CHRISTIAN F. HUMMEL, Magistrate Judge.
Plaintiff
The facts are related herein in the light most favorable to plaintiff as the nonmoving party.
In support of their Motion for Summary Judgment, defendants filed a Statement of Material Facts.
After leaving the inmate cafeteria, plaintiff and inmate Moore returned to their shared housing unit. Dkt. No. 48-1 ¶ 23. Although they walked within the same group of inmates, plaintiff and inmate Moore did not interact.
After the altercation, plaintiff remained in the inmate restroom and wiped the blood away from his cut. Dkt. No. 48-1 ¶ 38. Plaintiff then attended his afternoon Alcohol and Substance Abuse Treatment ("ASAT") program class without informing C.O. Prue or any other Hale Creek official about the altercation, his injuries, or that he wanted protection from inmate Moore.
Pursuant to the investigation, plaintiff submitted a "Free Will Statement," which made no mention that he had ever requested protection from inmate Moore prior to the September 10, 2015 altercation or had informed anyone of an alleged threat to him by inmate Moore. Dkt. No. 48-1 ¶ 59. Plaintiff and inmate Moore were both charged with violating DOCCS inmate rules, and plaintiff was issued a misbehavior report charging him with fighting (100.13).
"A court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. Civ. P. 56(a). The moving party has the burden of showing the absence of disputed material facts by providing the Court with portions of "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which support the motion. FED. R. civ. P. 56(c);
To avoid summary judgment, a non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts."
Where, as here, a party seeks judgment against a
Local Rule 7.1(a)(3) requires a party moving for summary judgment to file and serve a Statement of Material Facts.
Defendants argue that because plaintiff has failed to file a response to their Statement of Material Facts, the facts set forth therein must be deemed admitted.
As a threshold matter, defendants argue that plaintiff has failed to exhaust his administrative remedies.
The Prison Litigation Reform Act ("PLRA") requires that a prisoner exhaust any administrative remedies available to him or her before bringing an action for claims arising out of his or her incarceration.
Although the Supreme Court has deemed exhaustion mandatory, the Second Circuit has recognized that "certain caveats apply."
Although
In support of their motion, defendants have proffered the declarations of Inmate Grievance Program Supervisor ("IGPS") Gregory Wesley (Hale Creek), IGPS Erin Pfendler (Marcy), and Assistant Director of the DOCCS Inmate Grievance Program Rachael Seguin.
Moreover, plaintiff's transfer from Hale Creek to Marcy does not excuse his failure to exhaust, as the grievance process is identical in all New York State-run facilities.
Alternatively, defendants move to dismiss on the basis that plaintiff fails to state a prima facie failure to protect claim.
As to the first prong, the deprivation must be "sufficiently serious,"
As to the second prong, the plaintiff must demonstrate that prison officials actually knew of and disregarded an excessive risk of harm to the inmate's health and safety.
Defendants rely on
As to the first prong — whether plaintiff established that he was incarcerated under conditions posing a substantial risk of serious harm — the Court held that the plaintiff failed to demonstrate that "risk he faced was substantial," and, that to the extent that such risk existed, the plaintiff failed to show that it "was one of serious harm."
As to the second prong — whether the plaintiff established that the defendants acted with the necessary state of mind — the
Here, as in
Dkt. No. 48-16 ("Pl. Dep.") at 40-41. Such statements are consistent with plaintiff's testimony at the September 16, 2015 Tier III disciplinary hearing, wherein plaintiff testified that, inmate Moore "jumped in on [he and inmate Robinson's] conversation. I told him to mind his business. He called me a pussy. I called him a pussy back. And he said you going to see who a pussy when we get back to the dorms." Dkt. No. 48-14 at 6. Moreover, plaintiff's signed "Free Will Statement" does not mention that inmate Moore threatened to cut him with a knife.
As in
Moreover, even assuming that plaintiff had established that he was incarcerated under conditions posing a substantial risk of serious harm, he has failed to demonstrate that Supt. Hallenbeck or C.O. Prue actually knew of and disregarded an excessive risk of harm to his health and safety.
As a threshold matter, defendants argue that Supt. Hallenbeck had no personal involvement in the events at issue in this lawsuit.
Hallenbeck Decl. ¶ 8. Supt. Hallenbeck did not witness the assault as he was not present in the inmate bathroom, or anywhere in the C-2 housing unit, at the time of the attack.
As to C.O. Prue, affording plaintiff special solicitude, plaintiff contends that after returning to his dorm from the inmate cafeteria, he informed C.O. Prue that inmate Moore threatened him.
To the extent that plaintiff contends that C.O. Prue failed to intervene in the September 10, 2015 altercation, this argument must fail. To establish liability under a failure to intervene theory, "a plaintiff must prove the use of excessive force by someone other than the individual and that the defendant under consideration: [](1) possessed actual knowledge of the use by another of excessive force; [](2) had a realistic opportunity to intervene and prevent the harm from occurring; and [](3) nonetheless disregarded that risk by intentionally refusing or failing to take reasonable measures to end the use of excessive force."
Insofar as plaintiff contends that C.O. Prue "wasn't on his assigned post which suppose [sic] to be at the desk," Pl. Opp. at 4-5, plaintiff does not proffer evidence of DOCCS rules or regulations that require a corrections officer to be seated at the officer's desk in their assigned location.
Accordingly, as plaintiff fails to demonstrate a prima facie failure to protect claim, it is recommended that defendants' motion be granted.
Defendants argue that, even if plaintiff's Eighth Amendment claim is substantiated, they are entitled to qualified immunity. Def. Mem. of Law at 26-28. Qualified immunity shields public officials from being sued for conduct undertaken in the course of their duties so long as that conduct "does not violate clearly established statutory or constitutional rights of which a reasonable person would have known."
Here, plaintiff has not established a constitutional violation to satisfy the first prong of the qualified immunity test.
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have fourteen days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court.
Terry Cicio, Malone, NY, pro se.
Hon. Andrew M. Cuomo, Office of the Attorney General, State of New York, C. Harris Dague, Esq., Asst. Attorney General, of Counsel, Albany, NY, for Defendants.
DAVID E. PEEBLES, United States Magistrate Judge.
Currently pending before the court is defendants' motion for summary judgment seeking dismissal of plaintiff's complaint. In their motion defendants challenge the legal sufficiency of plaintiff's excessive force and failure to intervene claims and additionally assert their entitlement to Eleventh Amendment immunity from suit in their official capacities and good faith qualified immunity from suit as individuals. Because a reasonable factfinder could conclude from the record now before the court that more force than necessary to subdue and remove Cicio from his cell was applied maliciously and sadistically by prison officials, I am constrained to recommend that defendants' motion be denied, except as to plaintiff's claims against defendant Woods and those against defendants in their official capacities, which are subject to dismissal.
Plaintiff is a prison inmate entrusted to the care and custody of the New York State Department of Correctional Services ("DOCS"). See generally Complaint (Dkt. No. 1); see also Dague Decl. (Dkt. No. 35-16) ¶ 3 and Exh. A (Dkt. No. 35-17). At the times relevant to his claims, plaintiff was designated to the Upstate Correctional Facility ("Upstate"), located in Malone, New York.
The events giving rise to the claims in this action were set in motion on December 27, 2007, when plaintiff refused to return a razor given to him by prison officials to permit him to shave. Dague Decl. (Dkt. No. 35-16) Exh. B (Dkt. No. 35-18) (Transcript of Deposition of Terry Cicio, conducted on March 12, 2009, hereinafter cited as "Cicio Dep. Tr.") at pp. 29-30; Gill Aff. (Dkt. No. 35-4) ¶ 5 and Exh. A (Dkt. No. 35-5). According to Cicio, he purposefully withheld the razor in order to prompt a transfer out of the gallery on which his cell was located to another area. Cicio Dep. Tr. at pp. 27-28.
Inmates at Upstate are assigned cells based upon a written protocol designated as the Progressive Inmate Movement System, or "PIMS", intended to provide incentive and encourage behavioral adjustment for SHU inmates. See Dague Decl. (Dkt. No. 35-16) ¶ 8. Under the PIMS, there are three designated categories of SHU cells; level three affords the most desirable conditions, while PIMS level one inmates enjoy the least privileges. Id.; see also Cicio Dep. Tr. at p. 27. At the time of plaintiff's refusal of surrender his razor, he was assigned to a PMS level three cell. Cicio Dep. Tr. at p. 27.
At 2:30 p.m. on that day Corrections Lieutenant Andrew Lamora issued a final order directing plaintiff to exit his cell, warning that if he persisted in his refusal force would be applied to carry out his removal. Gill Aff. (Dkt. No. 35-4) ¶¶ 11-12; Lamora Aff. (Dkt. No. 35-8) ¶¶ 8-10; see also Complaint (Dkt. No. 1) Statement of Facts ¶ 4. Despite that last directive, plaintiff refused to obey defendant Lamora's command. Lamora Aff. (Dkt. No. 35-8) ¶ 9.
Following established facility protocol, prison officials took the first step toward conducting a forcible extraction by administering two one-second bursts of a chemical aerosol into plaintiffs cell, followed by another request for voluntary compliance. Gill Aff. (Dkt. No. 35-4) ¶¶ 12-13 and Exhs. A (Dkt. No. 34-5) and B (Dkt. No. 34-6); Lamora Aff. (Dkt. No. 35-8) ¶ 11. The process was repeated at two minute intervals on four more occasions; each time, corrections officers offered plaintiff the opportunity to comply with their orders before administering another dose. Gill Aff. (Dkt. No. 35-4) ¶¶ 12-14.
When the use of chemicals failed to convince Cicio to exit his cell, the cell extraction team that had been assembled, including Corrections Officers Richard Scott, Richard MacWiliams, Kurt Crossett and Christopher Demers, entered the cell. Gill Aff. (Dkt. No. 35-4) ¶ 17 and Exhs. A (Dkt. No. 35-5) and B (Dkt. No. 35-6); Lamora Aff. (Dkt. No. 35-8) ¶ 15. To accomplish the forced extraction each of those individuals was assigned a specific task. Lamora Aff. (Dkt. No. 35-8) ¶ 16. Corrections Officer Scott was designated to be the first to enter the cell and, through use of a shield, was tasked with attempting to bring Cicio to the ground and assist with the application of handcuffs. Id. Corrections Officer MacWilliams' assigned role was to control plaintiff's arms and to assist in the take down and application of handcuffs. Id. Corrections Officer Demers was assigned to control Cicio's right leg and assist in the take down and application of ankle restraints, and Corrections Officer Crossett was similarly designated as the person responsible for control of plaintiff's left leg, assisting in the take down, and application of ankle restraints. Id. The cell extraction, which proceeded in accordance with this protocol, was successfully completed in approximately two minutes or less. Gill Aff. (Dkt. No. 35-4) ¶ 20; Lamora Aff. (Dkt. No. 35-8) ¶ 18; Scott Aff. (Dkt. No. 35-7) 13; Demers Aff. (Dkt. No. 35-12) ¶ 13; Crossett Aff. (Dkt. No. 35-10) ¶ 13; Facteau Aff. (Dkt. No. 35-11) ¶ 12.
Following the cell extraction, plaintiff was taken to a decontamination area where his clothes were removed and traces of the chemical aerosol were eliminated. Gill Aff. (Dkt. No. 35-4) Exh. A (Dkt. No. 35-5). Plaintiff was thereafter brought to a holding cell to be medically examined and photographed. Id.
During the course of the cell extraction both plaintiff and two of the participating corrections officers suffered injuries. Plaintiff described his injuries as including a scratch to the right side of his face less than an inch long, a contusion above his left eye, a bruise on his left shoulder "the size of a quarter or a little bigger "thing major", and a bruise to the back of his shoulder. Complaint (Dkt. No. 1) Statement of Facts ¶ 6; Cicio Dep. Tr. at pp. 48-52. A medical report prepared following the examination notes the following with regard to plaintiffs injuries:
Gill Aff. (Dkt. No. 35-4) Exh. B (Dkt. No. 35-6). Following the incident plaintiff stated to medical staff that he was "fine" and did not wish to receive treatment. Id.; see also Cicio Dep. Tr. at pp. 75-76. During the cell extraction Corrections Officer MacWilliams suffered injury to his right wrist, and Corrections Officer Scott injured his right hip; no other staff members involved reported any injuries. Gill Aff. (Dkt. No. 35-4) Exh. A (Dkt. No. 35-5).
For the most part, the foregoing facts are not disputed by the plaintiff. He does, however, contend that during the course of the extraction he was "repeatedly punched" by Corrections Officer MacWiliams, who asked "you want to play?" Complaint (Dkt. No. 1) Statement of Facts ¶ 5; Cicio Dep. Tr. at pp. 46-47; Cicio Aff. (Dkt. No. 36) ¶¶ 10, 12. Plaintiff further alleges that while the other members of the cell extraction team, including Sergeant R. Gill and Lieutenant R. Lamora, "had ample time to curb the abuse" he suffered, they stood by without intervening. Id. at ¶ 11.
Plaintiff commenced this action on May 7, 2008. Dkt. No. 1. Named as defendants in Cicio's complaint are Robert Woods, the superintendent at Upstate; Corrections Lieutenant Randy Lamora; Corrections Sergeant Robert Gill; and Corrections Officers Richard Scott, Richard MacWillams, Kirk Crossett, Eric Facteau, and Christopher Demers. Plaintiffs complaint asserts a single cause of action, alleging violation of his Eighth Amendment right against cruel and unusual punishment.
Summary judgment motions are governed by Rule 56 of the Federal Rules of Civil Procedure. Under that provision, summary judgment is warranted when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986); Security Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 82-83 (2d Cir.2004). A fact is "material", for purposes of this inquiry, if it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248, 106 S.Ct. at 2510; see also Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir.2005) (citing Anderson). A material fact is genuinely in dispute "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248, 106 S.Ct. at 2510.
A party seeking summary judgment bears an initial burden of demonstrating that there is no genuine dispute of material fact to be decided with respect to any essential element of the claim in issue; the failure to meet this burden warrants denial of the motion. Anderson, 477 U.S. at 250 n. 4, 106 S.Ct. at 2511 n. 4; Security Ins., 391 F.3d at 83. In the event this initial burden is met, the opposing party must show, through affidavits or otherwise, that there is a material issue of fact for trial. Fed.R.Civ.P. 56(e); Celotex, 477 U.S. at 324, 106 S.Ct. at 2553; Anderson, 477 U.S. at 250, 106 S.Ct. at 2511. Though pro se plaintiffs are entitled to special latitude when defending against summary judgment motions, they must establish more than mere "metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); but see Vital v. Interfaith Med. Ctr., 168 F.3d 615, 620-21 (2d Cir.1999) (noting obligation of court to consider whether pro se plaintiff understood nature of summary judgment process).
Plaintiffs complaint asserts a cause of action brought under the Eighth Amendment, which proscribes punishments that involve the "unnecessary and wanton infliction of pain" and are incompatible with "the evolving standards of decency that mark the progress of a maturing society." Estelle v. Gamble, 429 U.S. 97, 102, 104, 97 S.Ct. 285, 290, 291, 50 L.Ed.2d 251 (1976); see also Whitley v. Albers, 475 U.S. 312, 319, 106 S.Ct. 1076, 1084 (1986) (citing, inter alia, Estelle). While the Eighth Amendment does not mandate comfortable prisons, neither does it tolerate inhumane treatment of those in confinement; thus, the conditions of an inmate's confinement are subject to Eighth Amendment scrutiny. Farmer v. Brennan, 511 U.S. 825, 832, 114 S.Ct. 1970, 1976, 128 L.Ed.2d 811 (1994) (citing Rhodes v. Chapman, 452 U.S. 337, 349, 101 S.Ct. 2392, 2400, 69 L.Ed.2d 59 (1981)).
A plaintiff's constitutional right against cruel and unusual punishment is violated by an "unnecessary and wanton infliction of pain." Whitley, 475 U.S. at 319, 106 S.Ct. at 1084 (citations and quotations omitted); Griffen v. Crippen, 193 F.3d 89, 91 (2d Cir.1999). The lynchpin inquiry in deciding claims of excessive force against prison officials is "whether force was applied in a good-faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm." Hudson v. McMillian, 503 U.S. 1, 6-7, 112 S.Ct. 995, 998-999, 117 L.Ed.2d 156 (1992) (applying Whitley to all excessive force claims); Whitley, 475 U.S. at 320-21, 106 S.Ct. at 1085 (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.) (Friendly, J.), cert. denied sub nom., John v. Johnson, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 324 (1973)).
Analysis of claims of cruel and unusual punishment requires both objective examination of the conduct's effect and a subjective inquiry into the defendant's motive for his or her conduct. Wright v. Goord, 554 F.3d 255, 268 (2d Cir.2009) (citing Hudson, 503 U.S. at 7-8, 112 S.Ct. at 999 and Blyden v. Mancusi, 186 F.3d 252, 262 (2d Cir.1999)). As was recently emphasized by the United States Supreme Court in Wilkins v. Gaddy, however, after Hudson the "core judicial inquiry" is focused not upon the extent of the injury sustained, but instead whether the nature of the force applied was nontrivial. ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___, 2010 WL 596513, at *3 (Feb. 22, 2010) (per curiam). Accordingly, when considering the subjective element of the governing Eighth Amendment test a court must be mindful that the absence of serious injury, though relevant, does not necessarily negate a finding of wantonness since, as the Supreme Court has noted,
Hudson, 503 U.S. at 9, 112 S.Ct. at 1000 (citations omitted); Velasquez v. O'Keefe, 899 F.Supp. 972, 973 (N.D.N.Y.1995) (McAvoy, C.J.) (quoting Hudson, 503 U.S. at 9, 112 S.Ct. at 1000); see Romaine v. Rewson, 140 F.Supp.2d 204, 211 (N.D.N.Y.2001) (Kahn, J.). Even a de minimis use of physical force can constitute cruel and unusual punishment if it is "repugnant to the conscience of mankind." Hudson, 503 U.S. at 9-10, 112 S.Ct. 1000 (citations omitted).
With its focus on the harm done, the objective prong of the inquiry is contextual and relies upon "contemporary standards of decency." Wright, 554 F.3d at 268 (quoting Hudson, 503 U.S. at 8, 112 S.Ct. at 1000) (internal quotations omitted)). When addressing this component of an excessive force claim under the Eighth Amendment calculus, the court can consider the extent of the injury suffered by the inmate plaintiff. While the absence of significant injury is certainly relevant, it is not dispositive. Hudson, 503 U.S. at 7, 112 S.Ct. at 999. The extent of an inmate's injury is but one of the factors to be considered in determining a prison official's use of force was "unnecessary and wanton"; courts should also consider the need for force, whether the force was proportionate to the need, the threat reasonably perceived by the officials, and what, if anything, the officials did to limit their use of force. Whitley, 475 U.S. at 321, 106 S.Ct. at 1085 (citing Johnson, 481 F.2d at 1033). "But when prison officials use force to cause harm maliciously and sadistically, `contemporary standards of decency are always violated. . . . This is true whether or not significant injury is evident.'" Wright, 554 F.3d at 268-69 (quoting Hudson, 503 U.S. at 9, 112 S Ct. at 1000).
That is not to say that "every malevolent touch by a prison guard gives rise to a federal cause of action." Griffen, 193 F.3d at 91 (citing Romano v. Howarth, 998 F.2d 101, 105 (2d Cir.1993)); see also Johnson, 481 F.2d at 1033 ("Not every push or shove, even if it later may seem unnecessary in the peace of a judge's chambers, violates a prisoner's constitutional rights"). Where a prisoner's allegations and evidentiary proffers, if credited, could reasonably allow a rational factfinder to find that corrections officers used force maliciously and sadistically, however, summary judgment dismissing an excessive use of force claim is inappropriate. Wright, 554 F.3d at 269 (citing Scott v. Coughlin, 344 F.3d 282, 291 (2d Cir.2003) (reversing summary dismissal of prisoner's complaint, though suggesting that prisoner's evidence of an Eighth Amendment violation was "thin" as to his claim that a corrections officer struck him in the head, neck, shoulder, wrist, abdomen, and groin, where the "medical records after the . . . incident with [that officer] indicated only a slight injury")) (other citations omitted).
