ANDREW T. BAXTER, Magistrate Judge.
This matter has been referred to me for Report and Recommendation, pursuant to 28 U.S.C. § 636(b) and Local Rules N.D.N.Y. 72.3(c). This action was originally filed by plaintiff in the Western District of New York on January 25, 2017. (Dkt. No. 1). Defendant's motion to transfer the case to the Northern District of New York was granted on August 14, 2018, and the case was transferred on September 18, 2018. (Dkt. Nos. 25, 26). Plaintiff's motion for "default judgment" was denied on October 29, 2018, and a Mandatory Pretrial Discovery and Scheduling Order was issued by this court on November 8, 2018. (Dkt. Nos. 29, 30). Plaintiff's motion for reconsideration was denied on January 28, 2019. (Dkt. No. 34).
Presently before this court is the defendant's motion for summary judgment pursuant to Fed. R. Civ. P. 56. (Dkt. No. 36). Plaintiff has responded in opposition to the motion, and defendant has replied. (Dkt. Nos. 38, 39). On September 3, 2019, this court accepted plaintiff's "sur-reply" and has considered the arguments therein. (Dkt. Nos. 41, 42). For the following reasons, this court agrees with defendant and will recommend dismissal of the complaint.
Summary judgment is appropriate where there exists no genuine issue of material fact and, based on the undisputed facts, the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56; Salahuddin v. Goord, 467 F.3d 263, 272-73 (2d Cir. 2006). "Only disputes over ["material"] facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). It must be apparent that no rational finder of fact could find in favor of the non-moving party for a court to grant a motion for summary judgment. Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1224 (2d Cir. 1994).
The moving party has the burden to show the absence of disputed material facts by informing the court of portions of pleadings, depositions, and affidavits which support the motion. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). 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. Salahuddin v. Goord, 467 F.3d at 273. In that context, 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, 586 (1986). However, 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); Salahuddin, 467 F.3d at 272.
In his complaint, plaintiff alleges that on August 18, 2016, he was incarcerated in C-Block at Auburn Correctional Facility. (Complaint ("Compl.") at 5). Plaintiff states that defendant Regner was "upset" because plaintiff was incarcerated for a crime that defendant Regner "disliked." Plaintiff states that defendant Regner came to plaintiff's cell at approximately 2:00 a.m. and "spat multiple times on [him]." (Id.) Defendant Regner then left, but came back shortly thereafter and threw an "unknown substance" on plaintiff which immediately irritated plaintiff's skin, causing itching, burning, reddening, discoloration, and a rash. (Id.)
Plaintiff states that he is asserting "Failure to Protect," which this court has interpreted as an Eighth Amendment excessive force/cruel and unusual punishment claim. Plaintiff seeks ninety million dollars in damages for his injuries. (Id.)
Defendant's recitation of the events of August 18, 2016 is very different than plaintiff's description. Defendant Regner states that he was working the overnight shift, assigned to C-Block, and at approximately 2:05 a.m., during one of his rounds of the block, defendant Regner noticed that plaintiff had a blanket hanging from his cell gate which was obstructing the view into plaintiff's cell. (Regner Decl. ¶ 6) (Dkt. No. 36-10). It is against facility rules to obstruct visibility into an inmate's cell, room, or cube. Defendant Regner gave plaintiff a direct order to remove the blanket. (Id.) However, plaintiff refused to do so. (Id.) After plaintiff refused to remove the blanket, defendant Regner removed the blanket himself by grasping it from outside plaintiff's cell. (Regner Decl. ¶ 7). As defendant Regner took the blanket down, plaintiff threw the contents of a lotion bottle on defendant Regner.
As a result of plaintiff's conduct, defendant wrote a misbehavior report against the plaintiff. The misbehavior report described the incident and charged plaintiff with six rule violations, including refusing a direct order, disorderly conduct, obstructing the visibility into his cell, and assault. (Regner Decl. ¶ 8 & Ex. A). The misbehavior report indicates that plaintiff was taken to the Special Housing Unit ("SHU") as a result of the incident. (Regner Decl. Ex. A) (Dkt. No. 36-11). Defendant Regner asserts that he did not verbally harass or physically assault plaintiff in any way, nor did he ever throw any type of substance on plaintiff.
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 civil rights action. The exhaustion 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.
