THÉRÈSE WILEY DANCKS, Magistrate Judge.
Isaac Stroman ("Stroman" or "Plaintiff") commenced this civil rights action under 42 U.S.C. § 1983 regarding alleged violations of his constitutional rights. (Dkt. No. 1.) According to Stroman, several correctional officers ("C.O.") at Coxsackie Correctional Facility ("Coxsackie") beat him on February 9, 2015, after he took a shower causing injuries to his head, hand, face, and ribs. (Dkt. No. 1.) Based on these events, Stroman raises the following claims: (1) Eighth Amendment excessive force claims against defendants C.O. Tirigllio ("Turriglio"
Defendants now move for summary judgement relative to Stroman's (1) excessive force claims against Steele and Ranze; (2) failure to intervene claims against Pasqurillio and Bailey; and (3) retaliation claim against Bence. (Dkt. No. 41-2.) For the reasons that follow, the Court recommends granting Defendants' motion with respect to Plaintiff's retaliation claim against Bence and excessive force claim against Steele and denying the motion in all other respects.
Plaintiff was a prison inmate being held in Coxsackie at the time the actions in the complaint occurred. (Dkt. No. 1 at ¶ 2.) On or about February 1, 2015, Plaintiff was locked in his cell when Turriglio approached him. Id. at ¶ 15. Turriglio questioned Plaintiff about grievances filed against other officers and threatened that Plaintiff would be leaving the facility in a body bag if the grievances were not retracted. Id. Plaintiff contacted the area supervisor to make him aware of Turriglio's threats. Id. at ¶ 16. Plaintiff was then moved from 2 Company, where he was housed, to 3 Company. Id.
On February 9, 2015, Bence asked Plaintiff if he would like his keep-lock shower. Id. at ¶ 17. Plaintiff stated that he would. Id. Bence then asked Plaintiff if he knew Turriglio. Id. Plaintiff confirmed that he did and asked why Bence wanted to know. Id. Bence responded "Because that's my brother. That's why." Id. Plaintiff was then released from his cell to take his shower. Id. at ¶ 18.
Plaintiff entered the caged-in shower stall which Steele had opened. Id. at ¶ 19. Later, Bence entered the shower area and stated that showers were over. Id. at ¶ 21. Bence and Steele proceeded to release the other inmates from their showers. Id. Bence and Steele then re-entered the shower area to release Plaintiff. Id.
Bence raised his hand and arm towards Plaintiff's torso, effectively blocking Plaintiff's attempt to leave the caged-in shower. Id. at ¶ 22. Plaintiff then took two steps back into the shower. Id. Bence followed Plaintiff into the shower stall and began taunting him. Id. at ¶ 23. Bence stated Plaintiff was a "pussy" for writing grievances against fellow officers and that Plaintiff would take a swing at Bence now if he was not a "pussy." Id. Plaintiff responded that if Bence swung first, he would defend himself. Id. Bence then pushed Plaintiff. Id. at second ¶ 23. Plaintiff dropped his towel, soap and clothing in his hands to the floor and informed Bence that if he put his hands on him again that Plaintiff would give Bence what he was looking for. Id.
Bence responded by head-butting Plaintiff, resulting in a laceration on Plaintiff's forehead. Id. Plaintiff then swung and hit Bence in the jaw, causing Bence to fall to the ground. Id. Steele entered and attempted to strike Plaintiff. Id. at ¶ 24. Plaintiff threw two punches at Steele causing Steele to fall to the floor. Id. Plaintiff was the first to strike Steele. (Dkt. No. 41-9 at ¶ 34.) While falling, Steele grabbed onto Plaintiff's shorts. (Dkt. No. 1 at ¶ 24.) Plaintiff struggled to prevent Steele from removing his shorts to avoid being naked and feeling defenseless. Id. at ¶ 25. Bence then struck Plaintiff in the shoulder and the chin. Id. Steele grabbed Plaintiff by the hair and pulled him to the ground. Id. at ¶ 26. Bence got on top of Plaintiff and struck him several times in the abdomen before continuing to strike Plaintiff in the facial area while Steele held down Plaintiff's arms. Id. In fear of becoming unconscious, Plaintiff turned over onto his stomach as Bence and Steele continued to strike him. Id. at ¶ 27.
A "response team" including Defendants Pasqurillio, Bailey and Turriglio, then arrived and entered the shower area. (Dkt. No. 41-11 at 58; Dkt. No. 1 at ¶ 28.) Turriglio shouted, "This grievance writing mother-fucker" and proceeded to kick Plaintiff under his right eye and in his facial area. Id. On the third kick Plaintiff raised his right hand, which was struck by the kick, causing his hand to fracture. (Dkt. No. 1 at ¶ 28.) Plaintiff is not sure whether Pasqurillio or Bailey ever entered the shower stall where the assault occurred but remembers Bailey saying "that's enough" "seconds" after the response team arrived. (Dkt. No. 41-9 at ¶¶ 19-20.)
Plaintiff was handcuffed and ordered to stand up by Pasqurillio. (Dkt. No. 1 at ¶ 28.) Turriglio used Plaintiff's towel to wipe the blood from Plaintiff's face. Id. at ¶ 29. Defendants told Plaintiff he was lucky they did not kill him and that Plaintiff would not be so lucky next time. Id. Defendants then twisted Plaintiff's arm, while he was cuffed behind his back, and took him to the infirmary. Id.
At the infirmary Ranze had Plaintiff's handcuffs removed and ordered Plaintiff to put both hands on the wall. Id. at ¶ 30. Plaintiff informed Ranze that he could not raise his arms high enough to do so. Id. Ramsey told Plaintiff he had better find a way. Id.
Dr. Miller entered the room to examine Plaintiff. Id. Dr. Miller informed Ranze that Plaintiff needed to be taken to an outside hospital based on the seriousness of his injuries. Id. Dr. Miller was then escorted out of the examination room. Id. at ¶ 31.
Ranze again ordered Plaintiff to place his hands on the wall. Id. Plaintiff informed Ranze that he still was not capable. Id. Ranze instructed the other Defendants to close the door first and followed by instructing the other Defendants to "beat him down but don't hit him in the face." Id. Turriglio and another unidentified individual hit Plaintiff on his back and legs. Id. After a few seconds, Plaintiff fell to the floor. Id. Ranze then ordered the other Defendants to stop. Id.
Plaintiff was handcuffed and taken to Albany Medical Center where it was determined that he suffered from multiple lacerations, contusions and fractured bones. Id. at ¶ 32. Plaintiff was given a CAT scan for his shoulder, neck, head and back. Id.
Plaintiff filed a grievance related to this incident on March 12, 2015. (Dkt. No. 41-9 at ¶ 10; Dkt. No. 41-4.) His grievance does not allege Bailey, Pasqurillio, or Bence retaliated against him for filing grievances. (Dkt. No. 41-9. at ¶¶ 13, 16, 17, 30).
As discussed above, Plaintiff raises the following claims: (1) Eighth Amendment excessive force claims against defendants Turriglio, Bence, Steele, and Ranze; (2) Eighth Amendment failure to intervene claims against Pasqurillio and Bailey; and (3) First Amendment retaliation claims against Turriglio and Bence. (Dkt. No. 29.) Defendants presumably concede there are material factual disputes regarding Plaintiff's excessive force and retaliation claims against Turriglio and excessive force claim against Bence. However, Defendants move for summary judgment as to the other claims.
Specifically, Defendants contend there is no dispute that Plaintiff hit Steele first and Ranze never laid his hands-on Plaintiff. (Dkt. No. 41-2 at 18-19.) Thus, according to Defendants, Plaintiff's excessive force claims fail. Id. Furthermore, Defendants assert Plaintiff's grievance did not alert prison officials to the nature of his retaliation claim against Bence and his failure to intervene claims against Pasqurillio and Bailey. Id. at 8-10, 13-14. Therefore, Defendants argue the Court should dismiss these claims because Plaintiff failed to exhaust his administrative remedies. Id. In any event, Defendants contend Plaintiff's retaliation claim and his failure to intervene claims are meritless. Id. at 10-13, 14-17.
Plaintiff responded, asserting he exhausted his claims and they have merit. (Dkt. No. 48.) However, Plaintiff acquiesced to the dismissal of his retaliation claim against Bence. Id. at 16.
Summary judgment may be granted only if the submissions of the parties taken together "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). The party moving for summary judgment bears the initial burden of showing, through the production of admissible evidence, no genuine issue of material fact exists. Salahuddin v. Goord, 467 F.3d 263, 272-73 (2d Cir. 2006). A dispute of fact is "genuine" if "the [record] evidence is such that a reasonable jury could return a verdict for the nonmoving party." Liberty Lobby, 477 U.S. at 248.
Only after the moving party has met this burden is the nonmoving party required to produce evidence demonstrating genuine issues of material fact exist. Salahuddin, 467 F.3d at 273 (citations omitted). "Conclusory allegations, conjecture and speculation. . . are insufficient to create a genuine issue of fact." Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998).
A party opposing summary judgment is required to submit admissible evidence. See Spiegel v. Schulmann, 604 F.3d 72, 81 (2d Cir. 2010) ("It is well established that in determining the appropriateness of a grant of summary judgment, [the court]. . . may rely only on admissible evidence.") (citation and quotation marks omitted). A verified complaint, as Plaintiff has filed in this case (Dkt. No. 1), is to be treated as an affidavit. Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995) ("A verified complaint is to be treated as an affidavit. . . and therefore will be considered in determining whether material issues of fact exist. . . .") (citations omitted).
In determining whether a genuine issue of material fact exists, the court must resolve all ambiguities and draw all reasonable inferences against the moving party. Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 309 (2d Cir. 2008). Where a party is proceeding pro se, the court is obliged to "read [the pro se party's] supporting papers liberally, and. . . interpret them to raise the strongest arguments that they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). However, "a pro se party's `bald assertion,' unsupported by evidence, is not sufficient to overcome a motion for summary judgment." Cole v. Artuz, No. 93 Civ. 5981, 1999 WL 983876, at *3 (S.D.N.Y. Oct. 28, 1999
As noted above, Stroman concedes his retaliation claim against Bence should be dismissed. (Dkt. No. 48 at 16.) The Court, likewise has considered this claim and finds Bence is entitled to summary judgment on Stroman's retaliation claim because there is no evidence imputing a retaliatory motive to Bence's actions. (See, e.g., Dkt. No. 41-9 at ¶ 31 (Plaintiff admitting he had never encountered or communicated with Bence prior to the date of the incident).) Accordingly, the Court recommends granting Defendants' motion for summary judgment with respect to Plaintiff's retaliation claim against Bence.
To state an excessive force claim, a prisoner must allege "two elements, one subjective and one objective." Harris v. Miller, 818 F.3d 49, 63 (2d Cir. 2016) (per curiam) (citation omitted). "The subjective component of the claim requires a showing that the defendant had the necessary level of culpability, shown by actions characterized by wantonness in light of the particular circumstances surrounding the challenged conduct." Wright v. Goord, 554 F.3d 255, 268 (2d Cir. 2009) (internal quotation marks omitted) (quoting Blyden v. Mancusi, 186 F.3d 252, 262 (2d Cir. 1999)). For excessive force claims, "the test for wantonness `is whether the force was used in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.'" Harris, 818 F.3d at 49 (quoting Scott v. Coughlin, 344 F.3d 282, 291 (2d Cir. 2003)).