Without question, the evidentiary support for plaintiffs claim is far from overwhelming. Plaintiffs assertions are sharply contradicted by defendant MacWilliams who, in a sworn affidavit filed with the court, denies punching or striking Cicio. MacWilliams Aff. (Dkt. No. 35-9) ¶ 13. Each of the co-defendants participating in the removal of the plaintiff from his cell state that they did not see MacWilliams punch or hit him. Additional evidence tending to contradict plaintiffs allegations includes the fact that it took two minutes or less for the corrections officers to perform the cell extraction and the reports of medical examinations conducted of the plaintiff shortly after the incident as well as the photographs of plaintiffs face, both revealing that he sustained only a slight bruise, see Gill Aff. (Dkt. No. 35-4) Exh. B (Dkt. No. 35-6), an injury that would also be fully consistent with what would be expected to result when corrections officers must take a resisting inmate to the floor for the purpose of administering arm and leg restraints.
In addition to asserting that defendant MacWilliams beat him excessively, plaintiff alleges that the various other defendants observed the incident but stood by without intervening on his behalf.
A corrections worker who, though not participating, is present while an assault upon an inmate occurs may nonetheless bear responsibility for any resulting constitutional deprivation. See Anderson v. Branen, 17 F.3d 552, 557 (2d Cir.1994). It is well-established that a law enforcement official has an affirmative duty to intervene on behalf of an individual whose constitutional rights are being violated in his presence by other officers. See Mowry v. Noone, No. 02-CV-6257 Fe, 2004 WL 2202645, at *4 (W.D.N.Y. Sept.30, 2004); see also Curley v. Village of Suffern, 268 F.3d 65, 72 (2d Cir.2001) ("Failure to intercede results in [section 1983] liability where an officer observes excessive force being used or has reason to know that it will be.") (citations omitted).
To the extent that damages are sought against them in their official capacities, defendants' motion also seeks dismissal of those claims on the basis of the protection afforded under of the Eleventh Amendment.
The Eleventh Amendment protects a state against suits brought in federal court by citizens of that state, regardless of the nature of the relief sought. Alabama v. Pugh, 438 U.S. 781, 782, 98 S.Ct. 3057, 3057-58, 57 L.Ed.2d 1114 (1978). This absolute immunity which states enjoy under the Eleventh Amendment extends both to state agencies, and to state officials sued for damages in their official capacities when the essence of the claim involved seeks recovery from the state as the real party in interest. Richards v. State of New York Appellate Division, Second Dep't, 597 F.Supp. 689, 691 (E.D.N.Y.1984) (citing Pugh and Cory v. White, 457 U.S. 85, 89-91, 102 S.Ct. 2325, 2328-29, 72 L.Ed.2d 694 (1982)). To the extent that a state official is sued for damages in his official capacity the official is entitled to invoke the Eleventh Amendment immunity belonging to the state. Kentucky v. Graham, 473 U.S. 159, 166-67, 105 S.Ct. 3099, 3105, 87 L.Ed.2d 114 (1985); Hafer v. Melo, 502 U.S. 21, 25, 112 S.Ct. 358, 361, 116 L.Ed.2d 301 (1991).
It is unclear from plaintiffs complaint whether he has sued defendants in their individual or official capacities, or both. Insofar as plaintiffs damage claims against the defendants are brought against them in their official government-employee capacity they are the equivalent of claims against the State of New York, and they are subject to dismissal under the Eleventh Amendment state-employee exception. Daisernia v. State of New York, 582 F.Supp. 792, 798-99 (N.D.N.Y.1984) (McCurn, J.). I, therefore, recommend dismissal of plaintiffs damage claims against the defendants in their official capacities.
In their motion defendants also rely on the doctrine of qualified immunity, arguing that because their actions were reasonable under the circumstances they are immune from suit and plaintiffs complaint should be dismissed.
Qualified immunity shields government officials performing discretionary functions from liability for damages "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982) (citations omitted). "In assessing an officer's eligibility for the shield, `the appropriate question is the objective inquiry whether a reasonable officer could have believed that [his or her actions were] lawful, in light of clearly established law and the information the officer[ ] possessed." Kelsey v. County of Schoharie, 567 F.3d 54, 61 (2d Cir.2009) (quoting Wilson v. Layne, 526 U.S. 603, 615, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999)). The law of qualified immunity seeks to strike a balance between the need to hold government officials accountable for irresponsible conduct and the need to protect them from "harassment, distraction, and liability when they perform their duties reasonably." Pearson v. Callahan, 555 U.S. ___, 129 S.Ct. 808, 815, 172 L.Ed.2d 565 (2009).
For courts engaging in a qualified immunity analysis, "the question after Pearson is `which of the two prongs . . . should be addressed in light of the circumstances in the particular case at hand.' "Okin, 577 F.3d 430 n. 9 (quoting Pearson). "The [Saucier two-step] inquiry is said to be appropriate in those cases where `discussion of why the relevant facts do not violate clearly established law may make it apparent that in fact the relevant facts do not make out a constitutional violation at all.' "Kelsey, 567 F.3d at 61 (quoting Pearson, 129 S.Ct. at 818).
"The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Saucier, 533 U.S. at 202, 121 S.Ct. at 2156 (citation omitted). When deciding whether a right was clearly established at the relevant time, a court should consider
Undeniably, the right of a prison inmate to be free from excessive use of force has long been established. Russo v. City of Bridgeport, 479 F.3d 196, 212 (2d Cir.), cert. denied, 552 U.S. 818, 128 S.Ct. 109, 169 L.Ed.2d 24 (2007). Since I have already determined that, if credited, plaintiffs testimony could support a jury finding that defendants acted intentionally to harm him, it follows that a rational trier of fact could also conclude that defendants' conduct was not objectively reasonable under the circumstances. See id.; see also Dallio v. Santamore, No. 9:06-CV-1154, 2010 WL 125774, at *14 (N.D.N.Y. Jan.7, 2010) (Suddaby, J. and Homer, M.J.) ("As to [plaintiffs] excessive force and failure to intervene claims, it was clearly established by the incident on November 10, 2003 that inmates had an Eighth Amendment right to be free from excessive force and a failure to intervene. Thus, accepting all of [plaintiffs] allegations about the incident as true, qualified immunity cannot be granted . . . since a reasonable person in their position at the time would or should have known that the use of excessive force was a constitutional violation."). As a result, I have determined that material questions of fact exist on the issue of whether defendants are entitled to qualified immunity from suit and therefore recommend that this portion of defendants' motion also be denied.
Given the circumstances leading up to the forcible extraction of Cicio from his cell, it is doubtful that he will be viewed by a jury as a particularly sympathetic plaintiff. Plaintiff placed his own safety as well as that of others in jeopardy by refusing a lawful order to exit his cell, admittedly knowing that his actions would result in the use of force to remove him. Plaintiffs refusal to obey prison officials' commands, however, though plainly indefensible, did not provide corrections officers with a license to exact retribution by needlessly punching him after he was subdued and no longer resisting, as he has alleged. Whether Officer MacWilliams did, in fact, needlessly punch the plaintiff raises a question of credibility given the conflicting accounts now before the court. I am therefore compelled to conclude that the existence material questions of fact preclude the court from granting defendants' motion for summary judgment with respect to plaintiffs excessive use of force and failure to intervene claims and on the issue of qualified immunity. Because defendants are immune from suit in their official capacities, however, and plaintiff has adduced no evidence that defendant Woods was personally involved in the offending conduct, defendants' motion dismissing plaintiffs damage claims against them in their official capacities and all claims against defendant Woods should be granted. Accordingly, it is hereby respectfully
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court within FOURTEEN days of service of this report. FAILURE TO SO OBJECT TO THIS REPORT WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir.1993).
It is hereby ORDERED that the clerk of the court serve a copy of this report and recommendation upon the parties in accordance with this court's local rules.
Carlos Peterson, Dannemora, NY, pro se.
Hon. Gordon J. Cuffy, Onondaga County Attorney, Karen Ann Bleskoski, Esq., Assistant County Attorney, of Counsel, Syracuse, NY, for Defendant.
DAVID E. PEEBLES, United States Magistrate Judge.
Currently pending before the court is defendant's motion for summary judgment seeking dismissal of plaintiffs complaint on the grounds that 1) plaintiffs claims are subject to dismissal for failure to exhaust available administrative remedies, 2) the undisputed facts demonstrate that plaintiff cannot establish a viable Eighth Amendment claim, and 3) in any event, he is entitled to qualified immunity from suit. Having carefully considered the record before the court, I recommend that defendant's motion be granted, and that judgment be entered in his favor.
The events giving rise to the claims in this action occurred while the plaintiff was housed at the OCJC, where he was held from May 4, 2008 until his transfer to a New York State correctional facility on September 23, 2008. Defendant's Rule 7.1(a)(3) Statement (Dkt. No. 25-6) ¶ 5.
At approximately 4:52 p.m. on that date Deputy Johnson heard a loud crash coming from the left side of his desk. Johnson Aff. (Dkt. No. 25-3) at ¶ 3; Defendant's Local Rule 7.1(a)(3) Statement (Dkt. No. 25-6) ¶ 8. Quickly approaching the area, the defendant observed several prisoners crowded around inmate Timothy Green's cell. Johnson Aff. (Dkt. No. 25-3) at ¶ 4. Upon Deputy Johnson's arrival, the other inmates dispersed, and he saw inmates Green and Peterson in Green's cell, where Green had Peterson pinned down on his bunk. Id.; Defendant's Local Rule 7.1(a)(3) Statement (Dkt. No. 25-6) ¶ 9. In accordance with his training, defendant directed all other inmates in the pod to lock in to their cells and, using his portable radio, signaled called a code orange, indicating an emergency situation of inmates fighting and activating the Sheriffs Emergency Response Team ("SERT"). Johnson Aff. (Dkt. No. 25-3) ¶ 5; Defendant's Local Rule 7.1(a)(3) Statement (Dkt. No. 25-6) IT 13.
The other inmates in the pod locked in to their cells, as instructed, and plaintiff and Green ceased fighting. Johnson Aff. (Dkt. No. 25-3) ¶ 4. Following defendant's order that he do so, Green backed off from Peterson and released him. Id. Green and Peterson remained nose-to-nose, however, yelling at each other, and Deputy Johnson observed that the toilet in the cell had been smashed. Id.; Defendant's Rule 7.1(a)(3) Statement (Dkt. No. 25-6) ¶¶ 10, 11. The officer ordered Peterson to lock in to his own cell; plaintiff failed to comply with that directive, however, and continued screaming at Green. Johnson Afd. (Dkt. No. 25-3) ¶ 4; Defendant's Local Rule 7.1(a)(3) Statement (Dkt. No. 25-6) ¶ 13. Green then punched the plaintiff, causing him to fall to the ground, where Green continued to beat Peterson. Johnson Aff. (Dkt. No. 25-3) ¶ 4 and Defendant's Exh. E (Dkt. No. 25-11); Defendant's Local Rule 7.1(a)(3) Statement (Dkt. No. 25-6) ¶ 12. By the time the SERT deputies responded between 4:55 and 5:00 p.m. the altercation had ended, and plaintiff was returning to his cell while Green remained in his cell. Johnson Aff. (Dkt. No. 25-3) ¶ 6.
Following the May 21, 2008 incident, both Peterson and inmate Green were issued misbehavior reports for fighting and Green was also charged with disobeying an order; pending their respective disciplinary hearings, both inmates were moved to special housing/administrative segregation and ordered to have no contract with each other. Defendant's Local Rule 7.1(a)(3) Statement (Dkt. No. 25-6) ¶¶ 15, 19-20, 22. At their respective disciplinary hearings, though giving varying accounts of how the fight began, both inmates admitted guilt and were issued sanctions. Id. at ¶¶ 20-23. At no time before commencing this lawsuit did plaintiff report or complain that the defendant had been harassing, annoying, or harming him, or that he had orchestrated the altercation between Green and Peterson, as he now contends. Id. at ¶¶ 25-26.
Plaintiff commenced this civil rights action on January 8, 2010, naming only the OCJC as a defendant and alleging that while incarcerated there "he was assaulted by another inmate due to lack [of] poor supervision from Correctional Officer." Dkt. No. 1. By decision and order filed January 13, 2010, Senior District Judge Frederick J. Scullin substituted Onondaga County as the named defendant for the OCJC and directed plaintiff to submit an amended complaint.
Dkt. No. 27.
By decision and order filed January 14, 2011 ("January Order"), the court denied plaintiffs motion to compel, stating:
January Order (Dkt. No. 28). Plaintiff subsequently filed a motion for reconsideration of the January order, which defendant opposed. Dkt. Nos. 29 and 30. Noting that "[o]ther than his insistence that the videotape must exist because a camera was running during the alleged event, plaintiff offer [ed] nothing to overcome defendant's [sworn] statement that a videotape does not, and never did, exist", the court denied plaintiffs motion for reconsideration. Dkt. No. 32.
In support of his current motion for summary judgment, defendant argues that he is entitled to judgment as a matter of law because 1) procedurally, plaintiff failed to exhaust his administrative remedies, 2) on the merits, plaintiff has failed to state a claim under the Eighth Amendment, and 3) in any event, he is protected from liability on plaintiffs claims against him by the doctrine of qualified immunity. In response to defendant's motion plaintiff has submitted only an unsworn letter succinctly outlining the basis for his opposition to the motion. Dkt. No. 26.
Summary judgment motions are governed by Rule 56 of the Federal Rules of Civil Procedure. Under that provision, summary judgment is warranted when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986); Security Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 82-83 (2d Cir.2004). A fact is "material", for purposes of this inquiry, if it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248, 106 S.Ct. at 2510; see also Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir.2005) (citing Anderson). A material fact is genuinely in dispute "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248, 106 S.Ct. at 2510.
A moving party seeking summary judgment bears an initial burden of demonstrating that there is no genuine dispute of material fact to be decided with respect to any essential element of the claim in issue; the failure to meet this burden warrants denial of the motion. Anderson, 477 U.S. at 250 n. 4, 106 S.Ct. at 2511 n. 4; Security Ins., 391 F.3d at 83. In the event this initial burden is met, the opposing party must show, through affidavits or otherwise, that there is a material issue of fact for trial. Fed.R.Civ.P. 56(e); Celotex, 477 U.S. at 324, 106 S.Ct. at 2553; Anderson, 477 U.S. at 250, 106 S.Ct. at 2511. Though pro se plaintiffs are entitled to special latitude when defending against summary judgment motions, they must establish more than mere "metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); but see Vital v. Interfaith Med. Ctr., 168 F.3d 615, 620-21 (2d Cir.1999) (noting obligation of court to consider whether pro se plaintiff understood nature of summary judgment process).
When deciding a summary judgment motion, a court must resolve any ambiguities, and draw all inferences from the facts, in a light most favorable to the nonmoving party. Jeffreys, 426 F.3d at 553; Wright v. Coughlin, 132 F.3d 133, 137-38 (2d Cir.1998). Summary judgment is warranted only in the event of a finding that no reasonable trier of fact could rule in favor of the non-moving party. See Building Trades Employers' Educ. Ass'n v. McGowan, 311 F.3d 501, 507-08 (2d Cir.2002) (citation omitted); see also Anderson, 477 U.S. at 250, 106 S.Ct. at 2511 (summary judgment is appropriate only when "there can be but one reasonable conclusion as to the verdict").
The consequences of this failure are potentially significant. By its terms, Local Rule 7.1(a)(3) provides that "[t]he Court shall deem admitted any facts set forth in the Statement of Material Facts that the opposing party does not specifically controvert."
Undeniably, pro se plaintiffs are entitled to some measure of forbearance when defending against summary judgment motions. See Jemzura v. Public Serv. Comm'n, 961 F.Supp. 406, 415 (N.D.N.Y.1997) (McAvoy, C.J.). The deference owed to pro se litigants, however, does not extend to relieving them of the ramifications associated with the local rules. See Robinson v. Delgado, No. 96-CV-169, 1998 WL 278264, at *2 (N.D.N.Y. May 22, 1998) (Pooler, J. & Hurd, M.J.); Cotto v. Senkowski, No. 95-CV-1733, 1997 WL 665551, at *1 (N.D.N.Y. Oct. 23, 1997) (Pooler, J. & Hurd, M.J.); Wilmer v. Torian, 980 F.Supp. 106, 106-07 (N.D.N.Y.1997) (Pooler, J. & Hurd, M.J.). Thus, "a pro se litigant is not relieved of the duty to meet the requirements necessary to defeat a motion for summary judgment." Latouche v. Tompkins, No. 9:09-CV-308, 2011 WL 11003045, at *1 (N.D.N.Y. Mar. 23, 2011) (Mordue, C.J.) (citing Nealy v. U.S. Surgical Corp., 587 F.Supp.2d 579, 583 (S.D.N.Y.2008) and Jorgensen v. Epic/Sony Records, 351 F.3d 46, 50 (2d Cir.2003)). Where a plaintiff has been specifically notified of the consequences of failing to respond to a movant's Rule 7.1(a)(3) Statement but has failed to do so, and the facts contained within that statement are supported by the evidence in the record, the court will accept such facts as true. Id. (citing Littman v. Senkowski, 2008 WL 420011, at *2 (N.D.N. Y.2008) (citing Champion v. Artuz, 76 F.3d 483, 486 (2d Cir.1996)).
In defendant's notice of motion plaintiff was specifically warned of the consequences of his failure to properly respond to defendant's Local Rule 7.1(a)(3) Statement.
In view of the foregoing, I recommend that, despite plaintiffs pro se status, the court accept defendant's assertion of facts as set forth in his Local Rule 7.1(a)(3) Statement as uncontroverted when reviewing the pending motion for facial sufficiency.
The record now before the court firmly establishes that while he apparently is familiar with the available grievance process, having filed an unrelated grievance two weeks later on June 5, 2008, plaintiff never filed a grievance complaining of the misconduct that he alleges in his complaint occurred on May 21, 2008. See e.g. Ferguson Aff. (Dkt. No. 25-2) ¶ 10. In support of his motion for summary judgment defendant asserts that plaintiffs claims are therefore procedurally barred based upon his failure to exhaust available administrative remedies.
With an eye toward "reduc[ing] the quantity and improv[ing] the quality of prisoner suits[,]" Porter v. Nussle, 534 U.S. 516, 524, 122 S.Ct. 983, 988, 152 L.Ed.2d 12 (2002), Congress altered the inmate litigation landscape considerably through the enactment of the Prison Litigation Reform Act of 1996 ("PLRA"), Pub.L. No. 104-134, 110 Stat. 1321 (1996), imposing several restrictions on the ability of prisoners to maintain federal civil rights actions. An integral feature of the PLRA is a revitalized exhaustion of remedies provision which requires that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a); see Woodford v. Ngo, 548 U.S. 81, 84, 126 S.Ct. 2378, 2382, 165 L.Ed.2d 368 (2006); Hargrove v. Riley, No. CV-04-4587, 2007 WL 389003, at *5-6 (E.D.N.Y. Jan.31, 2007). This limitation is intended to serve the dual purpose of affording "prison officials an opportunity to resolve disputes concerning the exercise of their responsibilities before being haled into courtl[,]" and to improve the quality of inmate suits filed through the production of a "useful administrative record." Jones v. Bock, 549 U.S. 199, 127 S.Ct. 910, 914-15, 166 L.Ed.2d 798 (2007) (citations omitted); see Woodford, 548 U.S. at 91-92, 126 S.Ct. at 2386; see also Johnson v. Testman, 380 F.3d 691, 697 (2d Cir.2004). "[T]he PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter, 534 U.S. at 532, 122 S.Ct. at 992 (citation omitted).
