context: We conclude that the facts pleaded are insufficient to make out such a claim. None of Scott's allegations with respect to the DOC defendants include assertions that affirmative actions taken by these defendants after Earley violated her rights; they refer only to the DOC defendants' failure to act. And Scott has not pleaded facts giving rise to a clearly established affirmative legal obligation on the part of the DOC defendants to take any of the actions that Scott alleges they failed to take. A claim for failure to act is cognizable only in the presence of a corresponding duty to have acted.
citation_a.signal: cf.
citation_a.identifier: 836 F.2d 736, 743
citation_a.parenthetical: "As a general rule, a government official is not liable for failing to prevent another from violating a person's constitutional rights, unless the official is charged with an affirmative duty to act."
citation_a.sentence: See, e.g., Benzman v. Whitman, 523 F.3d 119, 132 (2d Cir.2008) (finding no violation of law where Environmental Protection Agency allegedly failed to consider certain factors pertaining to air quality after the 9/11 attacks because “there is no allegation of any failure to carry out a mandatory duty to take a discrete action required by the [National Contingency Plan]”); cf. Musso v. Hourigan, 836 F.2d 736, 743 (2d Cir.1988) (“As a general rule, a government official is not liable for failing to prevent another from violating a person’s constitutional rights, unless the official is charged with an affirmative duty to act.”). In the absence of such an allegation, this claim must fail.
citation_b.signal: see
citation_b.identifier: 523 F.3d 119, 132
citation_b.parenthetical: finding no violation of law where Environmental Protection Agency allegedly failed to consider certain factors pertaining to air quality after the 9/11 attacks because "there is no allegation of any failure to carry out a mandatory duty to take a discrete action required by the [National Contingency Plan]"
citation_b.sentence: See, e.g., Benzman v. Whitman, 523 F.3d 119, 132 (2d Cir.2008) (finding no violation of law where Environmental Protection Agency allegedly failed to consider certain factors pertaining to air quality after the 9/11 attacks because “there is no allegation of any failure to carry out a mandatory duty to take a discrete action required by the [National Contingency Plan]”); cf. Musso v. Hourigan, 836 F.2d 736, 743 (2d Cir.1988) (“As a general rule, a government official is not liable for failing to prevent another from violating a person’s constitutional rights, unless the official is charged with an affirmative duty to act.”). In the absence of such an allegation, this claim must fail.