"Second, [the inmate] must allege that the conduct was objectively `harmful enough' or `sufficiently serious' to reach constitutional dimensions." Harris, 818 F.3d at 64 (citations omitted). "The objective component of the Eighth Amendment test is also context specific, turning upon `contemporary standards of decency.'" Id. (citations omitted). But "certain actions, including the malicious use of force to cause harm, constitute Eighth Amendment violations per se." Id. (citations omitted).
Defendants' main argument is focused on the subjective prong of an excessive force claim and asserts Steele did not use excessive force against Stroman because Stroman admits he hit Steele first. (Dkt. No. 41-9 at ¶¶ 33-34.) However, summary judgment does not turn simply on whether Steele was punched first but rather whether—granting Plaintiff's version of events as true—Steele's reaction was reasonable. As Defendants appear to concede, there is a material dispute as to how the incident started, i.e., whether Bence threatened and then headbutted Plaintiff. According to Stroman, he was protecting himself from Bence's aggression and Steele subsequently lunged towards him to help Bence.
Nonetheless, Plaintiff has not alleged Steele ever struck him or did anything but attempt to get him under control. The key inquiry into a claim of excessive force is "whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm." Hudson v. McMillian, 503 U.S. 1, 9 (1992) (citing Whitley v. Albers, 475 U.S. 312, 321-22 (1986)); see also Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973). The undisputed facts establish Steele only helped subdue Plaintiff and did not apply unnecessary or wanton force. Indeed, Plaintiff's grievance does not even allege Steele hit Plaintiff, only that Steele was holding onto Plaintiff during the altercation with Bence. (Dkt. No. 41-4 at 4.) Thus, the Court finds no reasonable juror could conclude Steele possessed the requisite culpability to have violated Plaintiff's rights. Accordingly, the Court recommends granting Steele's motion for summary judgment.
The allegations in the complaint and Plaintiff's deposition transcript create a dispute of fact with respect to whether Ranze was involved in the use of force incident alleged to have taken place in the infirmary. In the relevant sense, "personal involvement" is defined as "personal participation by one who has knowledge of the facts that rendered the conduct illegal," or indirect participation, such as "ordering or helping others to do the unlawful acts, rather than doing them him- or herself." Provost v. City of Newburgh, 262 F.3d 146, 155 (2d Cir. 2001).
Here, Stroman alleges Ranze facilitated his beating in the infirmary. Specifically, Stroman recalls Ranze telling Turriglio to "close the door" and not to hit Plaintiff in the face before giving Turriglio a "nod" before he kneed Plaintiff in the back of the leg and then beat him. (Dkt. No. 41-11 at 76-79.) Thus, contrary to Defendants' suggestion and granting all reasonable inferences in Plaintiff's favor, the evidence establishes Ranze was involved and arguably ordered the attack in the infirmary. If proved, this would render Ranze liable for an excessive force claim as an indirect participant. See Provost, 262 F.3d at 155. Accordingly, the Court recommends denying Ranze's motion for summary judgment.
The Prison Litigation Reform Act, ("PLRA"), 42 U.S.C. § 1997e(a), requires an inmate-plaintiff to exhaust all available administrative remedies prior to bringing a federal civil rights action. 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 v. Bock, 549 U.S. 199, 218-19 (2007) (citing Woodford v. Ngo, 548 U.S. 81 (2006)).
In New York, the inmate grievance procedure ("IGP") 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). At step-two, an inmate may appeal an adverse decision of the IGRC to the Superintendent of the Facility. Id. at § 701.5(c). Finally, at step-three, an inmate may appeal adverse decisions at the Superintendent's level to the Central Office Review Committee ("CORC"). Id. § 701.5(d). Grievances involving claims of excessive force, such as the grievance at issue in this case, are subject to an expedited procedure. Id. § 701.8; Torres v. Carry, 691 F.Supp.2d 366 (S.D.N.Y. 2009). In those cases, the IGRC step is skipped and the Superintendent is required to investigate and render a decision on the grievance within twenty-five calendar days. N.Y. Comp. Codes R. & Regs., tit. 7 § 701.8.
In this case, Stroman completed the relevant steps as outlined above. He filed a grievance the Superintendent denied. (Dkt. No. 41-5.) He then appealed to CORC, and, similarly received an unfavorable decision. (Dkt. No. 41-6.)
Defendants do not argue Stroman failed to appropriately go through each of the steps. Rather, Defendants contend Stroman did not exhaust his administrative remedies with respect to his failure to intervene claims against Bailey and Pasqurillio because his grievance did not mention Bailey and did not state Bailey or Pasqurillio failed to prevent the use of force against Plaintiff. (Dkt. No. 41-2 at 9-10.) Thus, according to Defendants, "the grievance satisfied none of the purposes of the exhaustion requirement." (Dkt. No. 54-3 at 5.) The Court finds Defendants' arguments relative to exhaustion meritless.
As noted above, exhaustion through the PLRA is a function of state law. In other words, to successfully exhaust administrative remedies, the inmate-plaintiff must adhere to the state's procedure. Thus, for example, if the state requires grievances be served within a certain time-frame, compliance with those rules is necessary to properly exhaust state remedies. The appropriate query for the Court in this case, therefore, is to consider whether New York state regulations require an inmate-plaintiff to name each defendant and state each putative legal theory.
The Second Circuit has previously considered the IGP and held it does not require a prisoner's grievance to name the responsible party or identify relevant legal theories. See Espinal v. Goord, 558 F.3d 119, 124, 127-28 (2d Cir. 2009). Indeed, New York's regulations specifically provide only that "the grievance should contain a concise, specific description of the problem and the action requested and indicate what actions the grievant has taken to resolve the complaint[.]" N.Y. Comp. Codes R. & Regs., tit. 7 § 701.7(a)(2). Furthermore, as Plaintiff argues (Dkt. No. 48 at 6), the form provided to inmates to file grievances (Form 2131) merely provides a small space to describe the "Problem" and advises the author to "be as brief as possible." (Dkt. No. 41-4.)
Thus, far from imputing a name-all-defendants-and-legal-theories requirement, "a prisoner must [only] allege facts sufficient to alert corrections officials `to the nature of the claim,' and `provide enough information about the conduct' at issue `to allow prison officials to take appropriate responsive measures.'" Wright v. Potter, No. 914CV01041, 2016 WL 5219997, at *5 (N.D.N.Y. June 28, 2016), report and recommendation adopted, No. 914CV1041, 2016 WL 5173283 (N.D.N.Y. Sept. 21, 2016) (citing Singh v. Lynch, 460 Fed. Appx. 45, 47 (2d Cir. 2012) (quoting Johnson v. Testman, 380 F.3d 691, 697 (2d Cir. 2004)). For example, in Espinal, the plaintiff's grievance alleged the participation of "countless other security officers" in addition to alleging the involvement of two named correctional officers. Espinal, 558 F.3d at 127. The plaintiff's grievance in Espinal also included the specific date, time, and location of the incident. Id. The Second Circuit found the grievance gave officials the necessary information to investigate the complaints and which officers were involved in the incident. Id.
Here, the Court is satisfied that Plaintiff's grievance, as well as the other relevant evidence, reveals he properly exhausted his failure to intervene claims against Pasqurillio and Bailey. Indeed, it strains credulity to argue, as Defendants do, that Stroman's grievance did not alert prison officials to the nature of his claims. Stroman's grievance describes that a "response team" arrived including one unnamed officer and Turriglio. (Dkt. No. 41-4 at 4-5.) It also asserts Turriglio, who was the "second" officer in the response team, said "this grievance writing mother fucker" as soon as he arrived and right before he kicked Plaintiff in his face and hand several times. Id. Defendants rightfully concede that Stroman named Pasqurillio as one of the individuals in the response team. Such an acknowledgement is grounds enough to deny Pasqurillio's motion for summary judgment because he was identified as an individual who was present during an allegation of excessive force. Similarly, the Court finds it would have taken little effort to identify Bailey as a member of the response team on the scene during the assault. Indeed, the prison initiated a Tier III disciplinary proceeding where Bailey and Pasqurillio were called as witnesses to the incident. (Dkt. No. 54-1 at 5.)
This case is decidedly different than the case Defendants principally rely upon, Wright v. Potter, 2016 WL 5219997. In Potter, the plaintiff never mentioned the relevant doctor's name— but more importantly—never stated he received negligent medical treatment. In other words, the entire basis for the claim was left out of the grievance. Here, in stark contrast, Plaintiff's grievance accuses Bence of headbutting him after which a response team arrived to apply more force and simultaneously allowed the assault to continue. (Dkt. No. 41-4.) Plaintiff's grievance sufficiently alerts prison officials that Bence and Turriglio applied excessive force and other members of the response team failed to intervene.
Accordingly, the Court recommends denying Defendants' motion for summary judgment on exhaustion grounds.
A prison official who is present while an assault upon an inmate occurs may bear responsibility for any resulting constitutional deprivation, even if he did not directly participate. See, e.g., Tafari v. McCarthy, 714 F.Supp.2d 317, 342 (N.D.N.Y. 2010); Cicio v. Graham, No. 9:08-CV-534 (NAM/DEP), 2010 WL 980272, at *13 (N.D.N.Y. Mar. 15, 2010.). To establish liability under a failure to intervene theory, a plaintiff must prove the use of excessive force by some other 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. Curley v. Vill. of Suffern, 268 F.3d 65, 72 (2d Cir. 2001). Thus, mere inattention or inadvertence does not rise to a level of deliberate indifference sufficient to support liability for failure to intervene. Cicio v. Lamora, No. 9:08-CV-431 (GLS/DEP), 2010 WL 1063875, at *8 (N.D.N.Y. Feb. 24, 2010) (citations omitted). Indeed, officers generally "cannot be held liable for failure to intervene in incidents that happen in a `matter of seconds.'" Henry v. Dinelle, No. 9:10-CV-0456 (GTS/DEP), 2011 WL 5975027, at *4 (N.D.N.Y. Nov. 29, 2011) (quoting Parker v. Fogg, No. 85-CV-177 (NPM), 1994 WL 49696, at *8 (N.D.N.Y. Feb. 17, 1994)).
Moreover, an officer cannot be held liable for failure to intervene if there was not a "reasonable opportunity" to stop the alleged use of excessive force. Cusamano v. Sobek, 604 F.Supp.2d 416, 429 n. 9 (N.D.N.Y. 2009); Parker, 1994 WL 49696 at *8. However, this issue can be decided as a matter of law only if "considering all the evidence, a reasonable jury could not possibly conclude" that the officer had a reasonable opportunity to intervene. Anderson v. Branen, 17 F.3d 552, 557 (2d Cir. 1994).