In the event a defendant named in such an action establishes that the inmate plaintiff failed properly to exhaust available remedies prior to commencing the action, his or her complaint is subject to dismissal. See Pettus v. McCoy, No. 04-CV-0471, 2006 WL 2639369, at *1 (N.D.N.Y. Sept. 13, 2006) (McAvoy, J.); see also Woodford, 548 U.S. at 94-95, 126 S.Ct. at 2387-88 (holding that the PLRA requires "proper exhaustion" of available remedies). "Proper exhaustion" requires a plaintiff to procedurally exhaust his or her claims by "compl[ying] with the system's critical procedural rules." Woodford, 548 U.S. at 95, 126 S.Ct. at 2388; see also Macias v. Zenk, 495 F.3d 37, 43 (2d Cir.2007) (citing Woodford). While placing prison officials on notice of a grievance through less formal channels may constitute claim exhaustion "in a substantive sense", an inmate plaintiff nonetheless must meet the procedural requirement of exhausting his or her available administrative remedies within the appropriate grievance construct in order to satisfy the PLRA. Macias, 495 F.3d at 43 (quoting Johnson, 380 F.3d at 697-98) (emphasis omitted).
New York requires that every local correctional facility establish, implement, and maintain a formal inmate grievance program. 9 N.Y.C.R.R. § 7032.1. Defendant has shown that in accordance with this requirement the Onondaga County Sheriffs Office maintains a written directive, procedure and program for inmate grievances at the OCJC. Defendant's Local Rule 7.1(a)(3) Statement (Dkt. No. 25-6) ¶ 1; see also Ferguson Aff. (Dkt. No. 25-2) ¶¶ 4-5 and Defendant's Exhs. A, B, and D (Dkt. Nos. 25-7, 25-8 and 25-9). Upon his or her admission at the OCJC each inmate is provided a copy of the inmate handbook, which is written in both English and Spanish and explains the manner in which the OCJC is operated as well as the rules and regulations governing inmates, including the procedure for filing a grievance and for pursuing complaints regarding staff harassment. Defendant's Rule 7.1(a)(3) Statement (Dkt. No. 25-6) ¶ 2. The applicable Onondaga County Sheriffs Office directive classifies inmate grievances into two categories— informal and formal.
Formal grievances are subject to a five-step procedure.
In light of the foregoing, I conclude that the record before the court unequivocally establishes not only that plaintiff failed to exhaust his administrative remedies, but that there is no basis to excuse his failure. I therefore recommend that defendant's motion for summary judgment dismissing plaintiffs complaint on this procedural basis be granted.
The only claims alleged in the complaint in this action are that Deputy Johnson mentally harassed plaintiff daily and that he stood by and watched while inmate Green attacked Peterson. Though plaintiffs submissions make no reference to defendant's violation of a specific constitutional or statutory provision, liberally construed it appears that plaintiffs claim may be asserted under the Eighth and/or Fourteenth Amendments.
In view of these well-established principles, it is clear that plaintiff cannot base a constitutional claim on mere verbal harassment, and I therefore recommend granting defendant's motion as it relates to those claims alleged in plaintiffs complaint.
Turning to plaintiffs claim that defendant failed to protect him from inmate Green's attack, it is indisputable that prison officials are required to take reasonable measures to guarantee the safety of inmates; this duty includes within it an obligation to protect prisoners from for seen harm caused by fellow inmates. Farmer v. Brennan, 511 U.S. 825, 833-34, 114 S.Ct. 1970, 1976-77, 128 L.Ed.2d 811 (1994) (citations omitted); see also Matthews v. Armitage, 36 F.Supp.2d 121, 124 (N.D.N.Y.1999) (Homer, M.J.) (citing, inter alia, Farmer). When examining a failure to protect claim a court must determine whether the inmate has demonstrated that 1) he or she was incarcerated under conditions posing a substantial risk of serious harm, and that 2) prison officials exhibited deliberate indifference to the inmate's plight. Farmer, 511 U.S. at 834, 837, 114 S.Ct. at 1977, 1979; Matthews, 36 F.Supp.2d at 124-25; Coronado v. Lefevre, 886 F.Supp. 220, 224 (N.D.N.Y.1995) (Scullin, J.). As can be seen, this analysis entails both an objective and subjective inquiry.
To demonstrate that a defendant was deliberately indifferent to his or her plight, a plaintiff must show that the prison official actually knew of, but disregarded, an excessive risk to his or her health and safety; "the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer, 511 U.S. at 837, 114 S.Ct. at 1979; Matthews, 36 F.Supp.2d at 124-25.
As a presumed pretrial detainee, plaintiffs conditions of confinement were subject to safeguards emanating from the Due Process Clause of the Fourteenth Amendment, rather than the Eighth Amendment, which governs such claims brought by inmates serving prison sentences. Benjamin v. Fraser, 343 F.3d 35, 49-50 (2d Cir.2003). In Benjamin, the Second Circuit acknowledged the government's duty to assume responsibility for the safety, general well-being, and basic human needs of those whose liberty it involuntarily restrains, and specifically distinguished between the circumstances presented by a pretrial detainee, who is still presumed innocent, and an inmate who has been convicted of a crime. Id. at 50-51. Following Benjamin, however, there was significant uncertainty surrounding the precise standard to be applied to claims of deliberate indifference brought by pretrial detainees. While it was clear that such claims were subject to analysis under the Due Process Clause of the Fourteenth Amendment, Bryant v. Maffucci, 923 979, 983 (2d Cir.1991), the precise contours of the obligation imposed thereunder had not been definitively established by the Second Circuit until its recent decision in Caiozzo v. Koreman, 581 F.3d 63.
In Caiozzo, the Second Circuit found that "it is a logical extension of the principles recognized in Farmer that an injured state pretrial detainee, to establish a violation of his Fourteenth Amendment due process rights, must prove, inter alia, that the government-employed defendant disregarded a risk of harm to the plaintiff of which the defendant was aware." Id. at 71. (citing Farmer, 511 U.S. at 837, 114 S.Ct. 1970, 128 L.Ed.2d 811). Accordingly, the court held that "[c]laims for deliberate indifference to a serious medical condition or other serious threat to the health or safety of a person in custody should be analyzed under the same standard irrespective of whether they are brought under the Eighth or Fourteenth Amendment." Id. at 72. In the wake of Caiozzo, it thus appears that the standard for analyzing a failure to protect claim under the Fourteenth Amendment is identical to that under the Eighth Amendment. See Cory v. Carr, No. 9:08-CV-46, 2010 WL 396363, at * 8 n. 9 (N.D.N.Y. Jan.26, 2010) (Kahn, J. & DiBianco, M.J.) (citing Caiozzo and finding that the Eighth Amendment standard applied to a pretrial detainee's failure to protect claim brought under the Fourteenth Amendment).
There is no dispute that the altercation between the plaintiff and Green took place in Green's cell, and Peterson has provided no explanation as to why he was in that cell, seemingly undermining his allegation that the attack was prearranged and that Green was the aggressor. Following the incident, Green and Peterson gave divergent accounts of how it began. While Peterson admitted to being involved in the altercation, he claimed that he thought Green was kidding when he struck him. Joslyn Aff. (Dkt. No. 25-4) ¶ 5; see also Paninski Aff. (Dkt. No. 25-2) ¶ 7. Green, on the other hand, indicated that plaintiff had been agitating him and willingly accepted his challenge to enter his cell. Joslyn Aff. (Dkt. No. 25-4) ¶ 5.
In any event, the evidence in the record establishes that the defendant did not know Green or Peterson before they were placed on pod 4B and that he had no relationship with Green other than that of deputy to an inmate. Contrary to plaintiffs unsupported allegations, upon hearing and then observing the fight, the record discloses that defendant immediately responded as he was trained, calling for assistance and directing both inmates to cease. While neither Green nor the plaintiff immediately followed defendant's initial order, Green ended his assault of inmate Peterson within no more than a few minutes, and Peterson was escorted from Green's cell with what appear to be relatively minor injuries.
In sum, the record is devoid of any evidence showing, objectively or subjectively, that defendant Johnson subjected the plaintiff to a substantial risk of serious harm and exhibited deliberate indifference to plaintiffs safety. Accordingly, I recommend a finding that, based upon the record before the court, no reasonable factfinder could find in plaintiffs favor on his failure to protect claim.
Plaintiffs complaint arises out of an altercation occurring between him and another inmate during his confinement at the OCJC. While plaintiff alleges that defendant Johnson continually harassed him and arranged for inmate Green to attack him, plaintiff never complained of, reported, or filed a grievance alleging such misconduct prior to commencement of this lawsuit. For this reason alone, plaintiffs complaint is subject to dismissal based upon his undisputed failure to exhaust administrative remedies. Turning to the merits, plaintiffs claims of verbal harassment are patently insufficient to establish a constitutional violation, and the record is barren of any evidence that could potentially lead a reasonable juror to conclude that defendant failed to protect plaintiff from an excessive risk of harm.
RECOMMENDED that defendant's motion for summary judgment (Dkt. No. 25) be GRANTED, and that judgment be entered in favor of defendant DISMISSING plaintiffs complaint in its entirety.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections must be filed with the clerk of the court within FOURTEEN days of service of this report. FAILURE TO SO OBJECT TO THIS REPORT WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir.1993).
It is hereby ORDERED that the clerk of the court serve a copy of this report and recommendation upon the parties in accordance with this court's local rules.
ELLIS, Magistrate J.
The following account is based on Desulma's complaint and deposition testimony. The events which give rise to this cause of action occurred on December 27, 1996, when Desulma was incarcerated in the Adolescent Detention and Reception Center ("ADRC") at Rikers Island Compl. ¶ 8. At midday, Desulma and approximately fifty other inmates from his housing unit were escorted in a line to the mess hall by officers Goolsby and an unidentified officer, "Jane Doe." Id. ¶ 9; Tr. at 83. Two inmates standing near Desulma in the line began "menacing" him by making unspecified threats and racial insinuations. Tr. at 58-59, 75-77. Desulma testified that officer Goolsby witnessed these threats. Tr. at 63, 79-80. Desulma requested protection, but Goolsby told him to defend himself. Tr. at 81.
During the meal, Desulma sat away from the inmates who bothered him. Tr. at 85. After the meal, as the group was preparing to leave the mess hall, Desulma attempted to ask Goolsby for protective measures against these inmates, whom he feared. Tr. at 134, 138. Although he did not find Goolsby, Desulma succeeded in speaking to Doe. Id. at 133-35. Desulma claims that Doe ignored his request for protective measures and instructed him to get into the line. Tr. at 134-135.
The inmates who had earlier threatened Desulma were again standing near him in line. Id. at 138. They began to "bother" Desulma, telling him that he "smell [ed]." Tr. at 141. Desulma later submitted changes to his deposition in which he claims the inmates said, "kill this negro, get you, we are going to get you stinky." Tr. Ch. 6.
Desulma called for help during the attack, but the escorting officers did not intervene. Id. at 145. As Desulma attempted to run away from his attackers, he fell onto the floor near Doe's feet. Id. Desulma alleges that no correctional officer sought medical assistance until he "fell to the floor in a pool of blood," Compl. ¶ 18, at which point Doe called for emergency assistance over her radio transmitter. Id. at ¶ 21. Desulma originally testified that Goolsby was not on the scene until Doe called for help, Tr. at 134, 138, 149, but later asserted that he had seen Goolsby "a few seconds" before and after the incident. Tr. Ch. at 6.
Desulma filed the instant complaint on January 5, 1998, against the City of New York and correctional officers Goolsby and Jane Doe, in their individual and official capacities, for failure to protect Desulma from other inmates during an incident at Riker's Island. He alleges violation of his Eighth and Fourteenth Amendment rights, see Compl. ¶ 32, and various tort violations under New York state law. Id. ¶ 34. Specifically, he alleges that Goolsby, "with deliberate indifference," failed to separate him from a group of inmates who had threatened him and "deliberately refused" to grant his request for protection. Id. ¶ 29-30.
At a status conference before Judge Shira A. Sheindlin on November 5, 1998, the complaint was dismissed with respect to all defendants except officer Goolsby. The ruling was confirmed in a written order issued by Judge Richard M. Berman on December 21, 1998. On December 3, 1998, Goolsby served an answer to the complaint, and discovery progressed as ordered. Desulma was deposed on April 23, 1999 and May 17, 1999.
In January 1999, Desulma requested that discovery materials be translated into Creole and that counsel be appointed to assist him. The Court denied those requests by order dated March 16, 1999. On October 13, 1999, after the close of discovery, Goolsby filed the present motion. Desulma requested and received an extension of time, until January 14, 2000, in which to respond to Goolsby's motion. On December 24, 1999, Desulma requested an audiotape recording of his deposition. See Glass Decl., Exh. C. In an Order dated February 25, 2000, the Court denied the request, as no tapes existed, but granted Desulma permission to submit corrections to his deposition transcripts by April 21, 2000. Id., Exh. D.
On April 20, 2000, Desulma filed, and served Goolsby with, fourteen pages of changes to the deposition. Id., Exh. A. Goolsby objected and, on June 1, 2000, moved to have the changes declared null and void for failure to comply with Rule 30(e) of the Federal Rules of Civil Procedure. Goolsby argued that the changes were "a deliberate attempt by plaintiff to tailor his testimony to defeat defendant's previously served summary judgment motion." See Glass Decl.
On June 19, 2000, the Court ordered Desulma to have his changes signed and sworn, to fully explain each change, and to respond to Goolsby's motion by July 19, 2000. Desulma responded on July 11, 2000, by submitting to the Court the same fourteen pages of deposition transcript changes he had originally filed, along with a sworn affidavit and a declaration of service. He did not, however, submit explanations for his changes or respond to Goolsby's motion. Instead, Desulma requested, and was granted, extensions of time in which to comply with the court's Order of June 19, 2000, and in which to respond to Goolsby's motion for summary judgment. Desulma filed his response on November 16, 2000. The case was referred to the undersigned on December 28, 2000, and the motion was fully submitted when Goolsby filed reply papers on January 5, 2001.
Relying primarily on the deposition transcript changes he filed, Desulma contends that officer Goolsby acted with deliberate indifference to his safety and well-being by disregarding his requests for protective measures and by failing to intervene in the attack. Pl. Resp. at 11, 19, 22, 25.
A court shall grant a motion for summary judgment if it determines that "there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Under this standard, summary judgment is proper if "viewing the record in the light most favorable to the nonmoving party, the evidence offered demonstrates that there is no genuine issue of fact and that the moving party is entitled to judgment as a matter of law." Pension Benefit Guar. Corp. v. LTV Corp., 875 F.2d 1008, 1015 (2d Cir.1989) (internal quotations omitted), rev'd on other grounds, 496 U.S. 633 (1990). In making this determination, the court does not resolve disputed factual issues, but reaches a conclusion as to whether there exists "a genuine and material issue for trial." Hudson Hotels Corp. v. Choice Hotels Int'l, 995 F.2d 1173, 1175 (2d Cir.1993). An issue of fact is "genuine" if it provides a basis for "a rational trier of fact to find for the non-moving party." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). If the record contains evidence which supports a reasonable inference in favor of the nonmoving party on the issues presented in the motion, summary judgment is not appropriate. See Knowles v. New York City Dept. of Corrections, 904 F.Supp. 217, 220 (S.D.N.Y.1995).
The moving party bears the initial burden of demonstrating the absence of any genuine issue of material fact. See Consarc Corp. v. Marine Midland Bank, N.A., 996 F.2d 568 (2d Cir.1993) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970)). This burden may be met by demonstrating that there is a lack of evidence to support the nonmoving party's claim. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). The nonmoving party must then set forth "specific facts showing that there is a genuine issue for a trial." Fed.R.Civ.P. 56(e); Celotex Corp., 477 U.S. at 321-22. A nonmoving party may not rely on conclusory allegations or conjecture to create disputed fact issues. Lipton v. Nature Co., 71 F.3d 464, 469 (2d cir.1995); Thomas v. Keane, 2001 WL 410095 (April 23, 2001). Even in cases involving pro se plaintiffs, where the court has an obligation to construe the plaintiffs papers liberally, Graham v. Lewinski, 848 F.2d 342, 344 (2d Cir.1988), these same standards for dismissal apply.
Thomas, 2001 WL 410095, at * 3 (citing Lee v. Artuz, 2000 WL 231083, at *2 (S.D.N.Y. Feb. 29, 2000)).
Desulma's submission of transcript changes include the following material changes to his initial testimony: (1) the two inmates who attacked him had harassed him the day before the incident, Tr. Ch. at 2; (2) he alerted Goolsby about the harassment the day before the incident, id.; (3) Goolsby was actually on the scene during the incident, Tr. Ch. at 6; (4) the two inmates threatened him with a knife when they verbally harassed him prior to the incident, Tr. Ch. at 4; (5) and the attackers said "kill this negro, get you, we are going to get you stinky," before attacking him. Tr. Ch. at 6.
Goolsby argues that the Desulma's changes should be rejected because they were tailored to oppose Goolsby's motion for summary judgment and do not comply with Rule 30(e). See Def. Rep. Desulma never submitted explanations as ordered by this Court on July 19, 2000, but maintains that the transcript changes were warranted because his interpreter had not translated his answers accurately. Pl. Resp. at 13. Although Rule 30(e) "does not require a judge to examine the sufficiency, reasonableness, or legitimacy of the reasons for the changes," Podell v. Citicorp Diners Club, Inc., 914 F.Supp. at 1035, a court is free to reject changes in extreme situations. See, e.g., Baker v. Ace Advertiser's Service, 134 F.R.D. 65 (S.D.N.Y.1991) (changes rejected where they were so far-reaching as to render the transcript a nullity). A court may reopen deposition if the changes to the transcript are made without adequate reasons, or if they are so substantial as to render the transcript incomplete or useless. See Hlinko v. Virgin Atlantic Airways, 1997 WL 68563, * 1 (citing Allen & Co. v. Occidental Petroleum Corp., 49 F.R.D. 337, 341 (S.D.N.Y.1970).
Here, although Desulma's changes are not so substantial as to render the transcript incomplete or useless, Desulma never submitted explanations for his changes as required by Rule 30(e) and as ordered by this Court on July 19, 2000. The explanation Desulma offers in his opposition papers to the instant motion (that his changes were made to correct the mistranslations of his Creole interpreter, see Pl. Resp. at 13) does not constitute "a statement reciting such changes and the reasons given by the deponent for making them." Fed.R.Civ.P. Rule 30(e). Furthermore, Desulma's explanation does not satisfy this Court's July 19, 2000 order instructing plaintiff to "fully explain each and every change made to the transcript." Desulma's changes are therefore unacceptable.
In order to maintain a claim under Section 1983, a plaintiff must allege that (1) the challenged conduct was attributable at least in part to a person who was acting under color of state law, and (2) the conduct deprived the plaintiff of a right guaranteed under the Constitution of the United States. Mendez v. Walker, 110 F.Supp.2d 209, 213 (citing Dwares v. City of New York, 985 F.2d 94, 98 (2d Cir.1993)). Desulma has properly alleged that Goolsby, as a correctional officer, was acting under color of state law and that her conduct resulted in a violation of his Eighth Amendment rights.
As a prerequisite to bringing suit, a plaintiff must also show a defendant's direct or personal involvement in the alleged Constitutional deprivation. Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.1995); Wright v. Smith, 21 F.3d 496, 501 (2d Cir.1994). Personal involvement may take one of four forms: (1) direct participation in the infractions; (2) failure of a supervisory official to remedy wrong after learning of violation; (3) creation or sanction by a supervisory official of policy or custom under which unconstitutional practices occur; or, (4) gross negligence in managing subordinates. Williams v. Smith, 781 F.2d 319, 323 (2d Cir.1986).