The failure to exhaust is an affirmative defense that must be raised by the defendants. Jones v. Bock, 549 U.S. 199, 216 (2007); Johnson v. Testman, 380 F.3d 691, 695 (2d Cir. 2004). As an affirmative defense, it is the defendants' burden to establish that plaintiff failed to meet the exhaustion requirements. See, e.g., Key v. Toussaint, 660 F.Supp.2d 518, 523 (S.D.N.Y. 2009) (citations omitted).
The Supreme Court has held that in order to properly exhaust an inmate's administrative remedies, the inmate must complete the administrative review process in accordance with the applicable state rules. Jones, 549 U.S. at 218-19 (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.
The grievance procedure in New York is a three-tiered process. The inmate must first file a grievance with the Inmate Grievance Resolution Committee ("IGRC"). N.Y. Comp. Codes R. & Regs., tit. 7 §§ 701.5(a)(1) and (b). An adverse decision of the IGRC may be appealed to the Superintendent of the Facility. Id. § 701.5(c). Adverse decisions at the Superintendent's level may be appealed to the Central Office Review Committee ("CORC"). Id. § 701.5(d). The court also notes that the regulations governing the Inmate Grievance Program encourage the inmate to "resolve his/her complaints through the guidance and counseling unit, the program area directly affected, or other existing channels (informal or formal) prior to submitting a grievance." Id. § 701.3(a) (Inmate's Responsibility). There is also a special section for complaints of harassment. Id. § 701.8. Complaints of harassment are handled by an expedited procedure which provides that such grievances are forwarded directly to the Superintendent of the facility, after which the inmate must appeal any negative determination to the CORC. Id. §§ 701.8(h) & (i), 701.5.
Until recently, the Second Circuit utilized a three-part inquiry to determine whether an inmate had properly exhausted his administrative remedies. See Brownell v. Krom, 446 F.3d 305, 311-12 (2d Cir. 2006) (citing Hemphill v. State of New York, 380 F.3d 680, 686 (2d Cir. 2004). The Hemphill inquiry asked (1) whether the administrative remedies were available to the inmate; (2) whether defendants' own actions inhibiting exhaustion estops them from raising the defense; and (3) whether "special circumstances" justify the inmate's failure to comply with the exhaustion requirement. Id.
The Supreme Court has now made clear that courts may not excuse a prisoner's failure to exhaust because of "special circumstances." Ross v. Blake, ___ U.S. ___, 136 S.Ct. 1850, 1857 (June 6, 2016). "`[M]andatory exhaustion statutes like the PLRA establish mandatory exhaustion regimes, foreclosing judicial discretion.'" Riles v. Buchanan, 656 F. App'x 577, 580 (2d Cir. 2016) (quoting Ross, ___ U.S. at ___, 136 S. Ct. at 1857). Although Ross has eliminated the "special circumstances" exception, the other two factors in Hemphill — availability and estoppel — are still valid. The court in Ross referred to "availability" as a "textual exception" to mandatory exhaustion, and "estoppel" has become one of the three factors in determining availability. Ross, ___ U.S. at ___, 136 S. Ct. at 1858. Courts evaluating whether an inmate has exhausted his or her administrative remedies must focus on whether those remedies were "available" to the inmate. Id; see also Riles, 2016 WL 4572321 at *2. Defendants bear the burden of proving the affirmative defense of failure to exhaust. Williams v. Priatno, 829 F.3d 118, 122 (2d Cir. 2016).
Defendant argues that plaintiff failed to exhaust his administrative remedies because he never filed a grievance regarding the alleged "assault," notwithstanding his prior knowledge and use of the grievance process. Defendant supports his argument with a declaration from Cheryl Parmiter, the IGP Supervisor at Auburn. (Parmiter Decl. ¶ 1) (Dkt. No. 36-3). IGP Supervisor Parmiter states that plaintiff successfully attended Auburn's orientation program, wherein inmates are introduced to grievance procedures and how to use them at Auburn, including how the grievance program may be accessed by inmates incarcerated in a Special Housing Unit ("SHU"). (Parmiter Decl. ¶¶ 6, 11 & Ex. A).
