GLENN T. SUDDABY, Chief District Judge.
Currently before the Court, in these consolidated prisoner civil rights actions filed by ten inmates ("Plaintiffs") against ten individuals employed by the New York State Department of Corrections and Community Supervision at Bare Hill Correctional Facility in Malone, New York, is a motion for partial summary judgment filed by Corrections Officer David Hughes and Corrections Lieutenant Terrence White ("Defendants"). (Dkt. No. 39.) For the reasons set forth below, Defendants' motion is denied with regard to Plaintiffs' claim against Defendant Hughes but granted with regard to Plaintiffs' claim against Defendant White.
Generally, Plaintiffs' Complaints allege, inter alia, that Defendant Hughes subjected Plaintiffs to cruel and unusual punishment under the Eighth Amendment when, on February 7, 2013, he assisted other correctional officers in recklessly requiring Plaintiffs to take off their gloves and place their bare hands on a metal fence in freezing temperature for approximately thirty minutes until one of them came forward with information regarding an altercation that had occurred between inmates (under the pretext of subjecting the inmates to a pat-frisk), causing them to suffer severe frostbite and nerve damage. The Complaints further allege, inter alia, that Defendant Terry is liable under the Eighth Amendment because, after being informed of the constitutional violation through Plaintiffs' grievances, he failed to remedy the violation, but rather categorically denied the grievances on the ground that Plaintiffs should have worn their gloves (despite their allegation that they were forced to remove their gloves), thus deeming Hughes' conduct to be appropriate and ratifying it.
Because this Decision and Order is intended primarily for the review of the parties, the Court will assume the reader's familiarity with particular nature of the Complaints' claims and supporting factual allegations, and will respectfully refer the reader to Part I.B. of the Court's Decision and Order of August 5, 2015, in Pierce v. Demmon, 14-CV-1028 (N.D.N.Y.) (Suddaby, J.), which accurately summarizes those claims and allegations.
Generally, in their memorandum of law, Defendants assert two arguments: (1) based on the current record, no reasonable jury could conclude that Defendant Hughes subjected Plaintiffs to cruel and unusual punishment, because, inter alia, (a) he did not give any direct orders to Plaintiffs regarding the pat-frisks, (b) he was 50 to 70 yards away from the inmates while they were pat-frisked by other corrections officers, (c) the extent of his personal involvement in the pat-frisks was returning with the inmates' identification cards (after compiling a list of the inmates assembled) and assisting with one or two final pat-frisks, and (d) there is no claim that Defendant Hughes failed to intervene in the cruel and unusual punishment allegedly inflicted by other corrections officers; and (2) based on the current record, Defendant White is protected from liability as a matter of law by the doctrine of qualified immunity, because (a) during the time in question, it was not clearly established (i.e., with reasonable clarity by either the Supreme Court or Second Circuit) that a supervisor is liable for investigating and denying a grievance regarding an assault in which the supervisor was not personally involved, and (b) there is no objective evidence that White had any reason to believe that his investigation violated clearly established law or that he acted with malice or bad faith in denying Plaintiffs' grievances. (Dkt. No. 39, Attach. 14.)
Generally, in their opposition memorandum of law, Plaintiffs assert two arguments: (1) Plaintiffs' claim against Defendant Hughes should not be dismissed because (a) Hughes admits that he saw inmates with their ungloved hands on the fence, (b) his testimony that he did not hear any inmates complain while on the fence is undermined by admissible record evidence that inmates, including Plaintiffs, were complaining during the time in question, (c) he admits he was involved in at least some of the pat-frisks on the evening in question, and (d) Defendants Demmon, Hough and LaBarge admitted that Hughes was involved in the pat-frisks in question; and (2) a jury should decide whether Defendant White is entitled to qualified immunity, because (a) the law conferring liability on a supervisor for reviewing and denying a grievance is clearly established, as previously recognized by the Court in Part IV.A.1. of its Decision and Order of August 5, 2015, in Pierce v. Demmon, 14-CV-1028 (N.D.N.Y.) (Suddaby, J.), and (b) Defendants have not met their burden of establishing that White's actions were objectively reasonable, given the lack of documents evidencing that some of the inmates told White they did not have gloves, the fact that Plaintiffs will be entitled to a spoliation instruction regarding missing documents and video footage, and the undisputed fact that all of the inmates were required to remove their gloves. (Dkt. No. 45, Attach. 23.)