Goolsby maintains that she is not liable because she was not present at the time of the slashing. Def. Mem. at 16-17. In fact, the record does not establish Goolsby's location during the slashing. Desulma testified that he was unable to locate Goolsby as the inmates were leaving the mess hall, Tr. 134, and did not see her again until after the incident when Doe called for assistance. Tr. 138, 149. In his reply papers, Desulma claims he "was assaulted in [the] presence of the same two corrections officers, Goolsby and Doe ." Pl. Rep. at 22. And in his changes to the transcript, Desulma claims that he saw Gooslby "before and after" the slashing. Tr. Ch. at 6. Whether Desulma saw Goolsby is not dispositive. Goolsby may have been present even if Desulma did not see her. Defendant has not offered any evidence to suggest that she was not there. Moreover, Desulma need not prove Goolsby's presence at the scene to prevail on his claim that she was deliberately indifferent to a substantial risk of serious harm to him. Construing all pleadings and evidence in Desulma's favor, Goolsby's knowledge of the events leading up to the attack would be enough to establish personal involvement for the purposes of 42 U.S.C. § 1983.
To prevail in a failure-to-protect case, a prisoner must establish that (1) he is incarcerated under conditions posing a "substantial risk of serious harm," Farmer, 511 U.S. at 834 (citing Helling v. McKinney, 509 U.S. 25 (1993)), and that (2) the prison official acted with "deliberate indifference" to the prisoner's health or safety. Farmer, 511 U.S. at 828 (citing Helling, 509 U.S. 25; Wilson v. Seiter, 501 U.S. 294 (1991); Estelle v. Gamble, 429 U.S. 97 (1976)).
While the first part of the test is an objective determination about the severity of the conditions under which plaintiff is incarcerated, see Farmer, 511 U.S. at 834, the second part of the test invokes a subjective standard akin to criminal recklessness such that the defendant must "consciously disregard" a substantial risk of serious harm. Id. at 839-40. The official "has 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." Hayes, 84 F.3d at 620. The official must be aware of the risk or aware of facts from which the inference of risk could be drawn, and she must also draw the inference. Farmer, 511 U.S. at 837; Hemmings v. Gorczyk, 134 F.3d 104, 108 (2d Cir.1998) (quoting Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir.1996)).
Desulma does not succeed in showing that he was incarcerated under conditions posing a substantial risk of serious harm, a standard which "contemplates `a condition of urgency, one that may produce death, degeneration, or extreme pain," Hathaway, 37 F.3d at 66 (quoting Nance v. Kelly, 912 F.2d 605, 607 (2d Cir.1990) (Pratt, J., dissenting)), for two reasons. First, Desulma does not show that the risk he faced was substantial. Second, he fails to show that the risk to the extent that one existed was one of serious harm.
Desulma had no prior altercations with the inmates who attacked him. He testified that he had never complained about them or requested separation from them before, id. at 160; that he did not know his attackers at the time of the incident, Tr. 52; and that he only became "enemies" with them en route to the mess hall. Tr. at 60. Desulma later asserts, by changing "no" answers to "yes" answers in the deposition transcript, that he did have an altercation with the same inmates previously, Tr. Ch. 2-3, 8, and adds that he had previously asked Goolsby for protection from the inmates. Id. at 8-9. Desulma does not describe the prior altercation.
Desulma is also unable to show that Goolsby acted with the state of mind necessary to establish an Eighth Amendment violation. Desulma may properly rely on circumstantial evidence to prove Goolsby acted with the requisite mental state, because "[d]irect evidence that prison officials knew of and disregarded a serious risk of harm to a prison inmate will rarely be available," Matthews v. Armitage, 36 F.Supp. 121, 125 (N.D.N.Y.1999) (citing Coppage v. Mann, 906 F.Supp. 1025, 1036 (E.D.Va.1995)). The evidence he submits, however, fails to support the conclusion he argues before this Court. The record supports the conclusion that Goolsby was aware that Desulma feared his attackers because Desulma requested protective measures en route to the mess hall,
Goolsby's failure to intervene in the attack is not, by itself, a basis for liability. Although "[a] correctional officer's presence at an attack of an inmate, where he does nothing to stop an assault, may be sufficient to establish a claim under Section 1983," Dresdner v. Brockton (citing Morales v. New York State Department of Corrections, 842 F.2d 27 (2d Cir.1988)), an isolated omission to act by a state prison guard must be accompanied by evil intent, recklessness, or at least deliberate indifference to the consequences of the conduct. Bass v. Jackson, 790 F.2d 260, 262-63 (2d Cir.1986) (quoting Ayers v. Coughlin, 780 F.2d 205, 209 (2d Cir.1985); Williams v. Vincent, 508 F.2d 541, 546 (2d Cir.1974)). The defendant must also be shown to have had "an extended opportunity to stop the attack but failed to take any action to do so." Rucco v. Howard, 1993 WL 299296 (S.D.N.Y. Aug. 4, 1993) (citing Williams, 508 F.2d at 546).
Here, there is no evidence that Goolsby deliberately disregarded Desulma's safety or had an opportunity to intervene in the attack. The fact that Doe called for help and Goolsby appeared shortly thereafter suggests that both officers responded immediately to the attack. At most, Goolsby's failure to heed Desulma's initial request for protection was negligent, and negligence is not a sufficiently culpable mental state for liability to attach in a failure-to-protect cases. See Davidson v. Cannon, 474 U.S. 344 (1986); Hayes v. New York City Dept of Corrections, 84 F.3d 614, 620 (2d Cir.1996).
An official is entitled to qualified immunity "if reasonable officials could disagree regarding whether the actions at issue violated the Constitution." Def. Mem. at 14. However, summary judgment will be granted on the basis of qualified immunity only if "no reasonable jury, looking at the evidence in the light most favorable to, and drawing all inferences most favorable to, the plaintiff, could conclude that it was objectively reasonable for the defendant to believe that he was acting in a fashion that did not clearly violate an established federally protected right." Lennon v. Miller, 66 F.3d 416, 420 (2d Cir.1995) (quoting Robison v. Via, 821 F.2d 913, 921 (2d Cir.1987)). See also Williams v. Greifinger, 97 F.3d 699, 706 (2d Cir.1996); Noguera v. Hasty, 2000 WL 1011563,*18 (S.D.N.Y. July 21, 2000). Thus, "[i]f any reasonable trier of fact could find that the defendants' actions were objectively unreasonable, then the defendants are not entitled to summary judgment." Lennon, 66 F.3d at 420.
Goolsby argues that she and Doe acted in an objectively reasonable manner. Def. Mem. at 15. Based on the verbal harassment which preceded the attack, Goolsby argues, "reasonable correction officers at least could differ as to whether these comments alone were concrete enough to create a substantial risk of harm to plaintiff of imminent physical attack." Id. On summary judgment it is necessary to show that no reasonable trier of fact could find that the defendants' actions were objectively unreasonable. In this case, where the only notice of potential harm to Desulma was a request for protection and an incident of verbal harassment, Goolsby was, at most, merely negligent in failing to protect Desulma from the inmates who attacked him. She responded quickly to the attack, separating the inmates and transporting Desulma to the medical unit. On these facts, no reasonable jury could conclude that it was anything but objectively reasonable for Goolsby to believe her acts did not clearly violate an established federally protected right. She is therefore entitled to qualified immunity.
Because no genuine issue of material fact exists with respect to Desulma's claims, I respectfully recommend that defendant's motion for summary judgment be GRANTED.
Tyrone Rivers, Pine City, NY, pro se.
Hon. Andrew M. Cuomo, Attorney General for the State of New York, Adele Taylor Scott, Esq., Assistant Attorney General, of Counsel, Albany, NY, for Defendant.
On February 2, 2007, the date of the alleged incident, Plaintiff was housed at the Marcy Correctional Facility, which is a medium-security facility for inmates sentenced to fewer than seven years of incarceration or who are considered lower-level security threats. Def.'s 7.1 Statement at ¶ 2; Dkt. No. 49-2, Jeremy Spinella Decl., dated Mar. 17, 2010, at ¶ 3. Plaintiff was assigned to the D unit dormitory, which is divided into two areas by a wall with a door and a large window; the two areas are a sleeping room where inmates maintain their individual cubicles and a community area consisting of a day room, kitchen, and shared bathroom. Spinella Decl. at ¶¶ 6-7; Def.'s 7.1 Statement at ¶¶ 7-9. In order to maintain visual surveillance of both areas, a correctional officer's desk is located inside the sleeping area on an elevated platform in front of the window. Def.'s 7.1 Statement at ¶ 10. Correction Officer Spinella, the Defendant in this matter, was the stationed desk officer on duty on the day at issue. Id. at ¶ 6.
Both Plaintiff and Defendant agree that on February 2, 2007, a physical altercation occurred between Plaintiff and another inmate, Rivera, and, as a result, Plaintiff was hospitalized.
Pursuant to FED. R. CIV. P. 56(c)(2), summary judgment is appropriate only where "there is no genuine issue as to any material fact and . . . the movant is entitled to judgment as a matter of law." The moving party bears the burden to demonstrate through "pleadings, depositions, answers to interrogatories, and admissions on file, together with [] affidavits, if any," that there is no genuine issue of material fact. F.D.I.C. v. Giammettei, 34 F.3d 51, 54 (2d Cir.1994) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). "When a party has moved for summary judgment on the basis of asserted facts supported as required by [Federal Rule of Civil Procedure 56(e)] and has, in accordance with local court rules, served a concise statement of the material facts as to which it contends there exist no genuine issues to be tried, those facts will be deemed admitted unless properly controverted by the nonmoving party." Glazer v. Formica Corp., 964 F.2d 149, 154 (2d Cir.1992).
To defeat a motion for summary judgment, the nonmovant must "set out specific facts showing [that there is] a genuine issue for trial," and cannot rest "merely on allegations or denials" of the facts submitted by the movant. FED. R. CIV. P. 56(e)(2); see also Scott v. Coughlin, 344 F.3d 282, 287 (2d Cir.2003) ("Conclusory allegations or denials are ordinarily not sufficient to defeat a motion for summary judgment when the moving party has set out a documentary case."); Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d Cir.1994). To that end, sworn statements are "more than mere conclusory allegations subject to disregard . . . they are specific and detailed allegations of fact, made under penalty of perjury, and should be treated as evidence in deciding a summary judgment motion," and the credibility of such statements is better left to a trier of fact. Scott v. Coughlin, 344 F.3d at 289 (citing Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir.1983) and Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir.1995)).
Defendant Spinella raises the affirmative defense that Plaintiff failed to exhaust available administrative remedies. The Prisoner Litigation Reform Act of 1995, 42 U.S.C. § 1997(e)(a), states that "Ho action shall be brought with respect to prison conditions under [section 1983], or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." This exhaustion requirement "applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 532 (2002); see also Ziemba v. Wezner, 366 F.3d 161, 163 (2d Cir.2004).
DOCS has created a three-step administrative process to address inmate complaints, called the Inmate Grievance Program. See Abney v. McGinnis, 380 F.3d 663, 668 (2d Cir.2004); N.Y. COMP.CODES R. & REGS. tit. 7, Parts 701 & 702. First, the inmate must file a grievance complaint with the grievance clerk within twenty-one days of the incident. N.Y. COMP.CODES R. & REGS. tit. 7, § 701.5(a). The complaint is then submitted to the Inmate Grievance Resolution Committee ("IGRC") for review. Id. at § 701.5(b). Second, if the inmate is not satisfied with the IGRC decision, then the inmate may appeal to the prison superintendent by completing the appeal section of the IGRC response form and submitting it within seven days of receipt. Id. at § 701.5(c). Third, the inmate can appeal the superintendent's determination whereupon the Central Office Review Committee ("CORC") will make a final administrative determination. Id. at § 701.5(d). Upon the completion of all three steps, an inmate may "seek relief pursuant to 42 U.S.C. § 1983." Colon v. Harvey, 344 F.Supp.2d 896, 897 (W.D.N.Y.2004) (citing Neal v. Goord, 267 F.3d 116, 122 (2d Cir.2001) & Santos v. Hauck, 242 F.Supp.2d 257, 259 (W.D.N.Y.2003)).
Plaintiff's Complaint asserts only that Defendant Spinella failed to protect him from being attacked by Inmate Rivera, and thereby subjected him to cruel and unusual punishment in violation of the Eighth Amendment.
Plaintiff alleges that the altercation between Inmate Rivera and himself was preceded by verbal exchanges and hostile gestures in the kitchen and day room areas. See Compl. at pp. 1-8. Plaintiff also, on multiple occasions in both his Complaint and Response to Defendant's Statement Pursuant to Rule 7. 1, describes how Defendant Spinella was unaware of these exchanges. See Pl.'s 7.1 Statement at ¶ 16 ("Plaintiff was a victim of a sneakattack (attack without warning) by being struck with force from behind with a combination lock inserted into a sock (Plaintiff had no prior warning/opportunity to advise/ inform Officer Spinella that Plaintiff was in danger).") (emphasis in original); see also Compl. at pp. 3-4. Plaintiff alleges that the attack by Inmate Rivera was unexpected and unprovoked. Compl. at pp. 12-13; Pl.'s 7.1 Statement at ¶ 16. Plaintiff does not, however, allege that Officer Spinella had any information, notice, or reason to suspect or draw an inference that an altercation was about to break out that could produce a substantial risk of serious harm. In fact, Plaintiff explains that Officer Spinella was "alerted" to the altercation and jumped up from his chair only when Plaintiff, who was "able to hold on to inmate Rivera . . . pressed up against Officer Spinella's window." Compl. at p. 7; see also Spinella Decl. at ¶ 11 ("I was first alerted to the incident when I heard, and then observed through the window, plaintiff and another inmate engaged in a physical altercation."). Therefore, there are no specific facts, nor even allegations, that indicate the Defendant was aware that Plaintiff faced a substantial risk of serious harm until the altercation had already started. Furthermore, reading the Plaintiffs Complaint and pleadings liberally,
Compl. at p. 14.
Pl.'s 7.1 Statement at 12 (internal quotation marks omitted).
These allegations, without more, cannot be sustained against the Defendant's Motion for Summary Judgment. Plaintiff brings no specific facts establishing that Defendant failed to act after being alerted to the altercation. Rather, all evidence in the record before this Court is to the contrary: after alerted to the fight in progress, Defendant entered the day room immediately, ordered Inmate Rivera multiple times to stop, and called for help. Def.'s 7.1 Statement at ¶¶ 11-13; Spinella Decl. at ¶¶ 11-14. These facts are not controverted by the Plaintiff, nor could they be given Plaintiffs admission that he was rendered unconscious and lacked recollection of the incident. Plaintiff seems to claim that his injury alone means that the Defendant failed to adequately protect him in violation of the Eighth Amendment. While Inmate Rivera struck Plaintiff multiple times ignoring Defendant's repeated orders to stop and before fleeing to the bathroom, Spinella Decl. at ¶¶ 12-13; Pl.'s Mem. of Law in Opp'n to Def.'s Mot. Summ. J. at pp. 11-12, it "is not, however, every injury suffered by one prisoner at the hands of another that translates into constitutional liability for prison officials responsible for the victim's safety[,]" Farmer v. Brennan, 511 U.S. at 834; see also Allah v. Kemp, 2010 WL 1036802, at *4 (N.D.N.Y. Feb. 25, 2010) (quoting McGriff v. Coughlin, 640 F.Supp. 877, 880 (S.D.N.Y.1986) ("The Constitution does not guarantee an assault-free prison environment; it promises only reasonable good faith protection.")).
Plaintiff does not meet his burden at summary judgment to present specific facts showing there is a genuine issue for trial. Therefore, it is recommended that Defendant's Motion for Summary Judgment be
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen (14) days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court.
Calvin N. Gilmore, East Elmhurst, NY, pro se.
NYC Law Department, Office of the Corporation Counsel (N.Y.C), by: Linda Mindrutiu, Esq., New York, NY, for Defendants.
SWEET, District Judge.
The Complaint concerns an incident that allegedly occurred on August 2, 2013 at the Anna M. Kross Center ("AMKC") on Rikers Island, East Elmhurst. (Compl. ¶ II[D].) It alleges that "serial feces thrower" inmate Roger Thomas ("Thomas") threw feces into Plaintiffs "mouth, ear and eyes" when Reynolds opened up the slot to Thomas' cell during linen exchange. (Compl.¶ II[D].) Thomas threw feces out of the slot, some of which struck Plaintiff. (Id.) According to the Complaint, DOC knew that Thomas was a "feces thrower" and Reynolds and Rivera "failed to protect" Plaintiff from Thomas' conduct. (Id.) The Complaint alleges injuries of "sever apprehension of the contraction of HIV, Hepatitis A, Hepatitis B, burning and singing of the eyes, fear of losing eye sight, emotion[al] and psyc[h]ological damage." (Id. ¶¶ III.)
According to the Complaint, Plaintiff had previously filed for an administrative remedy for the denial of medical care. (Id. ¶ IV.) The claim was found to contain a "non-grievable" issue. (Id. ¶ IV[E][2].) Although it is not clear, it appears as if Plaintiff has not appealed the decision. ((Id. ¶ IV[E][3].)
The Complaint is unclear as to Plaintiffs specific claims. Construed liberally, Plaintiff seems to be alleging a "failure to protect" claim. See Pabon v. Wright, 459 F.3d 241, 248 (2d Cir.2006) (a pro se litigant's complaint is entitled to liberal interpretation). The Complaint has requested for $1 million in punitive damages, $500,000 in compensatory damages and $1 million for pain and suffering.
Plaintiff filed the Complaint on September 30, 2013. On December 31, 2013, Defendants filed the instant motion to dismiss. Briefing was submitted and the matter was marked fully submitted on February 26, 2014.
On a motion to dismiss pursuant to Rule 12(b)(6), all factual allegations in the complaint are accepted as true, and all inferences are drawn in favor of the pleader. Mills v. Polar Molecular Corp., 12 F.3d 1170, 1174 (2d Cir.1993). "`The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims. . . .' "Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir.1995) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)).
A pro se litigant's complaint is entitled to liberal interpretation and may be read as raising the strongest arguments that it suggests. Pabon, 459 F.3d at 248. Nevertheless, a pro se complaint must be dismissed if it fails to satisfy the plausibility standard set forth in Iqbal. Mancuso v. Hynes, 379 F. App'x 60, 61 (2d Cir.2010). Dismissal under Fed.R.Civ.P. (12)(b)(6) is also proper if an affirmative defense, or other bar to relief, is apparent from the face of the complaint. Mac Truong v. Tran Dinh Truong, No. 03 Civ. 3423(PKC), 2007 U.S. Dist. LEXIS 10973, at *19, 2007 WL 415152 (S.D.N.Y. Feb. 5, 2007) (citing Conopco, Inc. v. Roll Int'l, 231 F.3d 82, 86-87 (2d Cir.2000)).
The Complaint does not allege any specific claim, but construing it most liberally, Plaintiff has ostensibly made a failure to protect claim. The Second Circuit has held that a failure to protect claim may arise as a result of a "prison official's deliberate indifference to a substantial risk of serious harm to an inmate." Avincola v. Maldonado, No. 04-3529-pr, 2005 U.S.App. LEXIS 25423, at *3, 2005 WL 3116760 (2d Cir. Nov. 22, 2005) (quoting Farmer v. Brennan, 511 U.S. 825, 828, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (internal quotation marks omitted)). To successfully plead a failure to protect claim, a plaintiff must show that the deprivation is so sufficiently serious that it results in a denial of "the minimal civilized measure of life's necessities," Wilson v. Seiter, 501 U.S. 294, 298, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991) (citation omitted), and that the prison officials acted with a "sufficiently culpable state of mind." Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir.1996) (citation omitted); Farmer, 511 U.S. at 832 (prison officials must provide "humane conditions of confinement" and take "reasonable measures to guarantee the safety of the inmates.") (internal quotation marks and citation omitted)). Prison officials may neither deprive a prisoner of "basic human needs, e.g., food, clothing, shelter, medical care, and reasonable safety," nor expose an inmate to conditions that "pose an unreasonable risk of serious damage to his future health." Helling v. McKinney, 509 U.S. 25, 32, 35, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993) (citation omitted); see also Phelps v. Kapnolas, 308 F.3d 180, 185 (2d. Cir.2002); Sharriff v. Coombe, 655 F.Supp.2d 274, 297 (S.D.N.Y.2009). The deliberate indifference standard consists of both a subjective prong and an objective prong. See Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir.1994), cert. denied, 513 U.S. 1154, 115 S.Ct. 1108, 130 L.Ed.2d 1074 (1995); see also Buffaloe v. Fein, No. 12 Civ. 9469(GBD) (AJP), 2013 U.S. Dist. LEXIS 153840, at *11, 2013 WL 5815371 (S.D.N.Y. Oct. 24, 2013).