Here, the primary issue with respect to the failure to intervene claims centers on Bailey and Pasqurillio's ability to stop Trugillio's alleged assault. As set forth above, Plaintiff claims while he was on the ground a "response team," including Defendants Pasqurillio, Bailey and Turriglio, arrived and entered the shower area. (Dkt. No. 1 at ¶¶ 27-28, 39, 42.) Turriglio shouted, "this grievance writing mother-fucker" and proceeded to kick Plaintiff under his right eye and in his facial area. Id. at ¶ 28. On the third kick Plaintiff raised his right hand, which was struck by the kick, causing Plaintiff's hand to fracture. Id. For the purposes of this motion, the Court assumes Turriglio's conduct occurred and it constitutes excessive force. The question is thus, whether Bailey and Pasqurillio had an opportunity to recognize and stop Turriglio's assault.
Defendants argue Stroman's failure to intervene claims fail on the merits because Plaintiff cannot establish they had an opportunity to stop Turriglio's use of force. The Court disagrees. Plaintiff alleges Pasqurillio and Bailey arrived at the shower area at the same time as Turriglio who made a defamatory comment before kicking Plaintiff in the face. Upon hearing Turriglio state "this grievance writing mother-fucker," Pasqurillio and Bailey would have been alerted to Turriglio's malicious motive. Thus, there is a triable issue of fact regarding whether Pasqurillio and Bailey had an opportunity to stop the alleged assault—at the moment they heard Turriglio's comments. Furthermore, considering Turriglio was able to kick Plaintiff multiple times, both Pasqurillio and Bailey had a realistic opportunity to intervene and prevent harm from occurring. Though the Court recognizes the incident was over quick and Plaintiff alleges Bailey gave an order to stop, the evidence—viewed in Plaintiff's favor—raises an inference that Bailey and Pasqurillio sat idly during at least part of Turriglio's assault. Accordingly, the Court recommends denying Defendants' motion for summary judgment on these grounds.
For the reasons stated above, the Court recommends granting Defendants' motion for summary judgment in part and denying it in part. If the Court accepts the foregoing recommendations, the following claims would remain for trial: (1) Eighth Amendment excessive force claims against Ranze, Turriglio, and Bence; (2) First Amendment retaliation claim against Turriglio; and (3) Eighth Amendment failure to intervene claims against Pasqurillio and Bailey.
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to the foregoing report.
Mr. Craig Cole, Bare Hill Correctional Facility, Malone, New York, Legal Mail, Plaintiff, pro se.
William Toran, Assistant Attorney General, Office of the Attorney General of the State of New York, New York, New York, for Defendant.
PAULEY, J.
ORDERED that the attached report and recommendation of United States Magistrate Judge James C. Francis IV, dated August 20, 1999, is adopted in its entirety; and it is further
ORDERED that defendant Pflueger's motion for summary judgment is granted, and the amended complaint is dismissed, and it is further
ORDERED that the Clerk of the Court shall enter judgment accordingly and close this case.
FRANCIS, Magistrate J.
The plaintiff, Craig Cole, an inmate at the Green Haven Correctional Facility, brings this action pursuant to 42 U.S.C. § 1983. Mr. Cole alleges that the defendant Richard Pflueger, a corrections officer, violated his First Amendment rights by refusing to allow him to attend religious services. The defendant now moves for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons set forth below, I recommend that the defendants motion be granted.
During the relevant time period, Mr. Cole was an inmate in the custody the New York State Department of Correctional Services ("DOCS"), incarcerated at the Green Haven Correctional Facility (First Amended Complaint ("Am.Compl.") ¶ 3). From June 21, 1993 to July 15, 1993, the plaintiff was in keep lock because of an altercation with prison guards (Am.Compl. ¶¶ 17-25). An inmate un keeplock is confined to his cell for twenty-three hours a day with one hour for recreation. (Affidavit of Anthony Annucci dated Dec. 1, 1994 ¶ 5). Pursuant to DOCS policy, inmates in keep lock must apply for written permission to attend regularly scheduled religious services. (Reply Affidavit of George Schneider in Further Support of Defendants' Motion for Summary Judgment dated September 9, 1996 ("Schneider Aff.") ¶ 3) Permission is granted unless prison officials determine that the inmate's presence at the service would create a threat to the safety of employees or other inmates. (Schneider Aff. ¶ 3). The standard procedure at Green Haven is for the captain's office to review all requests by inmates in keep lock to attend religious services (Schneider Aff. ¶ 3) Written approval is provided to the inmate if authorization is granted (Affidavit of Richard Pflueger dated April 26, 1999 ("Pflueger Aff.") ¶ 5). The inmate must then present the appropriate form to the gate officer before being released to attend the services. (Pflueger Aff. ¶ 5).
On August 25, 1993, the plaintiff filed suit alleging that prison officials had violated his procedural due process rights. On December 4, 1995, the defendants moved for summary judgment. (Notice of Defendants' Motion for Summary Judgment dated December 4, 1995). The Honorable Kimba M. Wood, U.S.D.J., granted the motion and dismissed the complaint on the grounds that the plaintiff failed to show that he had been deprived of a protected liberty interest, but she granted the plaintiff leave to amend. (Order dated April 5, 1997). On May 30, 1997, the plaintiff filed an amended complaint, alleging five claims against several officials at the Green Haven Correctional Facility. (Am.Compl.) On November 16, 1998, Judge Wood dismissed all but one of these claims because the plaintiff had failed to state a cause of action or because the statute of limitations had elapsed. (Order dated Nov. 16, 1998). The plaintiff's sole remaining claim is that Officer Pflueger violated his First Amendment rights by denying him access to religious services on July 2, 1993. The defendant now moves for summary judgment on this issue, arguing that the plaintiff has presented no evidence that his First Amendment rights were violated. In addition, Officer Pflueger contends that he is entitled to qualified immunity. (Defendants' Memorandum of Law in Support of Their Second Motion for Summary Judgment).
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law."] Fed.R.Civ.P. 56(c); see also Tomka v. Seiler Corp., 66 F.3d 1295, 1304 (2d Cir.1995); Richardson v. Selsky, 5 F.3d 616, 621 (2d Cir.1993). The moving party bears the initial burden of demonstrating "the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the movant meets that burden, the opposing party must come forward with specific evidence demonstrating the existence of a genuine dispute concerning material facts. Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). In assessing the record to determine whether there is a genuine issue of material fact, the court must resolve all ambiguities and draw all factual inferences in favor of the nonmoving party. Anderson, 477 U.S. at 255; Vann v. City of New York, 72 F.3d 1040, 1048-49 (2d Cir.1995). But the court must inquire whether "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party" and grant summary judgment where the nonmovant's evidence is conclusory, speculative, or not significantly probative. Anderson, 477 U.S. at 249-50 (citation omitted). "The litigant opposing summary judgment may not rest upon mere conclusory allegations or denials, but must bring forward some affirmative indication that his version of relevant events is not fanciful." Podell v. Citicorp Diners Club, Inc., 112 F.3d 98, 101 (2d Cir.1997) (citation and internal quotation omitted); Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (a non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts"); Goenaga v. March of Dimes Birth Defects Foundation, 51 F.3d 14, 18 (2d Cir.1995) (nonmovant "may not rely simply on conclusory statements or on contentions that the affidavits supporting the motion are not credible") ((citations omitted)). In sum, if the court determines that "the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no `genuine issue for trial.'" Matsushita Electric Industrial Co., 475 U.S. at 587 (quoting First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 288 (1968)); Montana v. First Federal Savings & Loan Association, 869 F.2d 100, 103 (2d Cir.1989).
It is well established that prisoners have a constitutional right to participate in congregate religious services even when confined in keeplock. Salahuddin v. Coughlin, 993 F.2d 306, 308 (2d Cir.1993); Young v. Coughlin, 866 F.2d 567, 570 (2d Cir.1989). However, this right is not absolute. See Benjamin v. Coughlin, 905 F.2d 571, 574 (2d Cir.1990) (right to free exercise balanced against interests of prison officials). Prison officials can institute measures that limit the practice of religion under a "reasonableness" test that is less restrictive than that which is ordinarily applied to the alleged infringement of fundamental constitutional rights. O'Lone v. Estate of Shaabazz, 482 U.S. 342, 349 (1986). In O'Lone, the Court held that "when a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests." Id. at 349 (quoting Turner v. Safley, 482 U.S. 78, 89 (1987)). The evaluation of what is an appropriate and reasonable penological objective is left to the discretion of the administrative officers operating the prison. O'Lone, 482 U.S. at 349. Prison administrators are "accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security." Bell v. Wolfish, 441 U.S. 520, 547 (1979).
The policy at issue here satisfies the requirement that a limitation on an inmate's access to religious services be reasonable. The practice at Green Haven was to require inmates in keeplock to present written approval to the prison gate officer before being released to attend religious services. This policy both accommodates an inmate's right to practice religion and allows prison administrators to prevent individuals posing an active threat to security from being released. The procedure is not overbroad since it does not permanently bar any inmate from attending religious services. Rather, each request is decided on a case-by-case basis by a high ranking prison official and denied only for good cause.
For the reasons set forth above, I recommend that the defendant's motion for summary judgment be granted and judgment be entered dismissing the complaint. Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(e) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days to file written objections to this report and recommendation. Such objections shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable William H. Pauley III, Room 234, 40 Foley Square, and to the Chambers of the undersigned, Room 1960, 500 Pearl Street, New York, New York 10007. Failure to file timely objections will preclude appellate review.
Respectfully submitted,
Not Reported in F.Supp.2d, 1999 WL 983876
SHAMEL WRIGHT, 346 Furman Street, 1st Floor, Schenectady, NY 12304, pro se.
HON. ERIC T. SCHNEIDERMAN, Attorney General for the State of New York, The Capitol, OF COUNSEL: RYAN E. MANLEY, ESQ., Assistant Attorney General, Albany, NY 12224, Counsel for Defendants.
THÉRÈSE WILEY DANCKS, United States Magistrate Judge
Specifically, Plaintiff claims that on August 30, 2013, Defendants Sergeant Rowland Potter ("Potter"), Sergeant Michael Barkman ("Barkman"), Sergeant John Doe ("Sergeant Doe"), Correction Officer John Doe #1 ("Officer Doe #1"), and Correction Officer John Doe #2 ("Officer Doe #2") subjected him to excessive force as well as failed to intervene or to protect Plaintiff. (See generally Dkt. No. 1.) Plaintiff also alleges an Eighth Amendment violation arising out of medical indifference against Defendant James Thomsen ("Thomsen"). Id. Currently pending before the Court is Defendant Thomsen's motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. (Dkt. No. 30.) Plaintiff has not opposed the motion. For the following reasons, I recommend that the Court grant Defendant Thomsen's motion for summary judgment.
The following facts are set forth as alleged in Plaintiff's verified complaint.
At approximately 9:30pm, Plaintiff was brought to the nurse's office by Barkman and non-party Correction Officer Castillo ("Castillo").
Plaintiff alleges that Defendant Thomsen exercised deliberate indifference by failing to provide adequate medical care in violation of his Eighth Amendment rights. (Dkt. No. 1 at ¶ 54.) Specifically, Plaintiff alleges that Defendant Thomsen signed a form falsely indicating that Plaintiff had refused medical care for a laceration on Plaintiff's forehead instead of properly treating the injury. Id.