IGP Supervisor Parmiter also states that she reviewed plaintiff's grievance files, and that plaintiff never filed a grievance related to the claim that he was assaulted by defendant Regner on August 18, 2016 at Auburn. (Parmiter Decl. ¶ 15). However, on August 25, 2016, plaintiff filed a grievance — AUB-69938-16 — in which he complained that his property was not given to him when he was brought to SHU on August 18, 2016, after defendant Regner issued the misbehavior report. (Parmiter Decl. ¶ 16 & Ex. D). A review of the grievance shows that it is coherent, detailed, and expresses great concern for his property. (Parmiter Decl. Ex. D). In fact, plaintiff went to great lengths to list each item of missing property, together with the cost of each item. (Ex. D at 1-3). Plaintiff also claimed that the officer who packed the property, C.O. Thomas, "purposely discarded everything that was of value to me." (Id. at 4). There is no mention of the alleged assault or the incident which was the reason that plaintiff was brought to SHU on August 18, 2016. The IGRC investigated plaintiff's allegations and sent the findings to plaintiff on September 1, 2016. (Id. at 5-6).
Defendant has also filed the declaration of Rachael Seguin, the Assistant Director of the IGP for the New York State Department of Corrections and Community Supervision ("DOCCS"). (Seguin Decl.) (Dkt. No. 36-6). Assistant Director Seguin is the custodian of the records maintained by the CORC. (Seguin Decl. ¶ 3). Her records reflect that plaintiff was incarcerated at Auburn from March 16, 2015 until September 22, 2016. (Seguin Decl. ¶ 14). Assistant Director Seguin's records show that, from 2015 until the date of Seguin's declaration, the plaintiff appealed a total of four grievances to the CORC, including two grievances that plaintiff filed at Auburn prior to the August 18, 2016 incident. (Seguin Decl. ¶ 14 & Ex. A).
Assistant Director Seguin's Exhibit A shows that, on October 10, 2015, while incarcerated at Auburn, plaintiff filed a grievance complaining about disciplinary policies, and that on June 1, 2016, plaintiff filed a grievance complaining about a search and seizure. (Seguin Decl. Ex. A at 2). Each of these grievances was appealed to the CORC. On December 27, 2016, after plaintiff was moved to Southport Correctional Facility, he filed a grievance related to religion, and on September 26, 2017, plaintiff filed a grievance relating to "staff conduct." (Id.) Each of these grievances was appealed to the CORC. However, there are no appeals of any grievances relating to the alleged assault by defendant Regner which, according to plaintiff, occurred on August 18, 2016. The court notes that it appears that plaintiff did not appeal the August 25, 2016 property-related grievance to the CORC.
It is clear that plaintiff was well aware of the grievance program and its appeal procedures, using them before and after the incident in question. It is also clear from the records that plaintiff did
Plaintiff does not seriously oppose the defendant's argument. Rather, plaintiff claims that the grievance program was "unavailable" to him, excusing his failure to exhaust.
At his deposition, plaintiff insisted that he tried to file several grievances regarding the incident in question, but none of them were answered. (Pl.'s Dep. at 107-122). Plaintiff claimed that he tried to file a grievance on August 18, 25, and 31.
The August 25
Plaintiff states that when he realized that he was not getting a response to his grievances, he asked an unknown sergeant, but claims that the unidentified sergeant threatened him. This alleged threat "prevented" him from pursuing his grievances. Plaintiff submits that his attempts to file grievances after he was transferred out of Auburn shows that he was deterred by the sergeant's threat from following up on the failure of prison officials at Auburn to respond to his grievances. (Pl.'s Exs. at 19-20) (Dkt. No. 38-1).
In Ross v. Blake, the Supreme Court made it clear that if prison administrators "thwart" inmates from taking advantage of the grievance process through "machination, misrepresentation, or intimidation," the administrative remedy will be considered "unavailable." 136 S. Ct. at 1859-60. However, the Second Circuit has recently reaffirmed that where there has been no affirmative action by prison staff actually preventing prisoners from pursuing administrative remedies, those remedies are not unavailable under the PLRA. Grafton v. Hesse, No. 17-3346, ___ F. App'x ___, 2019 WL 4071753, at *1 (2d Cir. Aug. 29, 2019) (citing Ruggiero v. Cty. of Orange, 467 F.3d 170, 178 (2d Cir. 2006)).