Generally, in their reply memorandum of law, Defendants assert two arguments: (1) contrary to arguing that Defendant Hughes did not participate in any of the pat-frisks during the evening in question, Defendants argue that Hughes' participation was limited to possibly participating in two or three pat-frisks at the conclusion of the incident, which pat-frisks may not have been of Plaintiffs (who were only 50% of the 20 inmates assembled that evening), and which participation in any event is so de minimis as to be insufficient to confer on him liability under the Eighth Amendment; and (2) contrary to Plaintiffs' argument, during the time in question there was no clearly established law conferring liability on a supervisor for investigating and denying grievances related to events that the supervisor could not have remedied (because those events were no longer ongoing at the time of the investigation and denial). (Dkt. No. 47.)
Generally, unless otherwise noted, the following facts were asserted and supported by Defendants in their Rule 7.1 Statement and admitted by Plaintiffs in their Rule 7.1 Response.
1. On February 7, 2013, all of the Plaintiffs in the lead case, and all the Plaintiffs in the member cases, were inmates in the custody of the New York State Department of Corrections and Community Supervision at Bare Hill Correctional Facility ("Bare Hill C.F.") in Malone, New York.
2. In February of 2013, Defendant David Hughes was a corrections officer at Bare Hill C.F.
3. Also in February of 2013, Defendant Terrence White was a corrections lieutenant at Bare Hill C.F.
4. On the evening of February 7, 2013, it was approximately zero degrees Fahrenheit at Bare Hill C.F.
5. On that same evening, Defendant Hughes was assigned to man the "J-Rec" guard shack "J-Rec shack"), which is located adjacent to the walkway (i.e., sidewalk) that parallels the road leading from the "main" portion of Bare Hill C.F. to the Bare Hill C.F. "Annex."
6. Also on that evening, Defendant Hughes observed an inmate step off the walkway and come toward the J-Rec shack.
7. According to Defendant Hughes, the inmate had sustained "a big gaping cut on his face."
8. Once Defendant Hughes had ascertained that the injured inmate had been assaulted, Defendant Hughes called for assistance and had all movement within the facility stopped.
9. A few minutes after Defendant Hughes reported that an inmate had been assaulted in the vicinity of the J-Rec shack, Sgt. Craig Demmon arrived at that location.
10. Upon Sgt. Demmon's arrival, Defendant Hughes collected identification cards from the inmates who had been assembled along the Bare Hill C.F. recreation yard perimeter fence, in the area adjacent to the "compound gate," leading to the Bare Hill C.F. Annex.
11. Defendant Hughes estimates there were approximately twenty (20) inmates assembled along the Bare Hill C.F. recreation yard perimeter fence.
12. The lead Plaintiff, Jamal Bertrand, also estimated there were 20 inmates stopped and pat-frisked on the evening in question.
13. According to Defendant Hughes, while the inmates were being assembled along the Bare Hill C.F. recreation yard perimeter fence on the night in question, Defendant Hughes did not hear any initial instructions being given to the inmates by Sgt. Demon, or Corrections Officers Hough and LaBarge, who were also present.
14. After collecting the inmates' identification cards, Defendant Hughes returned to his post in the J-Rec Shack, which he approximates is about 50 to 70 yards from where the inmates were being assembled along the Bare Hill C.F. recreation yard perimeter fence.
15. After returning to his J-Rec shack, Defendant Hughes observed some of the assembled inmates being pat-frisked from the shack, 50 to 70 yards away.
16. While in the J-Rec shack, Defendant Hughes compiled a list of the inmates assembled along the Bare Hill C.F. recreation yard perimeter fence.
17. According to Defendant Hughes, it took him approximately 10 minutes to compile the list of inmates being pat-frisked.
18. Upon completing the list of inmates being detained near the compound gate, Defendant Hughes left the J-Rec shack, and returned to the area where the inmates were being pat-frisked.