On September 12, 2013, Plaintiff filed an Inmate Grievance Complaint alleging that he had been struck on the head with a chair wielded by Officer Doe #2 on August 30, 2013. (Dkt. No. 30-8.) Plaintiff indicated that Potter, Barkman, and Officer Doe #1 were present for the alleged altercation. Id. Plaintiff titled his grievance "CO Assaulted Me With Chair." Id. Plaintiff did not fill out any other grievances associated with the incident. (Dkt. No. 30-5 at ¶¶10-18.)
The grievance was filed with Greene's inmate grievance resolution committee ("IGRC") office on September 12, 2013. (Dkt. No. 1 at ¶ 41.) On October 15, 2013, Plaintiff's grievance was denied. Id. at ¶ 42. Plaintiff's appeal was received by the IGRC office on October 21, 2013. Id. at ¶ 22. Plaintiff appealed the IGRC decision through the Central Office Review Committee ("CORC") and the appeal was received by CORC on November 15, 2013. Id. at ¶ 44. On March 26, 2014, CORC subsequently denied the appeal citing insufficient evidence to substantiate Plaintiff's claim. Id. at ¶ 45; see also Dkt. No. 1 at 12.
Plaintiff commenced this action on August 22, 2014. Id. Defendant Thomsen now moves for summary judgment on the grounds that Plaintiff failed to properly exhaust his available administrative remedies with respect to his medical indifference claim. (Dkt. No. 30-2 at 3-6.) In the alternative, Defendant moves for summary judgement on the merits and also argues that he is entitled to qualified immunity. (Dkt. No. 30-2 at 3-6.) Plaintiff has not opposed the motion. The Court addresses only the exhaustion argument, as it is dispositive.
Summary judgment may be granted only if the submissions of the parties taken together "show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). The party moving for summary judgment bears the initial burden of showing, through the production of admissible evidence, that no genuine issue of material fact exists. Salahuddin v. Goord, 467 F.3d 263, 272-73 (2d Cir. 2006). A dispute of fact is "genuine" if "the [record] evidence is such that a reasonable jury could return a verdict for the nonmoving party." Liberty Lobby, 477 U.S. at 248.
Only after the moving party has met this burden is the nonmoving party required to produce evidence demonstrating that genuine issues of material fact exist. Salahuddin, 467 F.3d at 273 (citations omitted). The nonmoving party must do more than "rest upon the mere allegations ... of the [plaintiff's] pleading" or "simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986). "Conclusory allegations, conjecture and speculation ... are insufficient to create a genuine issue of fact." Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998).
In Jeffreys v. City of New York, the Second Circuit reminded that on summary judgment motions "[t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." 426 F.3d 549, 554 (2d Cir. 2005) (emphasis in original). To defeat summary judgment, "nonmoving parties may not rely on conclusory allegations or unsubstantiated speculation." Id. (citation and internal quotation marks omitted). "At the summary judgment stage, a nonmoving party must offer some hard evidence showing that [his] version of the events is not wholly fanciful." Id. (citation and internal quotation marks omitted). Statements "that are devoid of any specifics, but replete with conclusions, are insufficient to defeat a properly supported motion for summary judgment." Bickerstaff v. Vassar Coll., 196 F.3d 435, 452 (2d Cir. 1999).
In determining whether a genuine issue of material fact exists, the court must resolve all ambiguities and draw all reasonable inferences against the moving party. Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 309 (2d Cir. 2008). "[I]n a pro se case, the court must view the submissions by a more lenient standard than that accorded to formal pleadings drafted by lawyers." Govan v. Campbell, 289 F.Supp.2d 289, 295 (N.D.N.Y. 2003) (quoting Haynes v. Kerner, 404 U.S. 519, 520 (1972)) (other citations omitted). The Second Circuit has opined that the court is obligated to "make reasonable allowances to protect pro se litigants" from inadvertently forfeiting rights merely because they lack a legal education. Id. (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)). The court is obliged to "read [the pro se party's] supporting papers liberally, and ... interpret them to raise the strongest arguments that they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). However, this does not mean that a pro se litigant is excused from following the procedural formalities of summary judgment, Govan, 289 F. Supp. 2d at 295, and "a pro se party's `bald assertion, unsupported by evidence, is not sufficient to overcome a motion for summary judgment." Cole v. Artuz, No. 93 Civ. 5981 (WHP) (JCF), 1999 WL 983876, at *3 (S.D.N.Y. Oct. 28, 1999)
When a plaintiff fails to respond to a defendant's motion for summary judgment, "[t]he fact that there has been no [such] response ... does not ... mean that the motion is to be granted automatically." Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996). Rather, the Court must (1) determine what material facts, if any, are undisputed in the record; and (2) assure itself that, based on the undisputed material facts, the law indeed warrants judgment for the defendants. See Id.; Allen v. Comprehensive Analytical Grp., Inc., 140 F.Supp.2d 229, 232 (N.D.N.Y. 2001); L.R. 7.1(b)(3).
Plaintiff was sent a notice of motion (Dkt. No. 30) by Defendant's counsel as well as an attached notification of the consequences of failing to respond to a summary judgment motion. (Dkt. No. 30-1.) Plaintiff failed to submit any papers in opposition to summary judgment as noted above.
Defendant Thomsen argues that Plaintiff's Eighth Amendment claim of medical indifference should be dismissed because Plaintiff failed to properly exhaust his available administrative remedies, as required by the Prison Litigation Reform Act ("PLRA"), prior to filing this federal civil rights action. (Dkt. No. 30-2 at 3-6.) Defendant is correct.
Under the PLRA, "[n]o action shall be brought with respect to prison conditions under section 1983 ... 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). "[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 v. Nussle, 534 U.S. 516, 532 (2002). In order to properly exhaust administrative remedies under the PLRA, inmates are required to complete the administrative review process in accordance with the rules applicable to the particular institution to which they are confined. Jones v. Bock, 549 U.S. 199, 218 (2007) (citing Woodford v. Ngo, 548 U.S. 81, 88 (2006)). In New York state prisons, DOCCS has a well-established three-step inmate grievance program. N.Y. Comp. Codes R. & Regs. tit. 7, § 701.5 (2013).
Generally, the DOCCS Inmate Grievance Program ("IGP") involves the following procedure for the filing of grievances. First, an inmate must file a complaint with the facility's IGP clerk within twenty-one calendar days of the alleged occurrence. Id. at § 701.5(a) (2010). A representative of the facility's IGRC has sixteen calendar days from receipt of the grievance to informally resolve the issue. Id. at § 701.5(b) (1). If there is no such informal resolution, then the full IGRC conducts a hearing within sixteen calendar days of receipt of the grievance (id. at § 701.5(b)(2)), and issues a written decision within two working days of the conclusion of the hearing. Id. at § 701.5(b)(3).
Second, a grievant may appeal the IGRC decision to the facility's superintendent within seven calendar days of receipt of the IGRC's written decision. Id. at § 701.5(c)(1). If the grievance involves an institutional issue (as opposed to a DOCCS-wide policy issue), the superintendent must issue a written decision within twenty calendar days of receipt of the grievant's appeal. Id. at § 701.5(c)(3)(ii).
Third, a grievant may appeal to CORC within seven working days of receipt of the superintendent's written decision. Id. at § 701.5(d)(1)(I). CORC is to render a written decision within thirty calendar days of receipt of the appeal. Id. at § 701.5(d) (3)(ii).
Plaintiff filed a single grievance concerning the August 30, 2013, chair incident. (Dkt. No. 30-5 at ¶¶ 10-18.) CORC issued its decision on March 26, 2013. (Dkt. No. 1 at 12.) However, the grievance at no point mentioned Defendant Thomsen or medical personnel at Greene, nor did the grievance mention receiving inadequate medical care after the incident. (See Dkt. No. 30-8.)
Although it is appropriate to afford pro se inmates a liberal grievance pleading standard, the grievance may not be so vague as to preclude prison officials from taking appropriate measures to resolve the complaint internally. Brownell v. Krom, 446 F.3d 305, 310 (2d Cir. 2006). Consistent with this purpose, a prisoner must allege facts sufficient to alert corrections officials "to the nature of the claim," and "provide enough information about the conduct" at issue "to allow prison officials to take appropriate responsive measures." Singh v. Lynch, 460 Fed.Appx. 45, 47 (2d Cir. 2012) (quoting Johnson v. Testman, 380 F.3d 691, 697 (2d Cir. 2004)). Even though "a New York state prisoner is not required to name responsible parties in a grievance in order to exhaust administrative remedies," the inmate is required to "provide a specific description of the problem." Espinal v. Goord, 558 F.3d 119, 126-27 (2d Cir. 2009) (citing NYCRR § 701.7(a) (1)(i)).
While Plaintiff is not required to specifically name Defendant Thomsen in his grievance, Plaintiff's failure to specifically describe any problem in his grievance concerning medical treatment after the incident did not give the facility enough information to investigate allegations against Defendant Thomsen. See Hemby v. Ferrari, No. 9:13-CV-613, 2014 WL 1584160, at *26 (N.D.N.Y. Apr. 21, 2014) (holding that Plaintiff had failed to exhaust medical indifference claim alleging denial of medication for an ulcer where Plaintiff had filed a grievance only alleging improper wound care of the ulcer.)
Plaintiff filed a single grievance concerning the August 30, 2013, chair incident. (Dkt. No. 30-5 at ¶¶ 10-18.) In the grievance, Plaintiff stated that he was hit in the head with a chair while handcuffed and subsequently taken to Albany Medical Center where he received staples before being released. (Dkt. No. 30-8.) Plaintiff described the assault as occurring in a sergeant's office with three sergeants and two correction officers present. Id. Plaintiff admitted he did not know the names of the correction officers but would be able to identify them in a picture. Id. Plaintiff did identify Sergeant Barkman and Sergeant Potter in the grievance. Id. Yet, in that same grievance, Plaintiff failed to mention Defendant Thomsen by name or profession, failed to reference any medical personnel, and failed to reference receiving inadequate medical treatment. Id. Because Plaintiff's grievance contained no mention of inadequate medical care after the incident, Plaintiff's Eighth Amendment medical indifference claim against Defendant Thomsen has not been exhausted.
However, on June 6, 2016, the Supreme Court rejected the "special circumstances" exception applied by many circuits, and held that "[c]ourts may not engraft an unwritten `special circumstance' onto the PLRA's exhaustion requirement." Ross v. Blake, 578 U.S. ____ (2016) available at 2016 WL 3128839, at *11 (June 6, 2016). In Ross, the question before the Court was whether there is a "special circumstances" exception under the PLRA when the inmate erroneously believed that he had satisfied the exhaustion requirement. 2016 WL 3128839, at *3. In an opinion by Justice Elena Kagan, the Supreme Court held that there is no such exception:
Id. (internal citation omitted).
The Supreme Court's rejection of the "special circumstances" exception, however, still does not end a court's review "because the PLRA contains its own, textual exception to mandatory exhaustion." Id. at *7. Under the PLRA, "the exhaustion requirement hinges on the `availab[ility]' of administrative remedies: An inmate, that is, must exhaust available remedies, but need not exhaust unavailable ones.' Id. Thus, courts are still tasked with determining whether or not a prisoner's administrative remedies are, in fact "available."