In Grafton, although plaintiffs alleged that prison officials put them "`under threat of retaliation,'" they admitted to filing subsequent grievances. Id. Thus, the court held that "staff members' intimidation had not made the prison grievance system unavailable to Grafton." Id. In addition, a general fear of retaliation is insufficient to render the grievance process unavailable. Lapierre v. LaValley, No. 9:15-CV-1499, 2019 WL 4015689, at *6 (N.D.N.Y. Aug. 26, 2019) (Rep't-Rec.) (citing Brown v. Napoli, 687 F.Supp.2d 295, 297 (W.D.N.Y. 2009)).
While the "general fear of retaliation" is insufficient to render administrative remedies unavailable, specific threats may be sufficient to show that the remedy was unavailable. Adams v. O'Hara, No. 9:16-CV-527, 2018 WL 5728040, at *6 (N.D.N.Y. July 24, 2018) (citations omitted), Rep't Rec. adopted, 2018 WL 4590015 (N.D.N.Y. Sept. 25, 2018). Plausible allegations of specific threats may create a material issue of fact as to whether the defendant officer may rely upon the inmate's non-exhaustion as an affirmative defense. In Adams, I recommended denying the defendants' motion for summary judgment based upon plaintiff's allegation that his remedies were unavailable, in part, due to his claim that a correctional sergeant ripped up plaintiff's grievance in front of him and threatened him not to further pursue the grievance. 2018 WL 5728040 at *3-7. Prior to trial, Chief Judge Suddaby held an evidentiary hearing to resolve the exhaustion issue, concluding that plaintiff had failed to support his claim that administrative remedies were not "available," and dismissing the action for failure to exhaust.
While this court has serious doubts about the validity of plaintiff's exhaustion argument,
However, defendant is still entitled to summary judgment because, for the following reasons, even assuming that plaintiff exhausted his administrative remedies, I find that plaintiff has not raised a genuine issue of material fact with respect to the merits of his excessive force claim, even if plaintiff's allegations are assumed to be true for purposes of the motion.
Inmates enjoy Eighth Amendment protection against the use of excessive force, and may recover damages under 42 U.S.C. § 1983 for a violation of those rights. Hudson v. McMillian, 503 U.S. 1, 9-10 (1992). To sustain a claim of excessive force, a plaintiff must still establish the objective and subjective elements of an Eighth Amendment claim. Blyden v. Mancusi, 186 F.3d 252, 262 (2d Cir. 1999).
In order to satisfy the objective element of the constitutional standard for excessive force, a defendant's conduct must be "`inconsistent with the contemporary standards of decency.'" Whitely v. Albers, 475 U.S. 312, 327 (1986) (citation omitted); Hudson, 503 U.S. at 9. The malicious use of force to cause harm constitutes a per se Eighth Amendment violation, regardless of the seriousness of the injuries. Blyden, 186 F.3d at 263 (citing Hudson, 503 U.S. at 9). "The Eighth Amendment's prohibition of `cruel and unusual' punishments necessarily excludes from constitutional recognition de minimis uses of physical force, provided that the use of force is not of a sort repugnant to the conscience of mankind." Hudson, 503 U.S. at 9-10 (citations omitted). "`Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates a prisoner's constitutional rights.'" Sims, 230 F.3d at 22 (citation omitted). With respect to this element, the law is clear that "a claim of excessive force may be established even if the victim does not suffer `serious' . . . or `significant' injury, . . . provided that the amount of force used is more than `de minimis,' or involves force that is `repugnant to the conscience of mankind.'" Hudson, 503 U.S. at 7-10.
The subjective element requires a plaintiff to demonstrate the "necessary level of culpability, shown by actions characterized by wantonness." Id. at 21 (citation omitted). The wantonness inquiry "turns on `whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.'" Id. (quoting Hudson, 503 U.S. at 7). In determining whether defendants acted in a malicious or wanton manner, the Second Circuit has identified five factors to consider: the extent of the injury and the mental state of the defendant; the need for the application of force; the correlation between that need and the amount of force used; the threat reasonably perceived by the defendants; and any efforts made by the defendants to temper the severity of a forceful response." Scott v. Coughlin, 344 F.3d 282, 291 (2d Cir. 2003).
This court finds that plaintiff has not established a genuine issue of material fact with respect to the objective prong of the Eighth Amendment violation. As discussed below, the force allegedly used was, at most, de minimis, and plaintiff has not shown that the defendant's alleged actions violated any contemporary standards of decency or were repugnant to the conscience of mankind.