19. When he returned to the compound gate area, Defendant Hughes observed inmates lined up against the main recreation yard fence being pat-frisked.
20. According to Defendant Hughes, he pat-frisked only "two to three [inmates] at the most."
21. According to Defendant Hughes, he did not hear any inmates complain about the cold or pain in their hands.
22. After the pat-frisks were completed, the inmates were directed to line up to go through the compound gate metal detector.
23. According to Defendant Hughes, he spent only five to six minutes pat-frisking the inmates.
24. According to Defendant Hughes, he was "absent from the vicinity of the [patfrisks of inmates by Officers LaBarge and Hough] for much of the time [the pat-frisks] went on."
25. As conceded by Plaintiffs (through their counsel during a deposition), Defendant Hughes is a "person who is not out to inflict pain on people . . . just gratuitously. . . ."
26. On February 12, 2013, Plaintiff Alexander Santos filed Bare Hill C.F. Grievance No. 12988 alleging staff misconduct and abuse on February 7, 2013, which resulted in his suffering frostbite injuries.
27. On February 12, 2013, Plaintiff Jose Salas filed Bare Hill C.F. Grievance No. 13011 alleging staff misconduct and abuse on February 7, 2013, which resulted in his suffering frostbite injuries.
28. On February 13, 2013, Plaintiff Elisha Jackson filed Bare Hill C.F. Grievance No. 12989 alleging staff misconduct and abuse on February 7, 2013, which resulted in his suffering frostbite injuries.
29. On February 14, 2013, Plaintiff Shane Gordon filed Bare Hill C.F. Grievance No. 12999 alleging staff misconduct and abuse on February 7, 2013, which resulted in his suffering frostbite injuries.
30. On February 14, 2013, Plaintiff Laquan Thompson filed Bare Hill C.F. Grievance No. 12997 alleging staff misconduct and abuse on February 7, 2013, which resulted in his suffering frostbite injuries.
31. On February 14, 2013, Plaintiff Rashid Evans filed Bare Hill C.F. Grievance No. 12998 alleging staff misconduct and abuse on February 7, 2013, which resulted in his suffering frostbite injuries.
32. On February 19, 2013, Plaintiff Jamal Bertrand filed Bare Hill C.F. Grievance No. 13003 alleging staff misconduct and abuse on February 7, 2013, which resulted in his suffering frostbite injuries.
33. On February 19, 2013, Plaintiff Jamel Weaver filed Bare Hill C.F. Grievance No. 13000 alleging staff misconduct and abuse on February 7, 2013, which resulted in his suffering frostbite injuries.
34. On February 19, 2013, Plaintiff Jonathan Hines filed Bare Hill C.F. Grievance No.13004 alleging staff misconduct and abuse on February 7, 2013, which resulted in his suffering frost bite injuries.
35. Corrections Lt. Terrence White was not at Bare Hill C.F. when Plaintiffs were being pat-frisked near the annex gate on the evening of February 7, 2013.
36. After he came on duty the evening of February 7, 2013, Defendant White was made aware of the assault and subsequent pat-frisks that took place before he arrived at Bare Hill C.F. earlier in the day.
37. On or about the period February 13 through February 20, 2013, Defendant White was assigned, by Corrections Captain Gallagher, to investigate the events of February 7, 2013, including Plaintiffs' grievances related to the events on that evening.
38. On February 18, 2013, Defendant White submitted his report to Captain Gallagher, from his investigation of Plaintiff Santos' inmate grievance concerning the events of February 7, 2013, at Bare Hill C.F.; Defendant White recommended that the grievance be denied.
39. On February 18, 2013, Defendant White submitted his report to Captain Gallagher, from his investigation of Plaintiff Elisha Jackson's inmate grievance concerning the events of February 7, 2013, at Bare Hill C.F.; Defendant White recommended that the grievance be denied.
40. On February 18, 2013, Defendant White submitted his report to Captain Gallagher, from his investigation of Plaintiff Gordon's inmate grievance concerning the events of February 7, 2013, at Bare Hill C.F.; Defendant White recommended that the grievance be denied.