To guide courts in this analysis, the Supreme Court identified "three kinds of circumstances" in which an administrative remedy, "although officially on the books," is not "available." Id.
First, "an administrative procedure is unavailable when (despite what regulations or guidance materials may promise) it operates as a simple dead end—with officers unable or consistently unwilling to provide any relief to aggrieved inmates." Id. "Next, an administrative scheme might be so opaque that it becomes, practically speaking, incapable of use." Id. at *8. Finally, an administrative remedy is not "available" when "prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation." Id.
In light of the above, the Court must now consider whether Plaintiff exhausted his available administrative remedies regarding his Eighth Amendment medical indifference claim before commencing this action.
Here, Plaintiff has not claimed that the administrative procedure was unavailable to him. To the contrary, Plaintiff utilized the administrative procedure to file a grievance concerning the August 30, 2013, incident.
Pursuant to 28 U.S.C. § 636(b)(1), 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.
Dated: June 28, 2016.
Not Reported in Fed. Supp., 2016 WL 5219997
SHAMEL WRIGHT, 346 Furman Street, 1
HON. ERIC T. SCHNEIDERMAN, Attorney General for the State of New York, The Capitol, OF COUNSEL: RYAN E. MANLEY, ESQ., Ass't Attorney General, Albany, NY 12224, Attorneys for Defendant James Thomsen.
DAVID N. HURD, United States District Judge
Based upon a de novo review of the Report-Recommendation, the Report-Recommendation is accepted in whole.
Therefore, it is ORDERED that:
1. Defendant James Thomsen's motion for summary judgment (ECF No. 30) is
2. All claims against defendant James Thomsen are
3. The Clerk serve a copy of this Decision and Order upon plaintiff in accordance with the Local Rules.
The Clerk of the Court shall enter judgment and close this case.
IT IS SO ORDERED.
Dated: September 21, 2016.
Not Reported in Fed. Supp., 2016 WL 5173283
Kenneth D. O'Reilly (Shelby Ariella Boxenbaum, Rachel H. Kaufman, on the brief), Winston & Strawn LLP, New York, NY, for Appellant.
Matthew W. Grieco, Assistant Solicitor General (Barbara D. Underwood, Solicitor General, Cecilia Chang, Deputy Solicitor General, on the brief), for Eric T. Schneiderman, Attorney General of the State of New York, New York, NY, for Appellees.
PRESENT: B.D. PARKER, REENA RAGGI, RAYMOND J. LOHIER, JR., Circuit Judges.
Singh's June 21, 2005 grievance alleged the following specific misconduct by Officer Lynch: (1) ordering Singh to work despite medical restrictions, at unscheduled times, and at times that would deprive him of contact with visitors, and (2) speaking to Singh in a derogatory manner. Nowhere in the grievance, however, did Singh allege that Lynch had ever assaulted him. Singh submits that notice of such misconduct was implicit in the grievance's penultimate sentence, which stated that "there is a whole lot more that if I discussed, let alone put on paper I would be je[o]pardizing my saf[e]ty here at Fishkill." Grievance, June 21, 2005, at 2. The argument fails for the reasons noted by the district court: notice that an inmate fears future physical retaliation if he files a more detailed grievance does not equate to notice that the inmate has previously been a victim of physical assault so as to alert officials that they must investigate and respond to that misconduct. See Brownell v. Krom, 446 F.3d at 310 (observing that "grievance may not be so vague as to preclude prison officials from taking appropriate measures to resolve the complaint internally"). The conclusion is only reinforced by the fact that Singh did not complain of any assault by Lynch when he was interviewed by the senior officer investigating his grievance. Indeed, he made no mention of an assault by Lynch until October 17, 2005, months after his initial grievance was denied and long past the time for filing a grievance as to conduct occurring on June 6, 2005.
The test for determining the availability of grievance procedures to a prisoner is objective, i.e., whether a similarly situated individual of ordinary firmness would have deemed the procedures available. Id. at 688. Singh's subjective fear of retaliatory physical harm derives from two facts: the unreported June 6, 2005 assault and other inmates' warnings that Lynch was out to get him. The former fact cannot, by itself, support an objective finding that grievance procedures were unavailable. To conclude otherwise would be to hold that no reasonable prisoner could think administrative relief was available to him on a claim of
Similarly, Singh's subjective fear of retaliation was insufficient to support estoppel. Estoppel of a non-exhaustion defense requires some evidence of threats or other conduct by Lynch that could reasonably be understood as intended to inhibit Singh from pursuing administrative remedies for the alleged assault. See id. at 688-89 (finding question of fact raised as to estoppel where evidence showed that defendant threatened and beat prisoner in retaliation for filing notice of intent to file grievance claim). Singh adduced no such evidence.
We have considered Singh's remaining arguments on appeal and conclude that they are without merit. Accordingly, the judgment is AFFIRMED.
460 Fed.Appx. 45, 2012 WL 386416
Terry Cicio, Malone, NY, pro se.
Hon. Andrew M. Cuomo, Office of the Attorney General, State of New York, Adrienne J. Kerwin, Esq., of Counsel, Albany, NY, for Defendants.
HON. NORMAN A. MORDUE, Chief Judge.
Plaintiff has submitted an objection (Dkt. No. 42). Plaintiff states that the Court should have reviewed the transcripts from his disciplinary hearing, because the testimony of defendants Peter M. Sigona and Richard D. Ruston, III at that hearing "contradicts the reports that [Magistrate Judge Peebles] relied on in making [his] decision." Plaintiff gives no specifics and thus appears to be interposing a general objection directed to the issues of excessive force and failure to intervene. His objection does not refer to the issue of medical indifference.
Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court reviews de novo those parts of a report and recommendation to which a party specifically objects. Where, as here, a party interposes only general objections to a report and recommendation, the Court reviews for clear error or manifest injustice. See Davis v. Chapple, 2010 WL 145298, *2 (N.D.N.Y. Jan. 8, 2010), Brown v. Peters, 1997 WL 599355, *2-*3 (N.D.N.Y.), aff'd without op., 175 F.3d 1007 (2d Cir.1999). Failure to object to any portion of a report and recommendation waives further judicial review of the matters therein. See Roldan v. Racette, 984 F.2d 85, 89 (2d Cir.1993).
The Court accepts and adopts Magistrate Judge Peebles' Report and Recommendation. In view of plaintiff's objection, which, as noted, appears to be directed to the evidence on the issues of excessive force and failure to intervene, the Court briefly revisits these issues. Although plaintiff interposes only a general objection on these issues, in light of his pro se status and the nature of the objection, the Court conducts a de novo review. Plaintiff requests the Court to obtain the transcript of the disciplinary hearing and contends that the testimony given by Sigona and Ruston at that hearing contradicts the reports relied on by Magistrate Judge Peebles; however, as explained below, the award of summary judgment to defendants is based on plaintiff's own evidence.
The record evidence pertinent to the excessive force and failure to intervene claims is briefly summarized as follows. In a declaration supporting the motion for summary judgment, Sigona, a sergeant at ACF, states:
The declaration from defendant Philip J. Manna, a corrections officer at ACF, is consistent with Sigona's declaration.
Plaintiff's complaint states that defendant Sigona pushed plaintiff into defendant Manna "who then grabbed plaintiff by the hair and began to pull plaintiff towards [the] holding pen door at which point plaintiff was thrown to the floor and kneed in [the] nose." The complaint further states that, after plaintiff was brought to his feet and escorted out of the immediate area, defendant Manna "once again grabbed plaintiff by his hair and pushed plaintiff's face into [the] wall." According to plaintiff, Sigona and Ruston "stood and watched the incident" and did not "intervene[ ] to stop the assault."
Plaintiff testified in his deposition that there were 17 or 18 inmates in the holding pen awaiting transport; that there were no corrections officers in the pen but there were some in the vicinity; that another inmate George Baer started "cursing up a storm" at a corrections officer; and that the sergeant told Baer to "cut it out," to which Baer responded, "No." The sergeant then said, "Take him out of there," ordered Baer to come up front, and ordered everyone else to the back of the pen. Instead of coming up front, Baer "sat down in the middle of the cage." Plaintiff stated that everyone else went to the back of the pen except plaintiff and inmate Green; according to plaintiff, they could not go back because "there was no more room." As plaintiff describes it:
Plaintiff's deposition testimony continued:
Plaintiff explained that he was then removed from the scene, taken upstairs to "their SHU" and given a ticket. He was placed in a different holding pen where a nurse came to see him within 15 or 20 minutes. According to plaintiff, he told the nurse that his nose hurt, he had pains in his right wrist, which was swollen, and some of his hair "had got pulled out in back." He was not bleeding. He requested and was denied pain medication, although at some later time he was given ibuprofen. He had headaches "off and on" for two or three weeks and his wrist was swollen for a few days, although it did not limit any of his activities.
When the disputed facts are viewed most favorably to plaintiff and considered in combination with the undisputed facts, the record shows the following: a group of 17 or 18 inmates was confined in the pen; one inmate, Baer, became disruptive and refused to comply with Sergeant Sigona's direction to stop; five or six corrections officers entered the pen to remove Baer; the other inmates were directed to move to the back of the pen; there was not room for Green and plaintiff to do so; Green was told to move but did not do so; and corrections officers began removing Green. The evidence further shows that at that point "just a whole jumble of things happened"; more corrections officers entered the pen; as they were entering, one of them—intentionally or not—pushed plaintiff into Sergeant Sigona; it was "chaos" in the pen; a corrections officer took plaintiff to the floor; and plaintiff then "got kneed in the nose," probably by a different corrections officer. Plaintiff was then pulled out of the pen. In his complaint he states that Officer Manna again grabbed him by the hair and pushed his face into the wall, whereas in his deposition, plaintiff stated that he was pulled out of the pen by his hair and "ended up on the floor again" with a couple of corrections officers on top of him, and added: "I don't know if they fell, if I fell." He was then removed and taken to SHU, where a nurse examined him within 20 minutes.
In addition to his objection to the Report and Recommendation (Dkt. No. 42), plaintiff has filed what appears to be an appeal from the Report and Recommendation (Dkt. No. 43). Because Magistrate Judge Peebles did not issue any order which could be the subject of the appeal, the appeal is denied. In the event that plaintiff wishes to appeal from this Memorandum-Decision and Order, he should follow the procedure set forth in the Civil Appeals Packet, which will be provided to him with this decision.
It is therefore
ORDERED that United States Magistrate Judge David E. Peebles's Report and Recommendation (Dkt. No. 41) is accepted and adopted; and it is further
ORDERED that the appeal (Dkt. No. 43) from the Report and Recommendation is denied; and it is further
ORDERED that plaintiff's motion for summary judgment (Dkt. No. 35) is denied; and it is further
ORDERED that defendants' cross motion for summary judgment (Dkt. No. 38) is granted and the complaint dismissed on the merits; and it is further
ORDERED that the Clerk is directed to provide plaintiff with a Civil Appeals Packet.
IT IS SO ORDERED.
DAVID E. PEEBLES, United States Magistrate Judge.