The "subjective element of deliberate indifference `entails something more than mere negligence . . . [but] something less than acts or omissions for the very purpose of causing harm or with knowledge that harm will result.'" see Hathaway, 99 F.3d at 553 (quoting Farmer, 511 U.S. at 835); see also Cole v. Fischer, No. 10-2548-pr, 2011 U.S.App. LEXIS 6182, at *2, 2011 WL 1086902 (2d Cir. Mar. 25, 2011) (equating the necessary state of mind to that of "criminal recklessness"); Whitfield v. O'Connell, 402 F. App'x 563, 565 (2d. Cir.2010) (same). To be found "sufficiently culpable," the prison official must "know[] of and disregard[] an excessive risk to inmate health and safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer, 511 U.S. at 834, 837; Ventura v. Sinha, 379 F. App'x 1, 3 (2d. Cir.2010).
Plaintiff has failed to demonstrate either the objective or subjective prongs of the deliberate indifference standard. For the objective prong, Plaintiff cannot establish that he was incarcerated under conditions posing a substantial risk of serious harm. A substantial risk of serious harm can be demonstrated where there is evidence of a previous altercation between a plaintiff and an attacker, coupled with a complaint by plaintiff regarding the altercation or a request by plaintiff to be separated from the attacker. See Hopkins v. Allard, No. 08-CV-0001 (DNH)(DEP), 2010 U.S. Dist. LEXIS 114368, at *74 (N.D.N.Y. Aug. 23, 2010) (citing Desulma v. City of New York, No. 98 Civ.2078(RMB) (RLE), 2001 U.S. Dist. LEXIS 9678, at *21, 2001 WL 798002 (S.D.N.Y. Jul. 6, 2001)). Plaintiff has not pled that he was intentionally "attacked" by Thomas; the Complaint does not plead that Plaintiff was the intended subject of the attack. Based on the version of the facts put forth by Plaintiff, nothing suggests that he was more than a bystander. Even if Plaintiff was the intended victim of the attack, nothing suggests that DOC or the other Defendants would have known that Plaintiff himself was at risk. As such, Plaintiff has failed to provide the necessary evidence that he faced a substantial risk of harm and meet the objective prong of the failure to protect analysis.
At best, Plaintiff has alleged an unexpected incident, but unexpected incidents are insufficient to propagate a deliberate indifference claim. See, e.g., Colliton v. Gonzalez, No. 07 Civ. 2125(RJH)(MHD), 2011 U.S. Dist. LEXIS 29954, at *22, 2011 WL 1118621 (S.D.N.Y. Mar. 23, 2011) (holding that `minor injuries' from random altercations" are insufficient to make out a deliberate indifference claim); Parris v. N.Y. State Dept Corr. Servs., No. 12 Civ. 1849(JGK), 2013 U.S. Dist. LEXIS 73407, at *13, 2013 WL 2257096 (S.D.N.Y. May 23, 2013) ("Courts routinely deny deliberate indifference claims based on surprise attacks."). Plaintiff contends in his opposition that Rivera "fail[ed] to properly train and supervise" Reynolds, who "fail[ed] to place the proper restraints" on Thomas. However, "[t]he mere fact that a defendant possesses supervisory authority is insufficient to demonstrate liability for failure to supervise under § 1983." Styles v. Goord, 431 F. App'x 31, 33 (2d Cir.2011); see also Vogelfang v. Capra, 889 F.Supp.2d 489, (S.D.N.Y.2012). Plaintiffs allegations are otherwise mere legal conclusions that would not survive a 12(b) (6) motion. See Iqbal, 129 S.Ct. at 1950. Similarly, Plaintiffs contends in his opposition that Rivera acted with "[d]eprived, depra[v]ed indifference" and that Ray acted with deliberate indifference towards him (Pl.'s Resp. to Defs.' Mot. To Dismiss, Points II, V), but these are bare recitals of the legal standard that are mere conclusory allegations that cannot survive a motion to dismiss. See id. ("Rule 8 does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.").
The Complaint Has Failed To Allege Rivera and Ray Were Personally Involved In A Violation Of His Rights "[P]ersonal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983." Spavone v. N.Y. State Dep't of Corr. Servs., 719 F.3d 127, 135 (2d Cir.2013) (quoting Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.1995)). "[P]ersonal involvement is the keystone to personal liability for [a] civil rights deprivation." Williams v. New York, No. 80 Civ. 4717(CSH), 1983 U.S. Dist. LEXIS 19558, at *10 (S.D.N.Y. Feb. 2, 1983). If a complaint fails to sufficiently allege a defendant's personal involvement in alleged constitutional violations, dismissal is required under Rule 12(b)(6). Day v. Armstrong, No. 99-281, 2000 U.S.App. LEXIS 31029, at *3-4, 2000 WL 1775515 (2d Cir. Nov. 30, 2000); Walker v. City of New York, No. 08 Civ. 10043(KBF), 2012 U.S. Dist. LEXIS 13783, at *11 (S.D.N.Y. Feb. 2, 2012).
The Complaint alleges that "CO. Reynolds along with the Warden failed to protect me from this inmate's devious deeds." (Compl. ¶ II[D].) However, the Complaint does not allege that Rivera was present during this incident or as to how Rivera failed to protect the Plaintiff. "A defendant's status as warden or commissioner of a prison, standing alone, is . . . insufficient to support a finding of supervisory liability." Walker v. Schriro, No. 11 Civ. 9299(JPO), 2013 U.S. Dist. LEXIS 42551, at *51, 2013 WL 1234930 (S.D.N.Y. Mar. 26, 2013). Given the Complaint's lack of allegations and specificity regarding Rivera's personal involvement, the Complaint must be dismissed against him. See, e.g., Pettus v. Morgenthau, 554 F.3d 293, 300 (2d Cir.2009).
Qualified immunity is "an immunity from suit rather than a mere defense to liability." Spavone v. N.Y. State Dep't of Corr., 719 F.3d 127, 133 (2d Cir.2013) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985) (internal quotation marks omitted) (emphasis removed from original). It protects government employees from civil liability where performance of their discretionary functions does not violate clearly established statutory or constitutional rights of which a reasonable person should have known, or if the official reasonably believed that her conduct did not violate those rights. See Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009); Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1992).
Reynolds actions were objectively reasonable. Plaintiff pleads that he was employed as "an inmate laundry worker" when Reynolds opened the slot to Thomas' door. (Compl. ¶ II[D].) It was reasonable for Reynolds to hold the slot open in order to facilitate the exchange of laundry. Moreover, Plaintiff has not alleged that he was afraid of Thomas or made any such fear known to Reynolds. Given such, it was objectively reasonable for Reynolds to believe her actions were lawful, and Reynolds is entitled to qualified immunity.
Plaintiff's Claim For Compensatory Damages Is Barred Under section 1997e(e) of the Prison Litigation Reform Act ("PLRA"), "[n]o Federal civil action may be brought by a prisoner confined in a jail, prison or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury." 42 U.S.C. § 1997e(e). Section 1997e(e) "bars prisoner civil rights suits seeking damages for constitutional violations where the inmate-plaintiff suffers only emotional and mental injury." Cox v. Malone, 199 F.Supp.2d 135, 139 (S.D.N.Y.2002), aff'd 56 F. App'x 43 (2d Cir.2003) (internal citations omitted). The purpose of the PLRA's physical injury requirement is "to weed out frivolous claims where only emotional injuries are alleged." Cox, 199 F.Supp.2d at 140. In order to recover compensatory damages, a plaintiff must allege that he or she has suffered a physical injury. "Courts have strictly construed this requirement, barring claims by prisoners who demonstrate solely emotional or mental injury." Petty v. Goord, No. 00 Civ. 803(JSR)(FM), 2008 U.S. Dist. LEXIS 38975, at *17 (S.D.N.Y. Apr. 22, 2008) (internal quotation marks omitted); Hudson v. Greiner, 99 Civ. 12339(LAP), 2000 U.S. Dist. LEXIS 17913, at *10-12, 2000 WL 1838324 (S.D.N.Y. Dec. 13, 2000) (dismissing plaintiffs claims of emotional and mental distress pursuant to Fed.R.Civ.P. 12(b)(6) where plaintiff failed to allege physical injury); Birth v. Pepe, No. 98 Civ. 1291, 1999 U.S. Dist. LEXIS 13177, at *1-3, 1999 WL 684162 (E.D.N.Y. Jul. 21, 1999) (same).
The Complaint alleges that Plaintiff suffers from "severe apprehension of the contraction of HIV, Hepatitis A, Hepatitis B, burning and stinging of the eyes, fear of losing eye sight, emotion[al] and psyc[h]ological damage." (Compl. ¶ III.) The injuries Plaintiff claims, other than burning of the eyes, are emotional injuries. See, e.g., Pierre-Antoine v. City of New York, No. 04 Civ. 6987(GEL), 2006 U.S. Dist. LEXIS 28963, at *6, 2006 WL 1292076 (S.D.N.Y. May 10, 2006) (characterizing "general fear or mistrust of police officers" as an emotional injury); Voorhees v. Goord, No. 05 Civ. 1407(KMW)(HBP), 2006 U.S. Dist. LEXIS 48370, at *27-28, 2006 WL 1888638 (S.D.N.Y. Feb. 24, 2006) (dismissing plaintiffs argument that "stress," "fear," and "depression" were physical injuries under the PLRA). Plaintiff cannot recover for these alleged injuries under the PLRA. The physical injury Plaintiff alleges is "burning and stinging of the eyes" (Compl. ¶ III), which is a de minimis injury. See Coleman v. City of New York, No. 07 Civ. 1051(CM), 2010 U.S. Dist. LEXIS 9827, at *14, 2010 WL 571986 (S.D.N.Y. Feb. 2, 2010) (describing "temporary burning to [plaintiffs] eyes" as "transitory and de minimis"). Plaintiff is thus barred from seeking compensatory damages as he has pleaded no cognizable injuries under § 1997e(e).
DOC is an agency of the City of New York and lacks an independent legal existence. The New York City Charter provides that "[a]ll actions and proceedings for the recovery of penalties for the violation of any laws shall be brought in the name of the City of New York and not in that of any agency, except where otherwise provided by law." N.Y.C. Charter § 396. "[A]s an agency of the City of New York, the DOC is not a suable entity." White v. Vance, No. 10 Civ. 6142(NRB), 2011 U.S. Dist. LEXIS 67799, at *14, 2011 WL 2565476 (S.D.N.Y. June 21, 2011). Accordingly, the claims against DOC is dismissed.
Based on the conclusions set forth above, the Complaint is dismissed. Plaintiff is granted leave to replead within 20 days.
It is so ordered.
Julian John Corye, pro se.
Stephen J. Rehfuss, Esq. for Defendants.
LAWRENCE E. KAHN, District Judge.
It is the duty of this Court to "make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b). "A [district] judge . . . may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Id. This Court has considered the objections and has undertaken a de novo review of the record and has determined that the Report-Recommendation should be approved for the reasons stated therein. Regarding Defendants' objection to the denial of summary judgment for Plaintiffs' failure to exhaust remedies, this Court notes that the additional evidence supplied by Defendants to support their motion fails to show that there is no genuine issue as to any material fact on the issue of whether Plaintiff should be excused for his failure to comply with administrative remedies.
Accordingly, it is hereby
ORDERED, that Plaintiffs
GUSTAVE J. DiBIANCO, United States Magistrate Judge.
This matter has been referred to me for Report and Recommendation by the Honorable Lawrence E. Kahn, Senior United States District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rules N.D.N.Y. 72.3(c).
In this amended civil rights complaint, plaintiff alleges that on March 1, 2007, defendants failed to protect him from an attack by other inmates at the Albany County Correctional Facility and engaged in excessive force against plaintiff during and after the attack by the other inmates. (Amended Complaint (AC)) at 4-5) (Dkt.No.25). Plaintiff also alleges that after the incident, he was placed in a cell prior to receiving any medical attention. (AC at 5-6).
Summary judgment may be granted when the moving party carries its burden of showing the absence of a genuine issue of material fact. FED. R. CIV. P. 56; Thompson v. Gjivoje, 896 F.2d 716, 720 (2d Cir.1990) (citations omitted). "Ambiguities or inferences to be drawn from the facts must be viewed in the light most favorable to the party opposing the summary judgment motion." Id. However, when the moving party has met its burden, the nonmoving party must do more than "simply show that there is some metaphysical doubt as to the material facts." Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
In meeting its burden, the party moving for summary judgment bears the initial responsibility of informing the court of the basis for the motion and identifying the portions of the "`the pleadings, depositions, answers to interrogatories, and admissions on the file, together with any affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the non-movant bears the burden of proof at trial, the moving party may show that he is entitled to summary judgment by either (1) pointing to evidence that negates the nonmovant's claims or (2) identifying those portions of the non-movant's evidence that demonstrate the absence of a genuine issue of material fact. Salahuddin v. Goord, 467 F.3d 263, 272-73 (2d Cir.2006) (citing Celotex Corp., 477 U.S. at 23). The second method requires identifying evidentiary insufficiency, not merely denying the opponent's pleadings. Id.
If the moving party satisfies its burden, the nonmoving party must move forward with specific facts showing that there is a genuine issue for trial. Id. A dispute about a genuine issue of material fact exists if the evidence is such that "a reasonable [factfinder] could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. In determining whether there is a genuine issue of material fact, a court must resolve all ambiguities, and draw all inferences, against the movant. See United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
Plaintiff is currently incarcerated at Cayuga Correctional Facility, but was incarcerated at Albany County Correctional Facility (ACCF) in early 2007. (See AC). At his deposition, plaintiff stated that he had been assigned to the Three West tier at ACCF for at least one month. Rehfuss Aff. Ex. E (Deposition ("Depo.")) at 8) (Dkt. No. 57). Plaintiff was then assigned to keeplock
Based on the alleged warning from the other inmate, plaintiff packed his belongings, and when defendant Remillard let plaintiff out of his cell to go to the medical unit, plaintiff took all his belongings with him to the front gate. (AC at 4). Plaintiff reported to the "bullpen," which contains the two front gates that lead to the officers' desk. (AC at 4; Depo. at 7). Defendant Remillard asked plaintiff what he was doing, and plaintiff stated that he still wanted to go to the medical unit, but that he also could not continue to live on that tier. (AC at 4; Depo. at 7).
In his response to the motion for summary judgment, plaintiff states that when an inmate says "he can't live here," the statement is code for "if you leave me on this tier something bad will happen." Pl. Statement of Material Fact at ¶ 18 (Dkt. No. 59). Plaintiff states that defendant Remillard then locked plaintiff in between the two gates near the officers' desk. (AC at 4; Depo. at 7).
Plaintiff states that while he was locked between the gates, some inmates started talking to plaintiff and spitting on him. (AC at 4; Depo. at 10). In the amended complaint, plaintiff states that defendant Remillard saw this occurring and instructed plaintiff to go back to his cell. Id. At his deposition, plaintiff testified that defendant Remillard left "for a second," and other inmates approached plaintiff while yelling at him. (Depo. at 10). Plaintiff testified that one of the inmates spat on plaintiff. Id.
Plaintiff testified that defendant Remillard came back, and asked plaintiff if he would go back to his cell. Id. Plaintiff then requested to see the sergeant. (AC at 4; Depo. at 10). Plaintiff states that defendant Remillard opened the gate leading back to the tier, and told the inmates "ya'll can get him now" [sic]. Id. Plaintiff states that at this point, approximately fifteen inmates "jumped" him. (AC at 4; Depo. at 11).
At his deposition, plaintiff testified that the inmate attack lasted for about five minutes, but that he was "not really" injured during the fight. (Depo. at 11). Plaintiff testified that defendants Kusaywa, Remillard, Carr and
Chase were involved in breaking up the fight.
Plaintiff testified that he did not know how long the attack lasted, and that he lost consciousness once during the attack. (Depo. at 16). Plaintiff states that the guards, including one who did not participate in the attack, picked him up, and that defendant Carr grabbed plaintiff by the testicle. (AC at 5; Depo. at 16-17). Plaintiff testified that he was eventually escorted to a cell in another part of the facility. (Depo. at 17-18). Plaintiff states that he did not receive any medical care at that time. (AC at 5).
Plaintiff testified when he was brought to the cell, the handcuffs were removed. (Depo. at 18). Plaintiff testified that he lost consciousness in the cell, and vomited. Id. In his amended complaint, plaintiff states that at some point, he tried to stand up and fainted again. (AC at 5). Plaintiff testified that when he woke up, there was blood on him and "all over" the cell floor, and three nurses were present in the cell. (Depo. at 19). Plaintiff stated that he was transported to the medical unit, and that emergency medical services were called to the facility. (Depo. at 19-20). Plaintiff was taken to Albany Medical Center for treatment of his injuries. (AC at 6; Depo. at 21).
Plaintiff testified that he returned to ACCF later that night. (Depo. at 22). Plaintiff was assigned to the Medical Unit, and stayed there for approximately seven days before he was returned to the general population. (Depo. at 23). Plaintiff testified that his injuries on March 1, 2007 included a swollen wrist, a laceration on his forehead, and a slight concussion. (Depo. at 19, 21, 23-24). Plaintiff stated that he had dizzy spells, but that they eventually went away. (Depo. at 24). At the time of his deposition, plaintiff stated that he continued to have severe headaches and testicle pain. Id. Plaintiff testified that he was still waiting to see a specialist for the headaches, but that a doctor has told plaintiff that there is nothing else to do to treat the testicle pain. (Depo. at 25, 39).
The Prison Litigation Reform Act, (PLRA), 42 U.S.C. § 1997e(a) requires an inmate to exhaust all available administrative remedies prior to bringing a federal action. This requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes and regardless of the subject matter of the claim. See e.g. Giano v. Goord, 380 F.3d 670, 675-76 (2d Cir.2004).
In Jones v. Bock, 549 U.S. 199, 218 (2007), the Supreme Court held that in order to properly exhaust an inmate's administrative remedies, he must complete the administrative review process in accordance with the applicable state rules. Id. (citing Woodford v. Ngo, 548 U.S. 81 (2006)). In Woodford, the Court held that "proper" exhaustion means that the inmate must complete the administrative review process in accordance with the applicable procedural rules, including deadlines, as a prerequisite to bringing suit in federal court. 548 U.S. at 90-103. In Woodford, the Court concluded that the inmates did not properly exhaust their administrative remedies when their grievances were dismissed because the inmates had missed the deadlines set forth in the grievance procedure. Id. at 93.
The Inmate Grievance Program for county jails is outlined in Title 9 of the New York Code of Rules and Regulations, in Subtitle AA, governing the Commission of Correction. N.Y. COMP.CODES R. & REGS. (N.Y.CRR), tit. 9, §§ 7032.1 et seq. Section 7032.1 provides that the chief administrative officer of a local facility must establish and maintain a formal inmate grievance program, however, "[e]very effort shall be made to resolve inmate complaints in an informal manner." Id.