41. On February 18, 2013, Defendant White submitted his report to Captain Gallagher, from his investigation of Plaintiff Thompson's inmate grievance concerning the events of February 7, 2013, at Bare Hill C.F.; Defendant White recommended that the grievance be denied.
42. On February 18, 2013, Defendant White submitted his report to Captain Gallagher, from his investigation of Plaintiff Evans' inmate grievance concerning the events of February 7, 2013, at Bare Hill C.F.; Defendant White recommended that the grievance be denied.
43. On February 23, 2013, Defendant White submitted his report to Captain Gallagher, from his investigation of Plaintiff Hines; inmate grievance concerning the events of February 7, 2013, at Bare Hill C.F.; Defendant White recommended that the grievance be denied.
44. On February 23, 2013, Defendant White submitted his report to Captain Gallagher, from his investigation of Plaintiff Bertrand's inmate grievance concerning the events of February 7, 2013, at Bare Hill C.F.; Defendant White recommended that the grievance be denied.
45. On February 25, 2013, Defendant White submitted his report to Captain Gallagher, from his investigation of Plaintiff Weaver's inmate grievance concerning the events of February 7, 2013, at Bare Hill C.F.; Defendant White recommended that the grievance be denied.
46. On February 26, 2013, Defendant White submitted his report to Captain Gallagher, from his investigation of Plaintiff Santos' inmate grievance concerning the events of February 7, 2013, at Bare Hill C.F.; Defendant White recommended that the grievance be denied.
47. Defendant White was not present during the pat-frisks and has no personal knowledge whether the inmates were ordered to grasp the metal main yard fence, with their bare hands, for the entire time the pat-frisks were being conducted.
48. Based on his interviews with the inmates, Defendant White did not believe the inmates' claims that their hands were against the fence for the whole time the incident was taking place and that they were not allowed to put their hats and gloves back on.
49. In Defendant White's opinion, Plaintiffs were not properly dressed for the very cold weather conditions on the night in question.
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.
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.
Similarly, in this District, where a non-movant has willfully failed to respond to a movant's properly filed and facially meritorious memorandum of law, the non-movant is deemed to have "consented" to the legal arguments contained in that memorandum of law under Local Rule 7.1(b)(3).
Because the parties have (in their memoranda of law) already demonstrated an adequate understanding of the legal standard governing Plaintiffs' claims of cruel and unusual punishment and supervisory liability, the Court will not recite in detail those standards in this Decision and Order, which is intended primarily for the review of the parties.
After carefully considering the matter, the Court denies Defendants' motion with regard to Plaintiffs' claim against Defendant Hughes for the reasons stated in Plaintiffs' opposition memorandum of law, but grants Defendants' motion with regard to Plaintiffs' claim against Defendant White for the reasons stated in Defendants' memoranda of law. See, supra, Part I.B. of this Decision and Order. To those reasons, the Court adds the following analysis.
Regarding Plaintiffs' claim against Defendant Hughes, the Court finds that admissible record evidence exists from which a rational fact-finder could conclude that (1) Hughes was conducting pat-frisks when Defendants Hough and LaBarge arrived,
Regarding Plaintiffs' claim against Defendant White, the Court begins by finding that the Court's prior ruling does not compel its current ruling because the Court's prior ruling regarded whether Defendant White was personally involvement in the constitutional violation alleged pursuant to the standard set forth in Fed. R. Civ. P. 12(b)(6), while the Court's current ruling regards whether Defendant White is protected from liability as a matter of law by the doctrine of qualified immunity pursuant to the standard set forth in Fed. R. Civ. P. 56. The difference between a finding of personal involvement and a finding of qualified immunity is significant, because the former does not preclude the latter.
The Court also finds merit to each of the alternative qualified-immunity arguments advanced by Defendants: (1) as a threshold matter, regardless of how the Court previously resolved the close question of Defendant White's personal involvement in the constitutional violation alleged, the Court now finds that, in February of 2013, it was not clearly established that a supervisor could be liable for failing to remedy a violation that was no longer occurring (after being informed it through a grievance);
