped out of the handcuffs. We assume the parties’ familiarity with the underlying facts, to
which we refer only as necessary to explain our decision.

        Lewis argues that the district court erred in finding that he did not allege facts sufficient
to demonstrate constitutional violations by (1) Defendants Lieutenant Swicki, an intelligence
officer at NCI, and Captain Butkiewicus, also of NCI, who “knew of [an] incident that took place
in July of 2010” between Lewis and the inmate who later attacked him and who knew that the
incident was followed by a threat of “harm . . . to . . . Lewis in the near future,”2 J.A. 12; and (2)
Defendant Correction Officer Stewart, who strip searched the other inmate just before the inmate
assaulted Lewis with a concealed weapon in November 2010.

        To demonstrate an Eighth Amendment violation, a prisoner must show both that (1) “he
[was] incarcerated under conditions posing a substantial risk of serious harm” and (2) “defendant
prison officials possessed sufficient culpable intent.” Hayes v. N.Y.C. Dep’t of Corr., 84 F.3d
614, 620 (2d Cir. 1996) (citing Farmer v. Brennan, 511 U.S. 825, 834 (1994)). A prison official
acts with sufficient culpable intent “if he has knowledge that an inmate faces a substantial risk of
serious harm and he disregards that risk by failing to take reasonable measures to abate the
harm.” Id.; see also Farmer, 511 U.S. at 837-38 (noting that the deliberate indifference inquiry
is subjective, requiring awareness of facts from which an inference could be drawn that
“substantial risk of serious harm exist[ed]”). “[M]ere inadverten[ce] or negligen[ce] does not


1
  The district court granted Defendants’ motion to dismiss on October 28, 2013. In its opinion, the district court
stated that Lewis had not responded to the motion because his opposition papers were returned to him for failure to
include a signed certificate of service, and he had not refiled them for over a month. The docket, however, reflects
that Lewis had previously moved for an extension of time to file his opposition, and the court had granted him until
November 1, 2013 to do so. Lewis then filed an opposition dated October 29, 2013, that the court received on
November 7, 2013. On November 12, 2013, Lewis moved for reconsideration of the dismissal of his complaint.
The district court granted Lewis’s motion for reconsideration and considered the papers Lewis had filed in response
to Defendants’ motion to dismiss, but dismissed his complaint on the same grounds stated in its earlier opinion.
2
  Lieutenant Swicki notified Captain Butkiewicus of the prior incident “upon [Lewis’s] being place[d] in Captain
[B]utkiewicus[’s] unit.” J.A. 46.
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violate the Eighth Amendment.” Farmer, 511 U.S. at 860 (second and third alterations in
original) (internal quotation marks omitted).

         The district court concluded that the complaint’s “allegations fail to support a claim that
defendants Swicki and Butkiewicus were deliberately indifferent to the plaintiff’s safety” for two
reasons. J.A. 51-52. First, the alleged threat was that Lewis would be harmed in the “near
future” but the assault did not occur until nearly six months later. Second, according to the
district court, Lewis had not alleged that any defendant knew the source of the threat.

        As to the first point, we are not persuaded that the fact that Lewis was not attacked for
several months after the threat was made is sufficient to defeat his deliberate indifference claim
at this stage. Cf. Farmer, 511 U.S. at 842 (“[A]n Eighth Amendment claimant need not show
that a prison official acted or failed to act believing that harm actually would befall an inmate; it
is enough that the official acted or failed to act despite his knowledge of a substantial risk of
serious harm.”). As to the second point, Defendants concede that the district court erred because
in post-complaint filings Lewis alleged that Lieutenant Swicki and Captain Butkiewicus knew
the identity of the inmate involved in the July 2010 incident—Nicholas Trabakoulos.