Plaintiff Terry Cicio, a New York State prison inmate who is proceeding pro se and in forma pauperis, has commenced this action pursuant to 42 U.S.C. § 1983, claiming deprivation of his civil rights. In his complaint plaintiff asserts that he was assaulted by one of the defendants while two others stood by and failed to intervene, and that following the assault medical personnel at the prison facility where the incident took place failed to provide requested medical treatment for his resulting injuries. Plaintiff's complaint seeks both declaratory and monetary relief.
Having carefully reviewed the record considered in light of the arguments of the parties, for the reasons that follow I recommend that defendants' motion be granted and that plaintiff's motion be denied.
The facts forming the basis for plaintiff's claims are not particularly complex, although the parties have given conflicting accounts of the relevant events, particularly with regard to the circumstances surrounding the use of force by prison officials of force against Cicio.
Plaintiff is a prison inmate entrusted to the care and custody of the New York State Department of Correctional Services ("DOCS"); at the times relevant to his complaint, Cicio was housed at the Auburn Correctional Facility ("Auburn"), located in Auburn, New York. See generally Complaint (Dkt. No. 1). On March 7, 2006, while plaintiff was among a group of between sixteen and eighteen inmates confined in the Auburn hospital depot awaiting transfer out a disruption occurred involving a fellow prisoner. Complaint (Dkt. No. 1) Statement of Facts ¶ 1; Sigona Decl. (Dkt. No. 38-8) ¶ 3; Manna Decl. (Dkt. No. 38-9) ¶ 3; see also Kerwin Aff. (Dkt. No. 38-3) Exh. K (transcript of plaintiff's deposition, conducted on May 15, 2009 and hereinafter cited as "Plaintiff's Dep. Tr." at pp. 8-10). Defendants Sigona, Manna and Ruston, all three of whom are employed as corrections workers at the facility, responded to the incident, entering the cell and ordering all of the inmates to retreat to the back. Complaint (Dkt. No. 1) Statement of Facts ¶ 2, Manna Decl. (Dkt. No. 38-9) ¶ 3; Sigona Decl. (Dkt. No. 38-8) ¶ 3. While those corrections officers attempted to remove the dissident inmate from the cell plaintiff Cicio became involved. It is at this point that the parties' versions of the relevant events significantly diverge.
Plaintiff contends that during the ensuing events he was pushed into defendant Manna, who then grabbed him by the hair and began to pull him toward the cell door, resulting in Cicio being thrown to the floor and kneed in the nose. Complaint (Dkt. No. 1) Statement of Facts ¶ 4; Cicio Decl. (Dkt. No. 40-2) ¶ 4. Plaintiff maintains that after regaining his footing he was again grabbed by the hair and pushed face first into the wall. Complaint (Dkt. No. 1) Statement of Facts ¶ 5. Plaintiff asserts that while this was occurring defendants Sigona and Ruston stood by and watched without coming to his assistance. Id.
As a result of the incident a misbehavior report was subsequently issued by Corrections Officer Manna charging Cicio with disciplinary infractions, including 1) assault on staff; 2) prison takeover; 3) engaging in violent conduct; 4) inciting inmates; 5) disobeying a direct order; 6) physically interfering with an employee; and 7) impeding inmate movement. Mann Decl. (Dkt. No. 38-9) ¶ 7. Following a Tier III disciplinary hearing commenced on March 13, 2006, plaintiff was found guilty of five of the six violations including, inter alia, assault on staff. Kerwin Aff. (Dkt. No. 38-3) Exh. I. As a result of that determination plaintiff received a series of sanctions which, after being modified on appeal, included twelve months of confinement in a facility special housing unit ("SHU") with a corresponding loss of packages, commissary, and telephone privileges, and an additional recommendation that plaintiff forfeit twelve months of good time credits. Id.
Following the incident plaintiff was immediately removed from the area and taken to be examined by facility medical personnel Manna Decl. (Dkt. No. 38-9) ¶ 6 Plaintiff was examined by defendant A. Vega, a registered nurse, within fifteen to twenty minutes after the incident. Cicio Decl. (Dkt. No. 40-2) ¶ 5, Plaintiff's Dep. Tr. at p. 22. During that examination Nurse Vega observed a reddened area on the bridge of Plaintiff's nose and noted his reports of minor pain in the nose and head areas Plaintiff's Dep. Tr. at pp. 25-26; see also Kerwin Aff. (Dkt. No. 38-3) Exhs. B. and H. Plaintiff was not treated for his injuries nor was he scheduled to see a doctor. Complaint (Dkt. No. 1) Statement of Facts ¶ 8.
Plaintiff claims that following the incident he submitted sick call slips on March 8, 9, 13 and 19, 2006, requesting medical intervention to address his injuries. Complaint (Dkt. No. 1) Statement of Facts ¶¶ 9, 11-12 and 15. Plaintiff contends, however, that those sick call slips were not processed by defendant Ryerson, the nurse administrator at Auburn Id. ¶ 22. Defendant Ryerson denies that allegation and counters that based upon her review of all sick call slips received during the time period involved, there is no record of plaintiff having requested sick call at any time between March 8 and March 20, 2006. Ryerson Decl. (Dkt. No. 38-10) ¶ 4.
According to the defendants, the sole grievance filed by plaintiff regarding the incident was submitted on March 24, 2006 and was denied by the facility IGRC on April 3, 2006 after plaintiff was transferred out of Auburn. Graham Decl. (Dkt. No. 38-7) ¶ 6 That denial was subsequently affirmed by defendant Graham, the Superintendent at Auburn, on April 3, 2006. While plaintiff claims to have appealed that determination on June 12, 2006, presumably to the DOCS Central Office Review Committee ("CORC"), the record contains no further indication of whether that appeal was in fact taken, and if so, the result. See Complaint (Dkt. No. 1) Statement of Facts ¶ 18. According to prison officials at Auburn, their research of relevant records at the facility failed to disclose additional documents regarding Plaintiff's exhaustion of remedies and, significantly, to show that plaintiff appealed to Superintendent Graham from the disposition of his claimed use of force grievance. See Graham Decl. (Dkt. No. 38-7) ¶ 4.
Plaintiff commenced this action on April 28, 2008.
Issue was initially joined in the action by defendant Manna through his filing of an answer on September 25, 2008. Dkt. No. 23. Following the denial of their pre-answer motion seeking dismissal of plaintiff's claims against them on a variety of bases, see Dkt. Nos. 29, 32, an answer was filed on behalf of the remaining defendants on February 25, 2009. Dkt. No. 30.
The parties' cross-motions, which are now fully briefed and ripe for determination, have been referred to me for the issuance of a report and recommendation, pursuant to 28 U.S.C § 636(b)(1)(B) and Northern District of New York Local Rule 72.3(c). See also Fed.R.Civ.P. 72(b).
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 moving for 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 Plaintiff's 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).
In a case such as this, where parties have interposed cross-motions for summary judgment, each motion must be independently assessed, using this standard as a backdrop. See Light Sources, Inc. v. Cosmedico Light, Inc., 360 F.Supp.2d 432, 434 (D.Conn. 2005).
At the heart of Plaintiff's complaint is his claim that on March 7, 2006 he was subjected to an unprovoked attack by defendant Manna and that defendants Sigma and Ruston watched and failed to take any measures to end the assault and that, as a result, he suffered physical injuries. Plaintiff claims that the record supports his excessive force and failure to intervene claims as a matter of law. Defendants counter by arguing that no reasonable factfinder could conclude, based upon the record now before the court, that plaintiff's constitutional rights were violated, even assuming the truth of his version of the relevant events.
Plaintiff's excessive force claim must be analyzed 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)).
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, however, 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").
Turning to the subjective element, the record is devoid of any evidence from which a reasonable factfinder could conclude that this element of plaintiff's excessive force claim against Manna has been met. Rather than representing an unprovoked use of force, by plaintiff's own version, the use of force against the plaintiff occurred during a period of turmoil when one or more disruptive inmates in a group of between sixteen and eighteen combined in a single holding cell became unruly and were being urged to lash out against corrections officers. Plaintiff alleges in his complaint and states in a sworn declaration that he was pushed into a corrections officer by Sergeant Sigona, pulled out of the holding pen by his hair, and thrown to the floor and kneed in the nose. During his deposition, however, plaintiff testified that five or six corrections officers rushed into the holding pen directing him to move to the back, which he could not do because there was no room. Plaintiff's Dep. Tr. at pp. 16 and 51. From there, plaintiff is not exactly sure what happened; he does not know whether he was pushed intentionally, only that "[he] was taken down ... [and] ... kneed in the nose." Id. at p. 16. Additionally, at the time of the incident, plaintiff did not know who the officers involved were, who "took him down", or who kneed him in the nose, and could not say whether there were also officers on the floor with him.
Under the circumstances presented, even accepting as true plaintiff's version of the events, when considering the four factors informing the subjective analysis no reasonable factfinder could conclude that the force applied was malicious or sadistic for the purpose of causing plaintiff harm and not in a good faith effort to maintain discipline. Moreover, considering the extent of the force applied and the relatively minor injuries suffered even by plaintiff's account, coupled with the lack of evidence of malicious motives on the part of the corrections officers involved, I recommend a finding that the use of force was truly de minimis and did not abridge plaintiff's Eighth Amendment rights.
Based upon my finding that plaintiff's Eighth Amendment rights were not violated through the actions of defendant Manna, there can be no cognizable claim for liability on the part of defendants Sigona and Ruston for failure to intervene and protect plaintiff from the constitutional violation. See Curley, 268 F.3d at 72. I therefore recommend that plaintiff's claims against those defendants be dismissed as well.
The second component of plaintiff's complaint alleges that defendants Vega and Ryerson failed to provide him with needed medical treatment. Plaintiff's claim against Nurse Vega apparently stems from her failure, upon examining Cicio immediately following the March 7, 2006 incident, to arrange for him to see a doctor or to prescribe pain medication. The allegations against defendant Nurse Administrator Ryerson result from her alleged failure to process sick call slips submitted on several occasions following the incident by plaintiff. While plaintiff's summary judgment motion does not speak directly to this claim, he apparently seeks summary judgment on the issue of liability on this claim as well. For their part, defendants urge dismissal of plaintiff's medical indifference claims as a matter of law due to his failure to assert the existence of a serious medical need and additionally for lack of any evidence to satisfy the subjective element of the controlling test.
A claim alleging that prison conditions violate the Eighth Amendment must satisfy both an objective and subjective requirement-the conditions must be "sufficiently serious" from an objective point of view, and the plaintiff must demonstrate that prison officials acted subjectively with "deliberate indifference". See Leach v. Dufrain, 103 F.Supp.2d 542, 546 (N.D.N.Y.2000) (Kahn, J.) (citing Wilson v. Seiter, 501 U.S. 294, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991)); Waldo v. Goord, No. 97-CV-1385, 1998 WL 713809, at *2 (N.D.N.Y. Oct. 1, 1998) (Kahn, J. and Homer, M.J.); see also, generally, Wilson, 501 U.S. 294, 111 S.Ct. 2321, 115 L.Ed.2d 271. Deliberate indifference exists if an official "knows of and disregards an excessive risk to inmate health or 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 1978; Leach, 103 F.Supp.2d at 546 (citing Farmer); Waldo, 1998 WL 713809, at *2 (same).