In this case, plaintiff argues that defendant Regner's alleged actions at 2:00 a.m. on August 18, 2016 rose to the level of an Eighth Amendment violation.
At plaintiff's deposition, the plaintiff's claim of verbal harassment escalated substantially, alleging that defendant Regner engaged in extensive racial epithets and announced that plaintiff was a rapist and a pedophile. (Pl.'s Dep. at 46-47, 49, 51). Plaintiff stated that defendant Regner spit at him while plaintiff was using the bathroom, and that the "evidence of saliva" was everywhere; on the bed sheet, on plaintiff's towel, on his skin, and "everywhere in his cell. (Pl.'s Dep. at 49). Plaintiff stated at his deposition that the spit was all over his body, even though plaintiff stated that defendant Regner only spit on or at plaintiff twice. (Pl.'s Dep. at 52). In fact, plaintiff stated that "they" intentionally threw all his property away because "they knew it was evidence of the saliva all over my property." (Pl.'s Dep. at 52-53).
Plaintiff also testified at his deposition that defendant Regner grabbed a lotion bottle and spilled it on himself by accident.
Defendant Regner then walked away, only to return approximately three minutes later. (Id. at 56). Plaintiff testified that he was crying because he was shocked, and he was concerned because defendant Regner had now "exposed" him as a pedophile. (Id. at 57). Although it was 2:00 a.m., plaintiff stated that "some" people on the block were still awake working on their "cases." (Id.) Plaintiff testified that in the three minutes that defendant Regner was away from plaintiff's cell, he had time to put some of his clothes on.
At that moment, defendant Regner allegedly returned with the bottle of green liquid. (Id. at 58). Plaintiff claims that defendant Regner threw the substance at him, uttering more racial and insulting epithets, and spit on plaintiff again. (Id. at 59). Plaintiff testified that the liquid "stinged [sic] the tip of [plaintiff's] skin." (Id. at 58) (first alteration in original). Although plaintiff testified that "everyone" saw the incident, he had no explanation for how this could be so, because all the inmates were in their cells. (Id. at 60). So plaintiff stated that his "neighbor" to the left and to the right saw what the defendant did and told plaintiff that they saw everything that happened and would "testify" for him.
Plaintiff testified that defendant Regner took the top off the bottle and threw the green liquid all over plaintiff. (Id. at 63). Plaintiff stated that the liquid hit "all over;" the bed, the walls, his books, and all over plaintiff's body. (Id.) Plaintiff stated that the liquid hit his face, his arms, his head, his legs, his private parts, and his clothes were soaked. (Id.) Plaintiff testified that the substance "tingled" his skin immediately, and his skin began to itch. (Id. at 64). He also stated that a few days after the incident, he began to develop discoloration of his skin, and that he had never had that "type of issue" with skin irritation prior to the August 18th incident. (Id.)
Notwithstanding the alleged "immediate" irritation of his skin, plaintiff did not wipe or wash it off because he wanted to "let the sergeant know what was going on." (Id. at 65). Plaintiff stated that he did not know if he should wash it away with soap and water, so he did not wipe it off until he spoke to the sergeant, who told him "hey just use soap and water." (Id.) Plaintiff states that he was then told that he was going to be taken to SHU because defendant Regner accused plaintiff of grabbing the lotion and throwing it on him. (Id.) Plaintiff could not remember the name of the sergeant to whom he spoke, even though plaintiff testified that he had seen the sergeant "numerous times before." Plaintiff stated that the sergeant was a male with no beard, who was stocky, and had dark hair. (Id. at 65-66).
Defense counsel asked whether plaintiff ever thought of wiping the "green stuff" off, and plaintiff testified that he did not want to touch it, even though it was irritating him. (Id. at 67). He later testified that the liquid was on his body for "[a]bout an hour" before the sergeant came. (Id. at 70). The substance smelled like cleaning solution, and defendant Regner only threw part of the bottle on him, cursed again, and walked away. (Id. at 69). Plaintiff also stated that
(Pl.'s Dep. at 70-71).