        We are mindful that “[o]n a 12(b)(6) motion, the complaint should not be dismissed
unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim
which would entitle him to relief.” Morales v. N.Y. State Dep’t of Corr., 842 F.2d 27, 30 (2d Cir.
1988) (quotation marks omitted). “Moreover, federal courts should not dismiss prisoners’ pro se,
in forma pauperis complaints as frivolous unless statute or controlling precedent clearly
forecloses the pleading, liberally construed.” Id. (quotation marks omitted). “[A] pro se
complaint generally should not be dismissed without granting the plaintiff leave to amend at least
once . . . .” Grullon v. City of New Haven, 720 F.3d 133, 140 (2d Cir. 2013).

        Here, Lewis alleged that both Lieutenant Swicki and Captain Butkiewicus (1) knew an
incident had taken place between Lewis and Trabakoulos in July 2010, (2) knew that a threat
against Lewis had been made following this incident, which put Lewis’s safety in jeopardy, and
(3) “fail[ed] to take corrective actions to protect [Lewis from the assault] that cause[d] [his]
injuries.” J.A. 12. However, Lewis does not suggest what these “corrective actions” should
have been, nor does he allege any facts to support his claim that Lieutenant Swicki and Captain
Butkiewicus failed to take such actions or that their failure to do so caused his injuries. Compare
with Morales, 842 F.2d at 29, 30 (holding that pro se prisoner sufficiently pled a deliberate
indifference claim where he alleged that a fellow inmate, from whom he had been separated
following an earlier fight, “‘was allowed to enter’ plaintiff’s housing unit . . . ‘without
authorization to be in the dormitory’ . . . [and then] attacked plaintiff”). Nevertheless, although
Lewis’s allegations are sparse, we cannot “rule out any possibility. . . that an amended complaint
would succeed in stating a claim.” Shomo v. City of N.Y., 579 F.3d 176, 184 (2d Cir. 2009)
(quoting Cruz v. Gomez, 202 F.3d 593, 597-98 (2d Cir. 2000)). Lewis may yet show that he will
“be able to adduce facts from which a rational trier of fact could conclude” that the failure of
Lieutenant Swicki or Captain Butkiewicus or both to take appropriate actions to protect him
“amounted to deliberate indifference.” Morales, 842 F.2d at 30. The district court should have
at the very least afforded Lewis an opportunity to replead his claims against Lieutenant Swicki

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and Captain Butkiewicus. Accordingly, we vacate the district court’s dismissal of Lewis’s
claims against Lieutenant Swicki and Captain Butkiewicus and grant Lewis leave to replead his
claims against those two defendants.

        As to Correction Officer Stewart, however, we conclude that Lewis has failed to plead an
Eighth Amendment violation and that allowing amendment would be futile, see Ellis v. Chao,
336 F.3d 114, 127 (2d Cir. 2003), because the very facts that Lewis himself has pled demonstrate
that Correction Officer Stewart did not act with deliberate indifference. Lewis alleges only that
Correction Officer Stewart “failed in searching [Trabakoulos] [to] find[ ] the weapon [Lewis]
was attack[ed] with.” J.A. 12. However, “deliberate indifference describes a state of mind more
blameworthy than negligence,” and “Eighth Amendment liability requires more than ordinary
lack of due care for the prisoner’s interests or safety.” Farmer, 511 U.S. at 835 (internal
quotation marks omitted). Because the problems with Lewis’s claim against Correction Officer
Stewart are substantive, “better pleading will not cure [them].” Cuoco v. Moritsugu, 222 F.3d
99, 112 (2d Cir. 2000). Accordingly, we identify no error in the dismissal of Lewis’s claims
against Correction Officer Stewart without affording Lewis leave to amend.

       We have considered the parties’ remaining arguments and find them to be without merit.
For the foregoing reasons, the judgment of the district Court is AFFIRMED IN PART and
VACATED IN PART, and the case is REMANDED to the district court for further
proceedings consistent with this order.

                                            FOR THE COURT:
                                            Catherine O’Hagan Wolfe, Clerk of Court




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