In order to state a medical indifference claim under the Eighth Amendment, a plaintiff must allege a deprivation involving a medical need which is, in objective terms, "`sufficiently serious'". Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir.1994) (quoting Wilson, 501 U.S. at 298, 111 S.Ct. at 2324), cert. denied sub nom., Foote v. Hathaway, 513 U.S. 1154, 115 S.Ct. 1108, 130 L.Ed.2d 1074 (1995). A medical need is serious for constitutional purposes if it presents "`a condition of urgency' that may result in `degeneration' or `extreme pain'." Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir.1998) (citations omitted). A serious medical need can also exist where "`failure to treat a prisoner's condition could result in further significant injury or the unnecessary and wanton infliction of pain'"; since medical conditions vary in severity, a decision to leave a condition untreated may or may not be unconstitutional, depending on the facts. Harrison v. Barkley, 219 F.3d 132, 136-37 (2d Cir.2000) (quoting, inter alia, Chance, 143 F.3d at 702). Relevant factors informing this determination include whether the plaintiff suffers from an injury that a "`reasonable doctor or patient would find important and worthy of comment or treatment'", a condition that "`significantly affects'" a prisoner's daily activities, or "`the existence of chronic and substantial pain.'" Chance, 143 F.3d at 701 (citation omitted); Lafave v. Clinton County, No. CIV. 9:00CV774, 2002 WL 31309244, at *3 (N.D.N.Y. Apr. 3, 2002) (Sharpe, M.J.) (citation omitted).
In addition to establishing the existence of a serious medical need, to prevail on an Eighth Amendment claim a plaintiff must also establish indifference to that condition on the part of one or more of the defendants. Estelle, 429 U.S. at 104, 97 S.Ct. at 291. Deliberate indifference, in a constitutional sense, exists if an official "knows of and disregards an excessive risk to inmate health or 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 [or she] must also draw the inference." Farmer, 511 U.S. at 837, 114 S.Ct. at 1979; Leach, 103 F.Supp.2d at 546 (citing Farmer, 511 U.S. at 837, 114 S.Ct. at 1979); Waldo, 1998 WL 713809, at *2 (same).
It should be noted that the Eighth Amendment does not afford prisoners a right to medical treatment of their choosing; the question of which diagnostic techniques and treatments should be administered to address an inmate's medical condition is a "classic example of a matter for medical judgment", and, accordingly, prison medical personnel are vested with broad discretion to determine what method of care and treatment to provide to their patients. Estelle, 429 U.S. at 107, 97 S.Ct. at 293; Chance, 143 F.3d at 703 (citation omitted); Rosales v. Coughlin, 10 F.Supp.2d 261, 264 (W.D.N.Y.1998) (citation omitted).
The record now before the court fails to substantiate plaintiff's claims of deliberate indifference. Even if plaintiff could establish the existence of a serious medical need, the record does not provide a basis for a reasonable factfinder to conclude that either defendant Vega or defendant Ryerson was deliberately indifferent to such a need. Plaintiff's claim against Nurse Vega is that on one occasion she failed to provide pain medication or to refer the plaintiff to a physician as a result of his injuries. Such an allegation of a single instance of delayed or denied medical care does not establish constitutional claim of medical deliberate indifference. See Smith v. Carpenter, 316 F.3d 178, 186 (2d Cir.2003).
In their motion defendants assert that even if plaintiff could establish a cognizable excessive force or deliberate indifference claim, his cause of action against defendant Graham, the superintendent at Auburn, is legally insufficient based upon his lack of personal involvement in any conduct forming the basis for those claims.
Personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under section 1983. Wright v. Smith, 21 F.3d 496, 501 (2d Cir.1994) (citing Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir.1991)) and McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir.1977), cert. denied, 434 U.S. 1087, 98 S.Ct. 1282, 55 L.Ed.2d 792 (1978)). In order to prevail on a section 1983 cause of action against an individual a plaintiff must show some tangible connection between the constitutional violation alleged and that particular defendant. See Bass v. Jackson, 790 F.2d 260, 263 (2d Cir.1986).
Importantly, a supervisor like Superintendent Graham cannot be liable for damages under section 1983 solely by virtue of being a supervisor; there is no respondeat superior liability under section 1983. Richardson v. Goord, 347 F.3d 431, 435 (2d Cir.2003); Wright, 21 F.3d at 501. Vague and conclusory allegations that a supervisor has failed to train or properly monitor the actions of subordinate employees will not suffice to establish the requisite personal involvement and support a finding of liability. Pettus v. Morgenthau, 554 F.3d 293, 300 (2d Cir.2009) ("To the extent that [a] complaint attempts to assert a failure-to-supervise claim ... [that claim is insufficient where] it lacks any hint that [the supervisor] acted with deliberate indifference to the possibility that his subordinates would violate [plaintiff's] constitutional rights."). Culpability on the part of a supervisory official for a civil rights violation can, however, be established in one of several ways, including when that individual 1) has directly participated in the challenged conduct; 2) after learning of the violation through a report or appeal, has failed to remedy the wrong; 3) created or allowed to continue a policy or custom under which unconstitutional practices occurred; 4) was grossly negligent in managing the subordinates who caused the unlawful event; or 5) failed to act on information indicating that unconstitutional acts were occurring. Iqbal v. Hasty, 490 F.3d 143, 152-53 (2d Cir.2007), rev'd on other grounds, sub nom., Ashcroft v. Iqbal, ___ U.S. ____, 129 S.Ct. 2931 (2009); see also Richardson, 347 F.3d at 435; Wright, 21 F.3d at 501; Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir.1986).
The record in this case discloses no basis on which a reasonable factfinder could conclude that plaintiff's constitutional right to be free from cruel and unusual punishment was violated by defendant Manna during the course of the March 7, 2006 incident and that defendants Sigona and Ruston failed to intervene to prevent such a violation. The record similarly discloses no basis on which a reasonable factfinder could conclude that plaintiff suffered injuries of constitutional significance as a result of that incident or that the defendants were subjectively indifferent to the medical needs presented by those injuries. Finally, the record discloses no basis on which a reasonable factfinder could assign liability on the part of defendant Graham, as superintendent of the Auburn Correctional Facility. Accordingly, it is hereby respectfully
RECOMMENDED that defendants' motion for summary judgment (Dkt. No. 38) be GRANTED and that plaintiff's complaint be dismissed in its entirety, and that based upon that determination plaintiff's summary judgment motion (Dkt. No. 35) be DENIED.
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.
Not Reported in F.Supp.2d, 2010 WL 980272
West KeySummary
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 plaintiff's 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[, n]othing 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 plaintiff's 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. Plaintiff's 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 Plaintiff's 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).
Plaintiff's 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 plaintiff's claim is far from overwhelming. Plaintiff's 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 plaintiff's 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 plaintiff's 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 plaintiff's complaint whether he has sued defendants in their individual or official capacities, or both. Insofar as plaintiff's 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 plaintiff's 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 plaintiff's 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, plaintiff's 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 [plaintiff's] 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 [plaintiff's] 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. Plaintiff's 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 plaintiff's 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 plaintiff's 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.
Not Reported in F.Supp.2d, 2010 WL 1063875
Sivin & Miller, LLP, Edward Sivin, Esq., of Counsel, New York, NY, for Plaintiff.
Hon. Eric T. Schneiderman, Attorney General for the State of New York, Timothy P. Mulvey, Esq., Assistant Attorney General, of Counsel, Albany, NY, for Defendants.
Hon. GLENN T. SUDDABY, District Judge.
Generally, liberally construed, Plaintiff's Complaint alleges that, between approximately January 29, 2009, and January 31, 2009, at Ulster Correctional Facility in Napanoch, New York, Defendants violated Plaintiff's following rights in the following manner: (1) Defendants Nurse Jean Norton, Corrections Officer James F. Dinelle, Corrections Officer Russell E. Duckett and Corrections Officer Alfred J. DeLuca violated Plaintiff's rights under the First Amendment by filing retaliatory false misbehavior reports against him, and subsequently providing false testimony against him at administrative disciplinary hearings, which resulted in his spending time in the Special Housing Unit ("SHU"); (2) Defendant Dinelle violated Plaintiff's rights under the Eighth Amendment by assaulting him on two occasions, and Defendants DeLuca and Duckett violated Plaintiff's rights under the Eighth Amendment by assaulting him once; (3) Defendant Sergeant Donald L. Broekema violated Plaintiff's rights under the Eighth Amendment by failing to intervene to prevent one of these assaults from occurring; (4) Defendant Norton violated Plaintiff's rights under the Eighth Amendment by harassing him almost immediately before he was subjected to the above-described assaults; and (5) Defendants Norton, Dinelle, Duckett and DeLuca violated Plaintiff's rights under the Fourteenth Amendment by performing the aforementioned acts, which constituted atypical and significant hardships in relation to the ordinary incidents of prison life. (See generally Dkt. No. 1 [Plf.'s Compl.].) Familiarity with the factual allegations supporting these claims in Plaintiff's Complaint is assumed in this Decision and Order, which is intended primarily for review by the parties. (Id.)
At all times relevant to Plaintiff's Complaint, Plaintiff was an inmate and Defendants were employees of the New York Department of Corrections and Community Supervision at Ulster Correctional Facility. On January 30, 2009, Defendant Dinelle took Plaintiff to the medical ward, because Plaintiff was experiencing a foul odor and oozing from a wound on his leg. After Defendant Norton treated Plaintiff, she filed an inmate misbehavior report against Plaintiff based on (1) Plaintiff's harassing behavior toward Defendant Norton and Defendant Dinelle, and (2) Plaintiff's disobedience of a direct order to be quiet. The misbehavior report was signed by Defendant Dinelle as an employee witness.
At his deposition, Plaintiff testified, while leaving the infirmary, he was punched and kicked by Defendant Dinelle and two unknown prison officials. Plaintiff was then taken to the SHU, where he waited with Defendants Dinelle and Duckett, and up to three more individuals, for a sergeant to arrive. When Defendant Broekema (a sergeant) arrived at the SHU, Plaintiff was taken to a frisk room, where a frisk was conducted. During the frisk, Defendants Dinelle, Duckett and (Plaintiff suspected) DeLuca used force to bring Plaintiff to the ground. Plaintiff testified that, during the use of force, he was simultaneously punched in the nose by two officers while their supervisor watched.
Familiarity with the remaining undisputed material facts of this action, as well as the disputed material facts, as set forth in the parties' Rule 7.1 Statement and Rule 7.1 Response, is assumed in this Decision and Order, which (again) is intended primarily for review by the parties. (Id.)