The regulations provide that the chief administrative officer of the local correctional facility shall designate a staff member to act as grievance coordinator. 9 NYCRR § 7032.4(e). Facility staff must make grievance forms available to inmates who wish to file grievances. Id. § 7032.4(d). An inmate must file his grievance within five days of the act or occurrence giving rise to the grievance. Id. The regulations contain minimum requirements for the investigation of an inmate grievance. Id. § 7032.4(f)-(g).
The grievance coordinator must issue a written determination within five days of receipt of the grievance. Id. § 7032.4(i). The inmate has two days within which to appeal an adverse determination to the chief administrative officer or his designee, who has five days to issue a decision on the appeal. Id. §§ 7032.4(j)-(k). If the inmate is dissatisfied with the chief administrator's decision, the inmate has three days to appeal to the State Commission of Correction by indicating his or her desire to appeal on the inmate grievance form in the space provided. Id. § 7032.5(a). The grievance coordinator of the local facility has three days after receiving the inmate's notice of appeal to send the appeal, the accompanying investigation report, and all the other pertinent documents to the Commission's Citizen's Policy and Complaint Review Council. Id. § 7032.5(b). Section 7032.5 contains very detailed requirements for the timing of the appeal determination and the implementation of any favorable determination. Id. § 7032.5(d)-(e).
Although after Woodford, there was some question whether exhaustion could be "excused," the Second Circuit has continued to apply the three factors articulated in Brownell, and has found error when the district court failed to conduct this analysis. See Macias v. Zenk, 495 F.3d 37 (2d Cir.2007); Harrison v. Goord, No. 07 Civ. 1806, 2009 U.S. Dist. LEXIS 48478, *20-21 n. 6 (S.D.N.Y. June 9, 2009) (citing Vogelfang v. Riverhead County Jail Officers, No. 07-1268, 2009 U.S.App. LEXIS 1914 (2d Cir. Feb. 2, 2009) (finding error in district court's failure to consider plaintiff's arguments that exhaustion should be excused); Toomer v. County of Nassau, No. 07-CV-1495, 2009 U.S. Dist. LEXIS 38160 at *25 n. 8 (E.D.N.Y. May 5, 2009) (collecting cases)).
In this case, defendants argue that plaintiff has failed to exhaust his administrative remedies because he did not file a grievance complaining of this incident. Defendants cite Brownell and argue that plaintiff should not be excused from the exhaustion requirement. Def. Reply Mem. at 10. Defendants argue that the grievance procedure was "available to plaintiff." Id. Plaintiff admitted that he had filed grievances in the past and should have known the proper recipient of the grievance. Defendants also argue that instead of appealing to the Central Office Review Committee, he appealed to Sheriff Campbell. Finally, defendants argue that the New York regulations provide that plaintiff could have filed his grievance after he was transferred to Downstate Correctional Facility. Def. Reply Mem. at 10.
In the amended complaint, plaintiff states that "[d]ue to mitigating circumstances, [he] was unable to file a timely grievance." (AC at 6). During his deposition, plaintiff testified that the officers in his housing unit "would not take" the grievance. (Depo. at 31). Plaintiff states that he could not even obtain a grievance form, so he wrote the grievance on a plain piece of paper. (Depo. at 31). Plaintiff claims that he gave his grievance to a female sergeant at ACCF when he was "moved . . . to the other side," but he never got a response. Id. (Depo. at 32). Plaintiff has submitted a copy of the "grievance" that he says he gave to the sergeant. Pl. Mem. of Law, Ex. A (Dkt. No. 59-2). Plaintiff claims that he was "constantly being threatened not to put in grievances." (Depo. at 31).
The court must first note that defendants appear to cite the incorrect sections of the NYCRR. Defendants begin their argument citing to the appropriate section of Title 9 of the NYCRR, and then make their argument based upon the sections that apply to New York
Defendants also cite 7 NYCRR § 1700.5(a), (b) for the proposition that plaintiff could have properly filed his grievance after he was transferred to Downstate. Unfortunately, this section refers to inmate
While generally, transfer does not excuse the exhaustion requirement, the issue is more complicated when an inmate is transferred to the custody of a different "government." See Berry v. Kerik, 366 F.3d 85, 88 (2d Cir.2004); Key v. Toussaint, No. 05 Civ. 10461, 2009 U.S. Dist. LEXIS 82488, *14-17 (S.D.N.Y. Sept. 19, 2009) (discussing transfer from state to federal custody). The question then becomes whether the inmate would have had time to pursue his administrative remedies while still confined to the county facility. Berry, 366 F.3d at 88. In Berry, the court found that the plaintiff would have had time to utilize the grievance mechanism prior to his transfer, however, the Second Circuit specifically stated that it was not considering 7F'situations where only a brief interval elapses between the episode giving rise to the prisoner's complaint and the prisoner's transfer to the custody of another jurisdiction." 366 F.3d at 88 n. 3.
Although the grievance mechanism was clearly "available" in a technical sense, if plaintiff believed that he had given his grievance to an officer, and plaintiff was waiting for an answer, it is unclear when he would have realized that an answer was not forthcoming. It appears that plaintiff was transferred to Downstate after March 26, 2007, but before April 29, 2007.
An inmate has a right under the Eighth and Fourteenth Amendments to be spared "the `unnecessary and wanton infliction of pain.'"
In this case, plaintiff alleges that defendant Remillard failed to protect plaintiff from an assault by other inmates. There is absolutely no evidence that defendant Remillard knew of or disregarded a serious risk to plaintiff. Plaintiff testified at his deposition that defendant Remillard "left for a second," while the plaintiff was allegedly arguing with other inmates. (Depo. at 10). Even though plaintiff testified that when defendant Remillard opened the gate, he stated "ya'll can get him now," plaintiff does not indicate how defendant Remillard would have been aware that plaintiff was in danger. Plaintiff also testified that he knew defendant Remillard before the incident, but he was just an "A-hole." (Depo. at 43).
An Eighth or a Fourteenth Amendment claim that defendants used excessive force has a subjective and an objective component. Sims v. Artuz, 230 F.3d 14, 20 (2d Cir.2004). The subjective component focuses on the
The determination of whether action is "wanton" turns upon whether the force "was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm." Hudson, 503 U.S. at 7; Whitely v. Albers, 475 U.S. 312, 320-21 (1986) (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.), cert. denied, 414 U.S. 1033 (1973)).
The objective component focuses on the harm done, and the defendants' conduct must be "`inconsistent with the contemporary standards of decency' and `repugnant to the conscience of mankind.i' "Whitely, 475 U.S. at 327. The court must ask itself whether the alleged conduct was objectively "harmful enough to establish a constitutional violation." Wright, 554 F.3d at 268 (quoting Hudson, 503 U.S. at 8) (internal quotation marks omitted). However, where the defendants' use force maliciously and sadistically, the "contemporary standards of decency" are always violated, whether or not a "significant injury" occurs. Id. at 268-69 (quoting Hudson, 503 F.3d at 9).
Thus, where a prisoner's claims, together with his evidentiary proffers could "reasonably, if credited, allow a rational fact finder to find that corrections officers used force maliciously and sadistically," then summary dismissal is not appropriate. Id. at 269. The lack of a serious injury is "relevant," but does not end the inquiry. Hudson, 503 U.S. at 7. The extent of the injury must be considered "in context." Scott v. Coughlin, 344 F.3d 282, 291 (2d Cir.2003). The court must determine the need for the force, the relationship between the need and the amount of force used, the extent of the injury suffered, the extent of the threat to the safety of staff and inmates, and any efforts made to temper the severity of a forceful response. Whitely, 475 U.S. at 321.
In this case, defendants request summary judgment based on their argument that they were merely breaking up a fight and that any force used was to restore order and to prevent plaintiff from harming himself or others. Plaintiff acknowledges that he was engaged in an altercation, but testified that he was not really injured as a result of that altercation. (Depo. at 11). Rather, plaintiff claims that defendants used excessive force upon plaintiff
In order to state a claim based on constitutionally inadequate medical treatment, the plaintiff must allege "acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97, 106 (1976). As in the excessive force cases, the subjective and objective elements apply. Smith v. Carpenter, 316 F.3d 178, 183-84 (2d Cir.2003). See Caiozzo v. Koreman, No. 05-4002, 2009 U.S.App. LEXIS 22-23 (2d Cir. Sept. 22, 2009) (applying standard to pretrial detainees). The objective element measures the severity of the deprivation, while the subjective element ensures that the defendant acted with a sufficiently culpable state of mind. Id. at 184 (citing inter alia Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir.1998)).
In order to meet the first element of the standard, plaintiff must show that he has a sufficiently serious illness or injury. Id. (citing Hudson v. McMillian, 503 U.S. 1, 9 (1992). A medical condition has been considered "sufficiently serious" when there is a "condition of urgency," one that may result in death, degeneration, or extreme pain. Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir.1996). The seriousness of a plaintiff's medical need may also be determined by reference to the effect of denying the particular treatment. Sonds v. St. Barnabas Hosp. Correctional Health Services, 151 F.Supp.2d 303, 310 (S.D.N.Y.2001) (citation omitted). Thus, if unnecessary and wanton infliction of pain results from the denial of treatment, or if the denial of treatment causes the inmate to suffer a lifelong handicap or permanent loss, the condition may be considered "sufficiently serious." Id. (citing Harrison v. Barkley, 219 F.3d 132, 136 (2d Cir.2000)).
In order to meet the second element, plaintiff must demonstrate more than an "inadvertent" or negligent failure to provide adequate medical care. Id. (citing Estelle, 429 U.S. at 105-106). Instead, plaintiff must show that the defendants were "deliberately indifferent" to that serious medical condition. Id. In order to rise to the level of deliberate indifference, the defendants must have known of and disregarded an excessive risk to the inmate's health or safety. Id. (citing Chance, 143 F.3d at 702). As in the failure to protect claims, defendants must both be aware of the facts from which the inference could be drawn that a substantial risk of serious harm exists, and they must draw that inference. Chance, 143 F.3d at 702 (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)).
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have ten days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court.
Kevin P. Mulry, Farrell Fritz, P.C., Uniondale, NY, for Plaintiff-Appellant.
Martin A. Hotvet, Assistant Solicitor General, Andrea Oser, Deputy Solicitor General, Barbara D. Underwood, Solicitor General, for Eric T. Schneiderman, Attorney General of the State of New York, Albany, NY, for Defendants-Appellees.
PRESENT: AMALYA L. KEARSE, DEBRA ANN LIVINGSTON and SUSAN L. CARNEY, Circuit Judges.
Plaintiff-Appellant Bartram Yihni Dabney ("Plaintiff") appeals from a decision of the United States District Court for the Northern District of New York (Suddaby, J.) entered on September 30, 2013. The district court granted summary judgment for Defendants— Appellees William Drumm, Scott Hamel, Ronald Lamb, Denis Livermore, and James Pagano (collectively, "Defendants") concluding, inter alia, that the Prison Litigation Reform Act of 1995 ("PLRA") bars Plaintiff's excessive force claims brought under 42 U.S.C. § 1983 because he failed to exhaust his administrative remedies. In a February 20, 2014 order, this Court permitted Plaintiff to "proceed to merits briefing of his argument that, pursuant to Hemphill v. New York, 380 F.3d 680, 686 (2d Cir.2004), he should not have been required to administratively appeal the Inspector General's determination that his claims of excessive force and failure to intervene were unsubstantiated." Dabney v. Pegano, No. 13-3884 (2d Cir. Feb. 20, 2014). The order dismissed the remaining issues on appeal. We assume the parties' familiarity with the
We review "de novo a district court's ruling on whether a plaintiff has exhausted administrative remedies under the Prison Litigation Reform Act of 1995." Johnson v. Rowley, 569 F.3d 40, 44 (2d Cir.2009). Where, as here, the district court's decision came after a motion for summary judgment, we review the record in the light most favorable to the nonmoving party and affirm only when there "is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
The PLRA states that "[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner . . . until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). This provision "requires `proper exhaustion,' which `means using all steps that the agency holds out, and doing so properly (so that the agency addresses the issues on the merits).'" Hernandez v. Coffey, 582 F.3d 303, 305 (2d Cir.2009) (quoting Woodford v. Ngo, 548 U.S. 81, 90, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006)). Though exhaustion is generally mandatory, we have explained that a failure to exhaust administrative remedies may be excused where: (1) the administrative remedies were not in fact available; (2) prison officials have forfeited, or are estopped from raising, the affirmative defense of non-exhaustion; or (3) "special circumstances . . . justify the prisoner's failure to comply with administrative procedural requirements." Hemphill v. New York, 380 F.3d 680, 686 (2d Cir.2004) (internal quotation marks omitted).
As an inmate of the New York State Department of Corrections and Community Supervision ("DOCCS"), Plaintiff was required to submit his grievances through the New York DOCCS' Inmate Grievance Program ("IGP"). The IGP has a three-tiered process for adjudicating complaints: "(1) the prisoner files a grievance with the Inmate Grievance Resolution Committee (`IGRC'), (2) the prisoner may appeal an adverse decision by the IGRC to the superintendent of the facility, and (3) the prisoner then may appeal an adverse decision by the superintendent to the Central Office Review Committee (`CORC')." Espinal v. Goord, 558 F.3d 119, 125 (2d Cir.2009) (citing 7 N.Y. Comp.Codes R. & Regs. § 701.7 (1999)). Each step of this process has a timeframe in which the decisionmaker must respond to the prisoner. If the decisionmaker does not respond within that timeframe, the prisoner may "appeal [] to the next step" in the process. 7 N.Y. Comp.Codes R. & Regs. § 701.6(g). "The IGP also has an `expedited' process for harassment grievances, which pertains to [e]mployee conduct meant to annoy, intimidate, or harm an inmate.'" Espinal, 558 F.3d at 125 (quoting 7 N.Y. Comp.Codes R. & Regs. § 701.11 (1999)). These grievances go directly to a superintendent. The prisoner can appeal to the CORC directly from the superintendent's decision or, if the superintendent does not render a decision in a timely fashion, upon expiration of the allotted time. 7 N.Y. Comp.Codes R. & Regs. §§ 701.8(f)-(g).
The IGP did not require Plaintiff to appeal from an adverse report by the Inspector General's Office ("IG") in order to properly exhaust his administrative remedies. A prisoner or a superintendent may ask the IG to investigate a harassment grievance. But such an investigation is not a formal part of the IGP. See 7 N.Y. Comp.Codes R. & Regs. § 701.3(f) ("Any . . . action taken by an entity not under the supervision of the [DOCCS] Commissioner
Nonetheless, the district court correctly decided that the PLRA bars Plaintiff's excessive force claims because he did not properly exhaust his administrative remedies and no special circumstances justified his failure to do so.
Even under our pre-Woodford case law, Plaintiff has not shown that "special circumstances" justified his "failure to comply with administrative procedural requirements." Hemphill, 380 F.3d at 686 (internal quotation marks omitted). The IG's investigation of Plaintiff's claims does not constitute such a special circumstance. It was clear from the subject matter of Plaintiff's lawsuit that the IGP required him to pursue his claims before the CORC. See Amador v. Andrews, 655 F.3d 89, 102-03 (2d Cir.2011) (refusing to excuse an inmate's failure to exhaust notwithstanding an IG investigation of her claim). "While [the IGP] is a somewhat complex scheme, it hardly constitutes special circumstances." Id. at 103. Permitting an IG investigation to substitute for IGP exhaustion would allow prisoners to bypass the CORC's review and the IGP's multi-step adjudicatory process. Those features of the IGP "afford[] corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case" and "reduce the quantity and improve the quality of prisoner suits." Woodford, 548 U.S. at 93, 94, 126 S.Ct. 2378 (internal quotation marks omitted).
The other circumstances of Plaintiff's case do not justify departing from the IGP's requirements. The IGP provides a clear timeline for appealing grievances to the CORC, which applies even when the prisoner does not receive a timely decision from the IGRC or a superintendent. See 7 N.Y. Comp.Codes R. & Regs. §§ 701.5, 701.6(g). Plaintiff therefore had an unimpeded path to the CORC, notwithstanding his claims that the Great
We have reviewed the petitioner's remaining arguments and find them to be without merit. For the foregoing reasons, the judgment of the district court is
RICHARD J. SULLIVAN, District Judge.
The Court presumes the parties' familiarity with the facts and procedural history in this case.
On March 18, 2015 and March 20, 2015, the Court accepted untimely submissions from Plaintiffs Spurgeon and Groenow that purport to be their respective 56.1 statements. (No. 13-cv-5749, Doc. No, 37; No. 13-cv-6090, Doc. No. 45.) Plaintiff Spurgeon states that after he filed his grievance, he "wrote to the Warden as well as spoke to him personally," and he "had no chance in exhausting [his] remedies successfully due to [the] officers taking [his] mail and making sure [his] mail didn't reach its destination." (No. 13-cv-6090, Doc. No. 45 at 3.) Plaintiff Groenow states that after he filed his grievance, he "[did] not hear anything for 4 or 5 days," so he "asked Captain Bell about the status of [his] grievance [and] she said she would look into it," but when "[he] asked when a hearing would be conducted[,] Captain Bell replied `after the investigation.'" (No. 13-cv-5749, Doc. No. 37 at 4.) Plaintiff Groenow further states that "shortly thereafter [he] was transferred to DNDC and on January 2, 2014[he] was sent upstate," and that "the inmate Grievance Resolution Program does not tell [inmates] what to do to continue the grievance once [one] leave[s] the jail." (Id.)
Plaintiffs Spurgeon's and Groenow's 56.1 statements fail as a matter of law to demonstrate that (1) they satisfied the PLRA exhaustion requirement or (2) they qualify them for one of the exemptions recognized under Hemphill. Plaintiff Spurgeon states that after he did not receive a response from his initial grievance, he wrote to and spoke with the Warden about his grievance. Similarly, Plaintiff Groenow states that after he filed his initial grievance, he inquired about the status of his grievance with Captain Bell. However, neither Plaintiff sought any further review of their grievance through the IGRP process, even though IGRP procedure expressly provided that inmates must proceed to the next step of the process within 10 business days of when a response from the facility was due, even if the facility did not provide a response. The law is well-settled that informal means of communicating and pursuing a grievance, even with senior prison officials, are not sufficient under the IGRP or the PLRA exhaustion requirement. See, e.g., Macias v. Zenk, 495 F.3d 37, 44 (2d Cir.2007); Simon v. Campos, No. 08-cv-8797 (PKC), 2010 WL 1946871, at *6 (S.D.N.Y. May 10, 2010); Adames v. New York City Dep't of Corrs., No. 07-cv-4021 (GBD), 2008 WL 2743835, at *3 (S.D.N.Y. July 14, 2008). Accordingly, Plaintiff Spurgeon's and Groenow's 56.1 statements do not alter the Court's conclusion that they failed to exhaust administrative remedies.
Plaintiffs Spurgeon's and Groenow's 56.1 statements also fail to show that they qualify for one of the Hemphill exemptions to the PLRA exhaustion requirement. Plaintiff Spurgeon states that various officers took his outgoing mail to interfere with his ability to exhaust his administrative remedies. Courts review claims of retaliation by prisoners "with skepticism" because of the "ease with which a retaliation claim may be fabricated." Nunez v. Goord, 172 F.Supp.2d 417, 431 (S.D.N.Y.2001); see also Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir.1995). Plaintiff Spurgeon does not specify the dates of the alleged mail tampering, identify the officers allegedly involved, describe the contents of the mail allegedly taken, or include any details beyond the bald assertion that his mail was taken. Such allegations "stand alone and unsupported" and are insufficient to qualify Plaintiff Spurgeon for one of the Hemphill exemptions. See Winston v. Woodward, No. 05-cv-3385 (RJS), 2008 WL 2263191, at *9 (S.D.N.Y. May 30, 2008). In any event, the IGRP provides inmates with multiple avenues to file their grievances or appeals that do not depend upon access to outgoing mail, and therefore Plaintiff Spurgeon cannot show that he was excused from exhausting his administrative remedies even if prison officials did take his outgoing mail. (No. 13-cv-5749, Doc. No. 29 Ex. E.)