The court first notes that, notwithstanding plaintiff's attempt to embellish the verbal harassment and the affect that it had on his mental status,
Plaintiff's allegation that defendant Regner spit on him also fails to rise to the level of an Eighth Amendment violation. As defendant argues, the force alleged was de minimis. It has been held that a single incident of spitting does not constitute excessive force. Tafari v. McCarthy, 714 F.Supp.2d 317, 348 (N.D.N.Y. 2010) (citing Greene v. Mazzuca, 485 F.Supp.2d 447, 451 (S.D.N.Y. 2007) (holding that yelling, spitting at, and threatening an inmate do not rise to the level at which the constitutional bar is set to establish cruel and unusual punishment); Headley v. Fisher, No. 06-CV-6331, 2008 WL 1990771, at *14 (S.D.N.Y. May 7, 2008) (holding that spitting in plaintiff's face, slapping and pushing twice did not give rise to the claim of excessive force)).
Plaintiff attempts to embellish his claim by asserting that the spit was all over plaintiff and his cell. However, this allegation defies belief, given plaintiff's own description of the incident. Plaintiff claims that defendant Regner spit on him two or three times, and that plaintiff was first on his toilet and later, standing in front of the toilet which was eight steps away from the cell door. The cell door was locked during the entire incident. Defendant Regner would have to have spit quit a long way and an incredible amount to have covered plaintiff's body and all the property in his cell.
To be sufficient to create a "factual issue," in the context of a summary judgment motion, an allegation in an affidavit or verified complaint must not be conclusory or overly general. Smith v. Woods, 9:03-CV-480 (DNH/GHL), 2006 WL 1133247, at *3 & n.10 (N.D.N.Y. Apr. 24, 2006). Even where a complaint or affidavit contains specific assertions, the allegations "may still be deemed conclusory if [they are] (1) `largely unsubstantiated by any other direct evidence' and (2) `so replete with inconsistencies and improbabilities that no reasonable juror would undertake the suspension of disbelief necessary to credit the allegations made in the complaint.'" Id., 2006 WL 1133247, at *3 & n.11 (quoting Jeffreys v. City of New York, 426 F.3d 549, 554-55 (2d Cir. 2005) ("While it is undoubtedly the duty of district courts not to weigh the credibility of the parties at the summary judgment stage, in the rare circumstance where the plaintiff relies almost exclusively on his own testimony, much of which is contradictory and incomplete, it will be impossible for a district court to determine whether `the jury could reasonably find for the plaintiff,' . . . and thus whether there are any "genuine" issues of material fact, without making some assessment of the plaintiff's account.")).
Plaintiff's account of this incident is exactly the type of claim that the decision in Jeffreys was meant to address. Even assuming that spitting at an inmate rose to the level of a constitutional violation, which it does not, plaintiff's account of the incident is unsubstantiated and inconsistent with his initial allegations. In fact, although never mentioning it in the complaint, plaintiff testified at his deposition that defendant Regner unsuccessfully tried to throw books at the plaintiff,
Finally, throwing a substance that "smelled" like disinfectant does not rise to the level of a constitutional violation. Even assuming that defendant Regner did throw green disinfectant cleaner on plaintiff, he asserts that he would not have suffered the injuries if he had just washed the liquid off when the incident first occurred instead of waiting an hour so that the sergeant could see what defendant Regner had allegedly done. Clearly, if the substance (assuming that there was a substance) were burning plaintiff and making his skin itch as he states, he would not have simply decided to wait for the eventual arrival of a sergeant in the middle of the night. His statement that he did not "know any better" defies belief. If the substance was not painful enough or irritating enough to wash off, clearly, defendant Regner's conduct was not repugnant to the conscience of mankind.
In Tafari, plaintiff claimed that the defendant threw urine and feces on plaintiff. 714 F. Supp. 2d at 341. The court held that "this conduct, while certainly repulsive, is not sufficiently severe to be considered `repugnant to the conscience of mankind.'" Id. (citations omitted). If throwing urine and feces on a plaintiff is not repugnant to the conscience of mankind, then throwing a bottle of a liquid which "smelled" like disinfectant would not rise to that level. Although plaintiff takes great pains to prove that he was "injured," including submitting medical records, allegedly evidencing the resulting skin impairment, he also conceded at his deposition that he might not have had the problems if he had just washed the substance off immediately. (Pl.'s Dep. at 70-71). Thus, even if most of plaintiff's allegations are credited, no reasonable fact finder could determine that the defendant's alleged conduct in this case shocked the conscience and rose to the level of an Eighth Amendment violation.
Pursuant to 28 U.S.C. § 636(b)(1), the parties have 14 days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court.