Having previously concluded that Plaintiffs Spurgeon and Groenow failed to exhaust their administrative remedies and did not qualify for one of the exemptions recognized under Hemphill, and having reviewed Plaintiffs Spurgeon's and Groenow's 56.1 statements, IT IS HEREBY ORDERED THAT Defendants consolidated motion for summary judgment is GRANTED. The Clerk of the Court is respectfully directed to close the cases No. 13-cv-6090 and No. 13-cv-5749.
SO ORDERED.
RICHARD J. SULLIVAN, District Judge.
Plaintiff was an inmate at Green Haven from August 2008 until his transfer to Sing Sing Correctional Facility in February 2010.
Plaintiff further alleges that, on October 31, 2009, Superintendent William Lee, Lieutenant Neal Greene, Corrections Officers Rory Hamilton, David Deming, Arthur Andrews, Robert Sherman, and "P." Allen "intentionally refused to require . . . inmates to pass through metal detectors prior to their entry to the [recreation] [y]ard." (Id. ¶ 57.) Plaintiff further asserts that, at approximately 6:00 p.m. that evening, none of the assigned prison officials-Lieutenant Greene and Corrections Officers Hamilton, Deming, Andrews, Sherman, and Allen-was located at his assigned security posts in the recreation yard. (Id. ¶¶ 62-63.) Instead, these officials remained inside the prison building, behind closed doors. (Id. ¶ 64.) Plaintiff alleges that, as a result of these prison officials'" deliberate indifference and intentional disregard" for Plaintiff's safety, an inmate entered the recreation yard with a metal weapon and stabbed Plaintiff in the right eye, causing Plaintiff "immediate excruciating pain, bleeding and visual impairment." (Id. ¶¶ 60, 65-68.)
On October 31, 2012, Plaintiff, then proceeding pro se, mailed to the Clerk of Court the initial Complaint in this action, which was originally assigned to the Honorable Loretta A. Preska. (Opp'n at 5-6.) This initial pro se Complaint included at least thirteen "Doe" Defendants. (Doc. No. 48, Ex. A at 2.) In April 2013, Chief Judge Preska ordered Plaintiff to file an Amended Complaint. (Doc. No. 7.) On October 7, 2013, Plaintiff, after retaining counsel, filed the First Amended Complaint. (Doc. No. 13.) On the same date, this action was reassigned to my docket. The First Amended Complaint included at least eight "Doe" Defendants, and provided both a first and last name for only one of the other Defendants. (Id.) Following a conference on January 16, 2014, the Court permitted discovery for the limited purpose of identifying the "Doe" Defendants. On April 23, 2014, Plaintiff filed the operative pleading in this action, the Second Amended Complaint, asserting, pursuant to Section 1983, two distinct violations of his Eighth and Fourteenth Amendment rights. Specifically, Plaintiff alleges that, first, some of the Defendants "creat[ed] a dangerous environment for Plaintiff and fail[ed] to protect him from an attack," and, second, various Defendants "fail[ed] to provide immediate medical attention." (Compl. ¶¶ 117, 119.) Consequently, Plaintiff is seeking monetary damages of at least $2,000,000. On October 17, 2014, Defendants filed their motion to dismiss, arguing that: (1) Plaintiff failed to exhaust his administrative remedies; (2) his claims are largely time-barred; (3) he fails to state a cause of action; and (4) Defendants are shielded from liability on qualified immunity grounds. (Doc. Nos. 46-49.) The motion was fully submitted by December 5, 2014. (Doc. No. 54).
Defendants first move to dismiss the Second Amended Complaint pursuant to Rule 12(b)(1), for lack of subject-matter jurisdiction, but none of their arguments actually pertains to the Court's subject-matter jurisdiction. Defendants perhaps view Rule 12(b)(1) as an appropriate vehicle to contend that: (1) Plaintiff failed to exhaust his administrative remedies; (2) Plaintiff's claims are barred by the statute of limitations; or (3) Defendants are shielded by qualified immunity. However, these three affirmative defenses are not jurisdictional-they are waivable-and are thus properly raised pursuant to Rule 12(b)(6), not 12(b)(1). See, e.g., Zappulla v. Fischer, No. 11-cv-6733 (JMF), 2013 WL 1387033, at *3 n. 3 (S.D.N.Y. Apr. 5, 2013) ("The exhaustion requirement, however, is not jurisdictional, but an affirmative defense that may be raised under Rule 12(b)(6) if, on the face of the complaint, it is clear plaintiff did not exhaust all remedies." (citing Woodford v. Ngo, 548 U.S. 81, 101 (2006); Amador v. Andrews, 655 F.3d 89, 102-03 (2d Cir.2011); Richardson v. Goord, 347 F.3d 431, 434 (2d Cir.2003) (per curiam))); United States v. Koh, 968 F.Supp. 136, 137 (S.D.N.Y.1997) ("It is clear that the statute of limitations is a waivable affirmative defense." (citing United Stales v. Walsh, 700 F.2d 846, 855-56 (2d Cir.1983), cert. denied, 464 U.S. 825 (1983))); Sorano v. Taggart, 642 F.Supp.2d 45, 55 (S.D.N.Y.2009) (noting that "[q]ualified immunity is an affirmative defense" and "may be waived" (citing Stephenson v. Doe, 332 F.3d 68, 76 (2d Cir.2003); McCardle v. Haddad, 131 F.3d 43, 51 (2d Cir.1997))). Accordingly, the Court rejects Defendants' argument that it lacks subject-matter jurisdiction in this action.
42 U.S.C. § 1997e(a) (emphasis added). This exhaustion requirement "applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 532 (2002). It is well established that "[t]here is no question that exhaustion is mandatory under the PLRA and that unexhausted claims cannot be brought in court." Jones v. Bock, 549 U.S. 199, 211 (2007); see also Woodford, 548 U.S. at 85 ("Exhaustion is no longer left to the discretion of the district court, but is mandatory."); Zappulla, 2013 WL 1387033, at *4 ("The PLRA exhaustion requirement is mandatory, and courts are not free to waive or ignore it."). Furthermore, "proper exhaustion" is required under the PLRA, meaning that a prisoner must "us[e] all steps that the agency holds out, and do[] so properly (so that the agency addresses the issues on the merits)." Woodford, 548 U.S. at 90 (quoting Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir.2002) (Easterbrook, J.) (emphasis in original)). As the Supreme Court has explained. "[p]roper exhaustion demands compliance with an agency's deadlines and other critical procedural rules because no adjudicative system can function effectively without imposing some orderly structure on the course of its proceedings." Id. at 90-91. Therefore, "[t]he exhaustion inquiry . . . requires that we look at the state prison procedures and the prisoner's grievance to determine whether the prisoner has complied with those procedures." Espinal v. Goord, 558 F.3d 119, 124 (2d Cir.2009).
DOCCS's Inmate Grievance Program ("IGP") demands that prisoners complete three steps in order to exhaust their administrative remedies. See N.Y. Comp.Codes R. & Regs. tit. 7, § 701.5; see also Espinal, 558 F.3d at 125 (describing the IGP). First, the prisoner is obligated to file a grievance with the Inmate Grievance Resolution Committee ("IGRC"). N.Y. Comp.Codes R. & Regs. tit. 7, § 701,5(a)-(b). Second, the prisoner must appeal an adverse decision by the IGRC to the superintendent of the facility. Id. § 701.5(c). Third, the prisoner is required to appeal an adverse decision by the superintendent to the Central Officer Review Committee ("CORC"). Id. § 701.5(d). "Only after the CORC has denied an appeal may the inmate bring the matter into federal court." Vann v. Fischer, No. 11-cv-1958 (KPF), 2014 WL 4188077, at *22 (S.D.N.Y. Aug. 25, 2014) (citation and internal quotation marks omitted), reconsideration denied, No. 11-cv-1958 (KPF), 2015 WL 105792 (S.D.N.Y. Jan. 7, 2015); see also Gan'in v. Rivera, No. 13-cv7054 (RJS), 2015 WL 876464, at *4 (S.D.N.Y. Feb. 28, 2015).
Here, it is not clear from the face of the Second Amended Complaint that Plaintiff failed to exhaust the IGP's requirements. Indeed, in the Second Amended Complaint, Plaintiff explicitly insists that he "exhausted his administrative remedies. . . ." (Compl. ¶ 2.) Thus, the Court has little difficulty rejecting Defendants' non-exhaustion arguments at the motion to dismiss stage.
However, as part of the submissions filed in connection with this motion, Defendants have presented evidence outside the pleadings to support their claim that Plaintiff failed to exhaust the IGP's requirements, including a declaration from a DOCCS custodian of records asserting that Plaintiff did not exhaust any of the claims raised in this action. (See Doc. No. 42 ¶¶ 2-9.) Significantly, Plaintiff has not attempted to contradict this statement, nor has he asserted that he followed the IGP's mandatory second and third steps: appealing any adverse decision by the IGRC to the superintendent of the facility, N.Y. Comp.Codes R. & Regs. tit. 7, § 701.5(c), and appealing any adverse decision by the superintendent to the CORC, id. § 701.5(d). (Doc, No. 54 at 3-4.)
Nevertheless, even assuming arguendo that Defendants are correct that Plaintiff failed to exhaust the administrative procedures, this conclusion would not end the analysis. Under certain circumstances, a Plaintiff's failure to exhaust administrative remedies may be excused. This inquiry is generally guided by the threepart framework set forth by the Second Circuit in Hemphill v. New York, which considers: (1) "whether administrative remedies were in fact available to the prisoner," (2) "whether the defendants may have forfeited the affirmative defense of nonexhaustion by failing to raise or preserve it or whether the defendants' own actions inhibiting the inmate's exhaustion of remedies may estop one or more of the defendants from raising the Plaintiff's failure to exhaust as a defense," and (3) "whether special circumstances have been plausibly alleged that justify the prisoner's failure to comply with administrative procedural requirements." 380 F.3d 680, 686 (2d Cir.2004).
Nevertheless, in light of the fact that failure to exhaust is an affirmative defense that, given the pleadings here, is properly reserved for a motion for summary judgment, the Court finds that the parties should have an opportunity to further develop the record with respect to whether Plaintiff in fact exhausted his administrative remedies and whether any non-exhaustion is excused as to each of the Defendants pursuant to the Hemphill factors. Thus, the Court will order limited, expedited discovery for this purpose. Accordingly, the Court denies Defendants' motion to dismiss without prejudice to renewal as a Rule 56 motion for summary judgment following limited, expedited discovery on the issue of administrative exhaustion.
Lawrence E. Kahn, U.S. District Judge
Within fourteen days after a party has been served with a copy of a magistrate judge's report-recommendation, the party "may serve and file specific, written objections to the proposed findings and recommendations." FED. R. CIV. P. 72(b); L.R. 72.1(c). If no objections are made, or if an objection is general, conclusory, perfunctory, or a mere reiteration of an argument made to the magistrate judge, a district court need review that aspect of a report-recommendation only for clear error. Chylinski v. Bank of Am., N.A., 434 Fed.Appx. 47, 48 (2d Cir. 2011); Barnes v. Prack, No. 11-CV-0857, 2013 WL 1121353, at *1 (N.D.N.Y. Mar. 18, 2013); Farid v. Bouey, 554 F.Supp.2d 301, 306-07 & n.2 (N.D.N.Y. 2008); see also Machicote v. Ercole, No. 06 Civ. 13320, 2011 WL 3809920, at *2 (S.D.N.Y. Aug. 25, 2011) ("[E]ven a pro se party's objections to a Report and Recommendation must be specific and clearly aimed at particular findings in the magistrate's proposal, such that no party be allowed a second bite at the apple by simply relitigating a prior argument."). "A [district] judge . . . may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b).
Judge Dancks determined that although Plaintiff failed to respond to the statement of material facts filed by Defendants as required under Local Rule 7.1(a) (3), the Court would invoke its discretion to review the entire record when evaluating the parties' respective Motions for summary judgment. Rep.-Rec. at 7. The Court found that since Plaintiff's Amended Complaint was verified, the Court could treat it as an affidavit in opposition to Defendant's Motion for summary judgment.
Plaintiff objects to Judge Dancks' finding that Plaintiff's claims do not give rise to an Eighth Amendment violation. Objs. at 4. Judge Dancks found that Defendants appeared to have conceded that Plaintiff had a serious medical need, but that Defendants did not deny Plaintiff medical treatment and were not deliberately indifferent to Plaintiff's serious medical need. Rep.-Rec. at 16-17. Plaintiff argues that Defendant Rupert's decision to transfer Plaintiff to Clinton Correctional Facility for a psychiatric evaluation, which caused a delay in the diagnosis and treatment of his small bowel obstruction, amounts to deliberate indifference. Objs. at 3. However, as Judge Dancks correctly stated, Plaintiff has not set forth any evidence to suggest that the minimal delay in diagnosing his small bowel obstruction was deliberate or caused a worsening of his condition. Rep.-Rec. at 18. Moreover, Defendants set forth specific evidence suggesting that the need for Plaintiff to undergo a psychiatric evaluation was more pressing than addressing his stomach pain.
Additionally, Plaintiff asks the Court to overlook his failure to comply with Local Rule 7.1(a)(3). Objs. at 4. Consistent with Judge Dancks' recommendation, the Court has invoked its discretion in light of Plaintiff's pro se status and has overlooked Plaintiff's failure to comply with Local Rule 7.1(a)(3), instead considering the record as a whole when reviewing Defendant's Motion for summary judgment. Finally, Plaintiff requests leave of the Court to file a "response mirroring defendants memorandum of law in support of defendants motion for summary judgment."
Accordingly, it is hereby:
HON. GRANT C. JAQUITH, OF COUNSEL: KAREN LESPERANCE, ESQ., Assistant United States Attorney Acting United States Attorney for the N.D.N.Y., James T. Foley U.S. Courthouse, 445 Broadway, Room 218, Albany, NY 12207, Counsel for Defendant.
GLENN T. SUDDABY, Chief United States District Judge
Generally, liberally construed, Plaintiff's Second Amended Complaint alleges as follows. (Dkt. No. 55 [Second Am. Compli.)
Similarly, in 2002, Plaintiff submitted a "suggestion award proposal," suggesting that the IRS create "an outreach program in neighborhood health centers across the country" to help low-income citizens determine whether they were eligible for an earned income tax credit. (Id. at 4.) The IRS "used [Plaintiff]s suggestion but denied it," and Plaintiff filed a grievance alleging that he should have been awarded a portion of the savings that accrued to the IRS, as provided for in the "2001 Suggestion Program Memorandum." (Id.) The IRS asserted that no monetary savings actually accrued "from the suggestion," but offered Plaintiff $700 in settlement of his grievance (which Plaintiff accepted). (Id.)
Additionally, Defendant retaliated against Plaintiff for filing a complaint with the Equal Employment Opportunity Commission ("EEOC"), when, on September 29, September 30, October 1, October 4, and October 7, 2010, it denied his requests for Leave Without Pay ("LWOP"), and charged him with being Absent Without Leave ("AWOL"). (Id. at 2-3.)
Familiarity with the factual allegations supporting the claims in Plaintiff's Second Amended Complaint (as well as the procedural history of this case) is assumed in this Decision and Order, which is intended primarily for the review of the parties.
Before reciting the facts material to Defendant's motion for summary judgment, a few comments are appropriate regarding Plaintiff's response to Defendant's motion. In support of its motion, Defendant filed a statement of material facts pursuant to Local Rule 7.1(a)(3) of the Court's Local Rules of Practice ("Rule 7.1 Statement"). (Dkt. No. 64, Attach. 3.) Plaintiff's response thereto does not comply with Local Rule 7.1(a)(3) of the Court's Local Rules of Practice because it does not "mirror" Defendant's statement of material facts "by admitting or denying Defendant's assertions in matching numbered paragraphs," nor does it support any denials therein with specific citations to the record. N.D.N.Y. L.R. 7.1(a)(3). Rather, in response to Defendant's motion, Plaintiff has filed a single document, titled "Statement of Opposition to Defendant's Motion for Summary Judgment," which contains both his legal arguments and his responses (to the limited extent that he does respond) to Defendant's Rule 7.1 Statement. (Dkt. No. 67 [Plf.'s Opp'n to Def.'s Mtn.].) The Court notes that Plaintiff received a copy of the Court's Pro Se Handbook when he filed his Complaint (August 30, 2013). (Dkt. No. 4.) Additionally, in conjunction with its summary judgment motion, Defendant served Plaintiff with a copy of the Court's Notification of the Consequences of Failing to Respond to a Summary Judgment Motion, which also advised Defendant of the requirements of Local Rule 7.1(a). (Dkt. No. 64, Attach. 1.) Out of special solicitude to Plaintiff as a pro se civil rights litigant, however, the Court will treat his opposition as a response to Defendant's Rule 7.1 Statement, carefully reviewing it for any record-supported disputation of Defendant's Rule 7.1 Statement.
With these considerations in mind, and unless otherwise noted, the following facts were asserted by Defendant in his Rule 7.1 Statement (with a record citation supporting the fact asserted) and either admitted or not addressed by Plaintiff in his opposition. (Compare Dkt. No. 64, Attach. 3 [Def.'s Rule 7.1 Statement] with Dkt. No. 67 [Plf.'s Opp'n to Def.'s Mtn.].)
2. Amy Albee was Plaintiff's first line manager.
3. Jean Cain was Plaintiff's second line manager.
4. The IRS has an Employee Suggestion Program ("ESP"), pursuant to which an employee (or group of employees) can submit a suggestion intended to "increase productivity, save time, and/or [save] money to better serve the [IRS]." The employee may receive a monetary award if his or her suggestion is adopted by the IRS.
5. In order to submit a suggestion through the ESP, an employee must submit the suggestion in writing on IRS's "I Suggest" Form (Form 13380).
6. The instructions to Form 13380 state that suggestions should be submitted to the ESP Coordinator.
7. In 1996 or 1997, Plaintiff proposed a program to recruit low-income high school students from predominantly minority high schools, whom the IRS would train to help citizens prepare tax returns, with the goal of eventually hiring these students into full-time positions after college graduation.
8. In 1996, Plaintiff sent his proposal to U.S. House Representative Michael McNulty.
9. In 1997, Plaintiff met with faculty at the State University of New York at Albany ("SUNY Albany") regarding his proposal.
10. In 2002, and again in 2004, Plaintiff submitted a suggestion through the ESP proposing, inter alia, revisions to certain IRS forms and notices.
12. This grievance culminated in a settlement agreement between Plaintiff and the IRS, in which Plaintiff received financial compensation and agreed to waive any further complaints against the IRS related to the subject of his grievance.
13. In 2010, Plaintiff learned that a program had been implemented in another IRS office in New York State, which he viewed as the same, or substantially similar, to his minority recruitment suggestion.
14. Thereafter, in April 2010, Plaintiff discussed with his first-line and second-line managers (Albee and Cain) his earlier suggestion that the IRS develop a program to provide short-term and long-term recruitment for low-income and minority students.
15. After listening to Plaintiff's suggestion for recruiting minorities, Albee and Cain advised Plaintiff that he would have to submit any suggestions through the ESP.
16. It is not within the authority of Albee or Cain to implement Plaintiff's suggestion.
17. Plaintiff did not submit his 2010 suggestion through the ESP, and there was therefore no action taken on it.
18. On May 13, 2010, Plaintiff contacted an Equal Employment Opportunity ("EEO") counselor regarding his suggestion related to the IRS's diversity policy.
19. In August 2010, Plaintiff filed a formal complaint of discrimination.
20. Prior to September 2010, Plaintiff's supervisors had granted his requests for LWOP when he provided a doctor's note to account for his tardiness or absence.
21. On September 29, September 30, October 1, October 4, and October 7, 2010, Plaintiff arrived late to work, did not have any accrued leave time available to use, and failed to call Albee regarding his tardiness or follow proper procedures for requesting leave.
23. The note, signed by Ryan S. Marshall, FNPC, states that Plaintiff "is under my care for multiple medical conditions. He is on medication, which, [sic] may make him feel tired/lethargic at times and he may require additional rest. If you have any further questions, please call myself at the above list [sic] phone number."
24. Albee advised Plaintiff that the doctor's note was "not acceptable because it was not dated and . . . it did not reference a time frame that he would need leave."
25. Albee also informed Plaintiff that he could request leave without pay under the Family Medical Leave Act ("FMLA") if he provided proper documentation.
26. Finally, Albee warned Plaintiff that he would be charged with AWOL if he did not submit a Leave Without Pay ("LWOP") request to Jean Cain.
27. Plaintiff did not provide any other supporting medical documentation excusing his absences.
28. As a result, Plaintiff was charged with AWOL for September 29, September 30, October 1, October 4, and October 7, 2010.
29. Plaintiff was charged with AWOL 31 times in 2009, for a total of over 120 hours.
30. Plaintiff was charged with AWOL 39 times in 2010 totaling 150.3 hours.
31. Plaintiff was permitted to take LWOP 157 times in 2009 for a total of approximately 560 hours.
33. Between the time Plaintiff contacted on EEO Counselor (in May 2010) and the end of 2010, Plaintiff was permitted to use LWOP 47 times.
Plaintiff's motion for summary judgment is comprised of a single document (titled "Plaintiff's Dispositive Motion for Decision Without Hearing") and contains both a "Statement of Facts" and legal arguments. (Dkt. No. 65 [Plf.'s Mtn.] [capitalization omitted].) The "Statement of Facts" section of Plaintiff's motion, which the Court construes as Plaintiff's Rule 7.1 Statement, contains 13 sequentially numbered factual assertions. (Id. at 1-2.) Defendant has not responded to Plaintiff's Rule 7.1 Statement. Somewhat more problematic is the fact that, in support of each of his factual assertions, Plaintiff has cited an "Investigative File" by reference to "Tab" number and page number, but he has not filed the records on which he relies or provided any express indication as to whether he is relying on the same exhibits filed by Defendant in support of his motion for summary judgment. (Dkt. No. 65 at 1-2, ¶¶ 1-13.) This failure alone constitutes a sufficient basis for denying Plaintiff's motion. See N.D.N.Y. L.R. 7.1(a)(3) ("Each fact listed [in a movant's Statement of Material Facts] shall set forth a specific citation to the record where the fact is established.
However, the factual assertions in Plaintiff's Rule 7.1 Statement are (with a couple exceptions) virtually identical to facts asserted in Defendant's Rule 7.1 Statement, and the parties thus appear to largely rely on the same universe of material facts and supporting documents. (Compare Dkt. No. 64, Attach. 3 [Def.'s Rule 7.1 Statement] with Dkt. No. 65 at 1-2.) Accordingly, under the circumstances of this case (and in light of Plaintiff's status as a pro se civil rights litigant), the Court will deem Plaintiff's factual assertions to have been sufficiently supported where those assertions find support in the same record evidence filed and relied upon by Defendant.
The Court will not recite the entirety of Plaintiff's Rule 7.1 Statement (which, again, is virtually identical to Defendant's Rule 7.1 Statement and with which the parties are familiar). Instead, the Court addresses only the following two factual assertions.
Second, Plaintiff asserts that, "[i]n 2002 and again in 2004," he submitted a suggestion through the ESP "regarding outreach for the Earned Income Tax Credit (EITC) program." (Dkt. No. 65 at 2 ¶ 7.) However, to the extent that Plaintiff is referring to the same 2002 and 2004 suggestions referenced by Defendant in his Rule 7.1 Statement, it is not entirely clear from Plaintiff's "I Suggest Form" (dated June 11, 2002) that his suggestion involved only (or even primarily) the earned income tax credit. (Dkt. No. 64, Attach. 7, at GOV_ 283-85.) The content of the "I Suggest" form is discussed more fully supra, in note 6 of this Decision and Order. As a result, the Court will not treat as uncontroverted the fact asserted by Plaintiff.
Generally, in support of his motion, Defendant argues as follows: (1) to the extent that Plaintiff's discrimination claims are predicated on his 1997, 2002, and/or 2004 suggestions for minority student recruitment (or the failure to implement these suggestions), they are time-barred under 20 C.F.R. § 1614.105(a) because (a) Plaintiff did not "initiate EEO contact" until May 2010, and (b) any discriminatory motive behind the decision not to implement his suggestions would have accrued when his suggestions were rejected (and not when Plaintiff learned of a similar program having been implemented in a different office, years later); (2) Plaintiff waived and released any claims related to his suggestions for a minority student recruitment program as part of the 2007 settlement agreement with the IRS; (3) in any event, Defendant is entitled to judgment as a matter of law on Plaintiff's discrimination claims because (a) the fact that his suggestions for a minority recruitment program were not accepted or implemented did not constitute an adverse employment action (given that it had no bearing on the terms or conditions of his employment, job responsibilities, or pay), (b) the fact that he was charged with AWOL instead of being permitted to use LWOP also did not constitute an adverse employment action (given that LWOP is, by definition, unpaid, and Plaintiff has not alleged that he was terminated, demoted, or lost job opportunities due to being charged with AWOL), (c) Plaintiff has identified no direct evidence that he was subjected to discriminatory animus based on his race, age, or gender (such as that any comments were made about these characteristics, or that they were considered in any decision-making process related to his employment), (d) Plaintiff has identified no evidence suggesting that similarly situated employees were treated more favorably than he was (i.e., by receiving greater rewards for their suggestions, or being granted LWOP, rather than charged with AWOL, under circumstances similar to Plaintiff's), (e) Defendant had legitimate, non-discriminatory reasons for not implementing Plaintiff's suggestion, given that Plaintiff did not submit his suggestion through the ESP for formal evaluation in 2010, despite Albee's and Cain's suggestions that he do so, (f) Defendant had legitimate, non-discriminatory reasons for charging Plaintiff with AWOL, given that Plaintiff violated the IRS's leave policy when he (i) repeatedly called in late to work, even after exhausting all of his leave and using LWOP excessively, and (ii) provided only an undated doctor's note stating that his medication was "mak [ing] him feel tired and [that] he may need additional rest," and never provided additional documentation; and (4) Defendant is entitled to judgment as a matter of law on Plaintiff's retaliation claim because (a) for the same reasons discussed with respect to his discrimination claim, there is no evidence supporting the conclusion that he suffered an adverse employment action, or that any alleged actions taken by the IRS would not have occurred but-for his EEO complaint, and (b) his time and attendance records establish that he was frequently charged with AWOL many times both before and after he filed his EEO complaint. (Dkt. No. 64, Attach. 2, at 7-19 [Def.'s Memo. of Law].)
Generally, in reply, Defendant argues as follows: (1) because "the crux" of Plaintiff's discrimination claims took place in 1996 or 1997, these claims are time-barred and were waived pursuant to the 2007 settlement agreement; (2) Plaintiff's assertion that he did not learn until 2010 that his suggestion had been implemented is belied by the 2007 settlement agreement (which resolved his grievance, filed in 2005, that the IRS implemented his earlier suggestions without compensating him); (3) the failure to implement his suggestions did not constitute an adverse employment action, and Plaintiff has not identified any evidence that the terms or conditions of his employment were impacted; (4) an assertion of "a racial imbalance in the makeup of a workplace" is insufficient to establish discrimination; (5) with respect to Plaintiff's argument that his suggestion was implemented when submitted by white employees, Plaintiff has identified no evidence that any suggestions similar to his were ever made by a white employee, and accepted and implemented by the IRS; (6) Plaintiff's allegation that he was denied prepaid sick leave after he filed his EEO complaint must be rejected because (a) it was improperly asserted for the first time in his opposition to Defendant's motion for summary judgment, (b) he has identified no evidence supporting this claim, (c) his time records reflect that his usage of "various types of leave time" (i.e., both AWOL and LWOP) were similar both before and after he filed his EEO complaint, and (d) he does not contest that he was not present at work on the days at issue and did not have available leave time to cover those days. (Dkt. No. 70 [Def.'s Reply Ltr. Br.].)
Generally, liberally construing his memorandum of law, Plaintiff argues as follows: (1) he is a member of a protected class; (2) he was subjected to adverse employment actions in that (a) he was terminated from his position as Assistant Black Employment Manager, (b) he was denied monetary compensation for his suggestion to recruit low-income and minority students to the IRS, and (c) he was declared AWOL because he "engag[ed] in EEO activity"; (3) "[n]on-managerial employees under Floyd's authority" (who are white, but otherwise similarly situated to Plaintiff given their non-managerial positions) were "given EEO awards" for implementing Plaintiff's recruitment suggestion in other cities (namely, Buffalo, Syracuse, and Troy, New York), but Plaintiff was not awarded or compensated;
Under Fed. R. Civ. P. 56, summary judgment is warranted if "the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(a). A dispute of fact is "genuine" if "the [record] evidence is such that a reasonable jury could return a verdict for the [non-movant]." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
In determining whether a genuine issue of material fact exists, the Court must resolve all ambiguities and draw all reasonable inferences against the movant. Anderson, 477 U.S. at 255. In addition, "[the movant] bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the . . . [record] which it believes demonstrate[s] the absence of any genuine issue of material fact." Celotex v. Catrett, 477 U.S. 317, 323-24 (1986). However, when the movant has met its initial burden, the non-movant must come forward with specific facts showing a genuine issue of material fact for trial. Fed. R. Civ. P. 56(a), (c), (e).
Implied in the above-stated burden-shifting standard is the fact that, where a non-movant willfully fails to respond to a motion for summary judgment, a district court has no duty to perform an independent review of the record to find proof of a factual dispute.
Of course, when a non-movant willfully fails to respond to a motion for summary judgment, "[t]he fact that there has been no [such] response . . . does not . . . [by itself] mean that the motion is to be granted automatically." Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996). Rather, as indicated above, the Court must assure itself that, based on the undisputed material facts, the law indeed warrants judgment for the movant. Champion, 76 F.3d at 486; Allen v. Comprehensive Analytical Group, Inc., 140 F.Supp.2d 229, 232 (N.D.N.Y. 2001) (Scullin, C.J.); N.D.N.Y. L.R. 7.1(b)(3). What the non-movant's failure to respond to the motion does is lighten the movant's burden.
For these reasons, this Court has often enforced Local Rule 7.1(a)(3) by deeming facts set forth in a movant's statement of material facts to be admitted, where (1) those facts are supported by evidence in the record, and (2) the non-movant has willfully failed to properly respond to that statement.
After carefully considering the matter, and for the reasons that follow, the Court answers this question in the negative.
As noted above, Defendant argues that, "[t]o the extent that Plaintiff bases his discrimination claim on the alleged failure . . . to implement his 1997, 2002, and 2004 suggestions, those claims are time-barred" because he did not initiate EEO contact until May 2010 (and thus, more than 45 days after the allegedly discriminatory act). (Dkt. No. 64, Attach. 2, at 7 [Def.'s Memo. of Law].) In response, Defendant argues that his discrimination claim is not time-barred because "he could not allege discrimination until he became aware of a discriminating act," which, in this case, was the "implementation" of a program that he had suggested in Troy, New York. (Dkt. No. 67 at 3 [Plf.'s Opp'n to Def.'s Mtn.]; see also Dkt. No. 65 at 5-6 [Plf.'s Mtn.] ["Plaintiff assumed his [1997] suggestion had not been implemented until he read a newspaper article in 2010 about the implementation of his suggestion at Catholic High School in Troy, New York."].) Plaintiff asserts that his discrimination claim is "not based on [the IRS's]
To the extent that Plaintiff's discrimination claim may be understood to be predicated solely upon the rejection of his suggestion as first made in 1996 or 1997, Defendant is correct that his claim is time-barred under 29 C.F.R. § 1614.105(a)(1). (Dkt. No. 64, Attach. 2, at 7-8 [Def.'s Memo. of Law].) However, Plaintiff asserts that this is not his claim (i.e., that he is not claiming that the IRS's rejection of his suggestion approximately 20 years ago was, in itself, due to an animus related to his race, gender, or age). Rather, Plaintiff argues that Defendant discriminated against him by implementing the same suggestion that he made (more than 10 years ago and as many as 20 years ago), when made by "employees who are white, young and female" at some later point in time. (Dkt. No. 67 at 3.) The Court finds this distinction (seemingly drawn for the purpose of avoiding Defendant's limitations-period argument) to be, at least in part, a semantical distinction. An award given to other employees for an implemented suggestion, considered in isolation, would appear to have relation to, or effect upon, Plaintiff or his employment. What Plaintiff appears to be arguing is (1) that Defendant's discriminatory animus only manifested itself when Defendant allegedly implemented Plaintiff's suggestion after it was suggested by other (young, white, female) employees, (2) that he only learned of this fact in 2010, when he read the 2010 article, and (3) that, for this reason, the EEOC's 45-day rule should be tolled. The Court is skeptical of this argument because the "personnel action," at least arguably, occurred in 1996/1997. However, under the circumstances (and for the sake of argument), the Court will assume that Plaintiff has raised a genuine dispute of material fact with respect to whether "he did not know and reasonably should not have . . . known that the discriminatory matter or personnel action occurred" such that tolling under 29 C.F.R. § 1614.105(a)(2) is appropriate.
As noted above, Defendant argues that, pursuant to the 2007 settlement agreement (which resolved his 2005 grievance), Plaintiff waived his present discrimination claims. (Dkt. No. 64, Attach. 2, at 8-10 [Def.'s Memo. of Law].) However, the settlement agreement dealt expressly with the suggestion that he submitted on June 11, 2002, "and subsequent suggestions related to" that suggestion. (Dkt. No. 64, Attach. 9, at GOV_271.) As discussed above, Plaintiff's June 11, 2002, suggestion does not appear to bear any relation to minority recruiting, which is the subject of his EEO complaint and Second Amended Complaint. Moreover, a copy of Plaintiff's 2005 grievance does not appear to have been filed by either party in support of their respective motions. While the settlement agreement contains a very broad provision requiring Plaintiff to "waive any and all rights or claims as to matters raised in the instant grievance, and all other outstanding or potential complaints [or] grievances . . . not otherwise identified herein arising from matters occurring prior to" its execution, it also provided that Plaintiff "does not waive any rights of claims that may arise after the date" of its execution. (Dkt. No. 64, Attach. 9, at GOV_272, ¶ 7[c], [d] [emphasis added].) "In the absence of a clear right or obligation set forth in the language of a contract—and a settlement agreement is a contract—a court should not lightly find an implied right or obligation." Dash v. Bd. of Educ. of City Sch. Dist. of New York, 15-CV-2013, 2017 WL 838226, at *10 (E.D.N.Y. Mar. 3, 2017) (internal quotation marks omitted).
Accordingly, the Court cannot conclude, as a matter of law and based upon the record evidence before it, that Plaintiff waived his right to assert his present (federal statutory) discrimination claims by entering into the settlement agreement, which dealt with an apparently unrelated grievance.
However, the Court reaches a different conclusion with respect to his 2002 and 2004 suggestions. In his opposition (which, in any event, contains arguments related to his 1996/1997 suggestion, and not his 2002/2004 suggestions), Plaintiff expressly acknowledges that the 2007 settlement agreement "pertained to the Earned Income Tax Program." (Dkt. No. 67 at 1.) Moreover, in his Second Amended Complaint, Plaintiff alleges that he received compensation after settling his grievance related to the 2002 suggestion. (Dkt. No. 55 at 4.) As a result, to the extent that Plaintiff may be understood to argue that the IRS's refusal to implement his 2002 suggestion was discriminatory, he has waived this claim. Moreover, even if Plaintiff had not waived this claim, the Court would lack jurisdiction over it because his EEO complaint referenced only IRS management's alleged failure to implement his "suggestion to provide short-term and long-term recruitment for low-income and minority students" (and made no reference to any other suggestion he has ever submitted). (Dkt. No. 64, Attach. 14, at GOV_62.) See also Fitzgerald, 251 F.3d at 359 ("If a claimant has failed to pursue a given claim in administrative proceedings, the federal court generally lacks jurisdiction to adjudicate that claim."). Finally, even if Plaintiff had not waived any claim related to his 2002/2004 suggestions and the Court had jurisdiction over such a claim, Plaintiff has failed to adduce evidence from which a factfinder could reasonably infer that the failure to implement those suggestions was the result of discriminatory animus.
First, the Court finds that the record does not contain any basis from which it may be reasonably inferred that Plaintiff was subjected to an adverse employment action for purposes of his discrimination claim. "An adverse employment action is `a materially adverse change in the terms and conditions of employment,' for example, `termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices unique to a particular situation.' Rowe v. Jagdamha, Inc., 302 Fed.Appx. 59, 62 (2d Cir. 2008) (quoting Sanders v. N. Y. City Human Res. Admin., 361 F.3d 749, 755 [2d Cir. 2004] [quotation marks and alteration omitted]). Even assuming that the denial of such a monetary award for an employee suggestion through the ESP may, under certain circumstances, constitute an adverse employment action, the record does not support the conclusion that Plaintiff was entitled to such an award here. More specifically, in his opposition to Defendant's motion, Plaintiff asserts that (1) the ESP did not exist in 1996 or 1997 (i.e., at the time he made his minority recruitment suggestion), and (2) the 2007 settlement agreement (which concerned Plaintiff's 2002 and 2004 ESP suggestions) "did not pertain . . . to minority recruitment." (Dkt. No. 67 at 2-3.) Considering Plaintiff's assertions in combination with the fact that he did not submit his minority recruitment suggestion through the ESP in 2010 (when he discussed his suggestion with Albee and Cain, who suggested that he do so) (Fact. No. 17 in
For each of these reasons, as well as those set forth in Defendant's memorandum of law and reply letterbrief, the Court concludes that Defendant is entitled to judgment as a matter of law with respect to Plaintiff's discrimination claims.
After carefully considering the matter, the Court answers this question in the affirmative for the reasons set forth in Defendant's memorandum of law and reply letter-brief. (Dkt. No. 64, Attach. 2, at 17-19 [Def.'s Memo. of Law]; Dkt. No. 70 at 1-2 [Def.'s Reply Ltr. Br.].) To those reasons, the Court adds two points.
First, although filing an EEO complaint (as Plaintiff did here) constitutes a protected activity, Plaintiff has not identified any evidence from which it may be reasonably inferred that his being charged with AWOL (rather than receiving LWOP) on the dates in question constitutes a materially adverse action for purposes of his retaliation claim. See Hicks v. Baines, 593 F.3d 159, 165 (2d Cir. 2010) ("Actions are materially adverse if they are harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination.") (internal quotation marks omitted). Although the IRS's Leave Policy Handbook contemplates that "AWOL is not considered a disciplinary action [but] may form the basis for future disciplinary action" (Dkt. No. 64, Attach. 18, at GO V_387), the record does not support the conclusion that Plaintiff was disciplined or that he was terminated, was demoted, or suffered any other employment-related consequences as a result of being charged with AWOL on the dates at issue (or, for that matter, on any dates). Simply stated, being charged with AWOL would not have dissuaded a reasonable worker from making or supporting a charge of discrimination.
For each of these reasons, as well as those set forth in Defendant's memorandum of law and reply letter-brief, the Court concludes that Defendant is entitled to judgment as a matter of law with respect to Plaintiff's retaliation claim.
Based upon the foregoing, the Court concludes that Defendant has established its entitlement to summary judgment with respect to each of Plaintiff's claims, and, in response, Plaintiff has failed to raise a dispute of material fact. Defendant's motion for summary judgment is therefore granted, and Plaintiff's motion for summary judgment is denied.
N.D.N.Y. L.R. 7.1(a)(3).