Generally, in support of their motion for partial summary judgment, Defendants argue as follows: (1) Plaintiff's claim that Defendants issued false misbehavior reports should be dismissed because Plaintiff has no constitutional right to be free of false misbehavior reports; (2) Plaintiff's First Amendment retaliation claim should be dismissed because he has failed to adduce admissible record evidence from which a rational factfinder could conclude that he (a) engaged in protected activity, or (b) suffered adverse action as a result of engaging in protected activity; (3) Plaintiff's Fourteenth Amendment substantive due process claim should be dismissed because he has failed to adduce admissible record evidence from which a rational factfinder could conclude that Defendants deprived Plaintiff of his liberty rights; (4) Plaintiff's Eighth Amendment excessive-force claim against Defendant Norton should be dismissed because Plaintiff has failed to adduce admissible record evidence from which a rational factfinder could conclude that she (a) used force against Plaintiff, or (b) was in a position to prevent the use of force from occurring, yet failed to do so; (5) Plaintiff's Eighth Amendment excessive-force claim against Defendant DeLuca should be dismissed because Plaintiff's identification of Defendant DeLuca is "very tentative"; (6) Plaintiff's Eighth Amendment failure-to-intervene claim against Defendant Broekema should be dismissed because Plaintiff has failed to adduce admissible record evidence from which a rational factfinder could conclude that Defendant Broekema had a realistic opportunity to intervene to prevent or stop the assault, yet failed to do so; and (7) Defendants are protected from liability, as a matter of law, by the doctrine of qualified immunity, under the circumstances. (See generally Dkt. No. 24, Attach. 10 [Defs.' Memo. of Law].).
In Plaintiff's response to Defendants' motion for partial summary judgment, he argues as follows: (1) his retaliation claims should not be dismissed because there are triable issues of fact as to whether Defendants retaliated against him for stating that he would be contacting an attorney; (2) his failureto-intervene claim against Defendant Broekema should not be dismissed because there are triable issues of fact as to whether Defendant Broekema failed to prevent excessive force from being used against him; (3) his excessive-force claim against Defendant DeLuca should not be dismissed because there are triable issues of fact as to whether Defendant DeLuca used excessive force against him; and (4) Defendants are not protected from liability, as a matter of law, by the doctrine of qualified immunity, under the circumstances. (See generally Dkt. No. 27, Attach. 5 [Plf.'s Response Memo. of Law].)
Because the parties to this action have demonstrated, in their memoranda of law, an accurate understanding of the legal standard governing motions for summary judgment, the Court will not recite that well-known legal standard in this Decision and Order, but will direct the reader to the Court's decision in Pitts v. Onondaga Cnty. Sheriff's Dep't, 04-CV-0828, 2009 WL 3165551, at *2-3 (N.D.N.Y. Sept.29, 2009) (Suddaby, J.), which accurately recites that legal standard.
Claims of retaliation like those asserted by Plaintiff find their roots in the First Amendment. See Gill v. Pidlypchak, 389 F.3d 379, 380-81 (2d Cir.2004). Central to such claims is the notion that, in a prison setting, corrections officials may not take actions which would have a chilling effect upon an inmate's exercise of his First Amendment rights. See Gill, 389 F.3d at 381-383. Because of the relative ease with which claims of retaliation can be incanted, however, courts have scrutinized such retaliation claims with particular care. See Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir.1983). As the Second Circuit has noted,
Dawes v. Walker, 239 F.3d 489, 491 (2d Cir.2001), overruled on other grounds, Swierkewicz v. Sorema N.A., 534 U.S. 506, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002).
To prevail on a First Amendment claim under 42 U.S.C. § 1983, a plaintiff must prove by the preponderance of the evidence that (1) the speech or conduct at issue was "protected", (2) the defendants took "adverse action" against the plaintiff—namely, action that would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights, and (3) there was a causal connection between the protected speech and the adverse action—in other words, that the protected conduct was a "substantial or motivating factor" in the defendants' decision to take action against the plaintiff. Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977); Gill, 389 F.3d at 380 (citing Dawes v. Walker, 239 F.3d 489, 492 [2d Cir.2001]). Under this analysis, adverse action taken for both proper and improper reasons may be upheld if the action would have been taken based on the proper reasons alone. Graham v. Henderson, 89 F.3d 75, 79 (2d Cir.1996).
To establish a claim of excessive-force under the Eighth Amendment, a plaintiff must satisfy two components: "one subjective, focusing on the defendant's motive for his conduct, and the other objective, focusing on the conduct's effect." Wright v. Goord, 554 F.3d 255, 268 (2d Cir.2009). In consideration of the subjective element, a plaintiff must allege facts which, if true, would establish that the defendant's actions were wanton "`in light of the particular circumstances surrounding the challenged conduct.'" Id. (quoting Blyden v. Mancusi, 186 F.3d 252, 262 [2d Cir.1999]). The objective component asks whether the punishment was sufficiently harmful to establish a violation "in light of `contemporary standards of decency.'" Wright, 554 F.3d at 268 (quoting Hudson v. McMillian, 503 U.S. 1, 8 [1992]).
Generally, officers have a duty to intervene and prevent such cruel and unusual punishment from occurring or continuing. Curley v. Village of Suffern, 268 F.3d 65, 72 (2d Cir.2001); 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." Cicio v. Lamora, 08-CV-0431, 2010 WL 1063875, at *8 (N.D.N.Y. Feb.24, 2010) (Peebles, M.J.). A corrections officer who does not participate in, but is present when an assault on an inmate occurs may still be liable for any resulting constitutional deprivation. Id. at *8. To establish a claim of failure-to-intervene, the plaintiff must adduce evidence establishing that the officer had (1) a realistic opportunity to intervene and prevent the harm, (2) a reasonable person in the officer's position would know that the victim's constitutional rights were being violated, and (3) that officer does not take reasonable steps to intervene. Jean-Laurent v. Wilkinson, 540 F.Supp.2d 501, 512 (S.D.N.Y.2008). Generally, officers cannot be held liable for failure to intervene in incidents that happen in a "matter of seconds." Parker v. Fogg, 85-CV-177, 1994 WL 49696 at *8 (N.D.N.Y. Feb.17, 1994) (McCurn, J.).
"Substantive due process protects individuals against government action that is arbitrary, ... conscience-shocking, ... or oppressive in a constitutional sense, ... but not against constitutional action that is incorrect or ill-advised." Lowrence v. Achtyl, 20 F.3d 529, 537 (2d Cir.1994) [internal quotations marks and citations omitted], aff'g, 91-CV-1196, Memorandum-Decision and Order (N.D.N.Y. filed Jan. 26, 1993) (DiBianco, M.J.) (granting summary judgment to defendants in inmate's civil rights action).
"An inmate has a liberty interest in remaining free from a confinement or restraint where (1) the state has granted its inmates, by regulation or statute, an interest in remaining free from that particular confinement or restraint; and (2) the confinement or restraint imposes `an atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.'" Whitaker v. Super, 08-CV-0449, 2009 WL 5033939, at *5 (N.D.N.Y. Dec.14, 2009) (Kahn, J. adopting Report-Recommendation by Lowe, M.J.) (quoting Sandin v. Conner, 515 U.S. 472, 484 [1995]). Regarding the first prong of this test, "[i]t is undisputed ... that New York state law creates a liberty interest in not being confined to the SHU." Palmer v. Richards, 364 F.3d 60, 64 n. 2 (2d Cir.2004). When evaluating whether an inmate's confinement in SHU violates his substantive due process rights, the issue, then, is whether his keeplock confinement imposed "an atypical and significant hardship on [him] in relation to the ordinary incidents of prison life." Id. at 64.
"In the Second Circuit, determining whether a disciplinary confinement constituted an `atypical and significant hardship' requires examining `the extent to which the conditions of the disciplinary segregation differ from other routine prison conditions and the duration of the disciplinary segregation compared to discretionary confinement.'" Whitaker, 2009 WL 5033939, at *5 (quoting Palmer, 364 F.3d at 64). "Where a prisoner has served less than 101 days in disciplinary segregation, the confinement constitutes an `atypical and significant hardship' only if `the conditions were more severe than the normal SHU conditions.'" Id. (quoting Palmer, 364 F.3d at 65).
In determining the second issue (i.e., whether it would be clear to a reasonable officer that his conduct was unlawful in the situation confronted), courts in this circuit consider three factors:
Jermosen v. Smith, 945 F.2d 547, 550 (2d Cir.1991), cert. denied, 503 U.S. 962, 112 S.Ct. 1565, 118 L.Ed.2d 211 (1992).
[T]he qualified immunity defense ... provides ample protection to all but the plainly incompetent or those who knowingly violate the law.... Defendants will not be immune if, on an objective basis, it is obvious that no reasonably competent officer would have concluded that a warrant should issue; but if officers of reasonable competence could disagree on this issue, immunity should be recognized.
Malley, 475 U.S. at 341.
As stated above in Part I.C. of this Decision and Order, Defendants seek the dismissal of this claim because Plaintiff has failed to adduce admissible record evidence from which a rational factfinder could conclude that he (1) engaged in protected activity, or (2) suffered adverse action as a result of engaging in protected activity. More specifically, Defendants argue that the claim should be dismissed because (1) the statement of an inmate's intent to contact an attorney is not protected conduct, (2) Plaintiff has failed to adduce admissible record evidence from which a rational factfinder could conclude that Defendant Norton knew of Plaintiff's intention to contact an attorney, and (3) Plaintiff has failed to adduce admissible record evidence from which a rational factfinder could conclude that Defendants' actions were retaliatory. (Dkt. No. 24, Attach.10.)
Representation by a lawyer is certainly not necessary to file an inmate grievance in the New York State Department of Corrections and Community Supervision, nor does such representation necessarily result in the filing of a grievance. Rather, such representation is most typically associated with the filing of a civil rights action in federal court (as is clear from the motions for appointment of counsel typically filed in federal court actions). As a result, the statement in question does not reasonably imply that Plaintiff would be filing a grievance as much as it implies that he was going to consult an attorney as to whether or not to file a civil rights action in federal court.
Here, such a statement is problematic. This is because, generally, the filing of the prisoner civil rights action in federal court in New York State must be preceded by the prisoner's exhaustion of his available administrative remedies (or his acquisition of a valid excuse for failing to exhaust those remedies). Any filing without such prior exhaustion (or acquisition of a valid excuse), under the circumstances, would be so wholly without merit as to be frivolous. Of course, filing a court action that is frivolous is not constitutionally protected activity.
Moreover, to the extent that Plaintiff's statement could be construed as reasonably implying that he was going to consult an attorney as to whether or not to file a grievance, the Court has trouble finding that such a vague statement is constitutionally protected.
In any event, even assuming, for the sake of argument, that Plaintiff's statement was constitutionally protected, the Court finds, based on the current record, that Plaintiff has failed to adduce admissible record evidence from which a rational factfinder could conclude that his statement to Defendants Dinelle, Duckett, and Broekema that he would be contacting an attorney was a substantial or motivating factor for the issuance of the misbehavior report by Defendant Norton (which was signed by Defendant Dinelle as a witness), and the misbehavior report by Defendant Duckett (which was signed by Defendant DeLuca as a witness). The Court makes this finding for two alternate reasons.
Second, even assuming that Defendant Duckett or Defendant Norton had reason to believe Plaintiff would contact an attorney, Plaintiff has failed to adduce admissible record evidence from which a rational factfinder could conclude that Defendant Duckett or Defendant Norton would not have issued the misbehavior report anyway, based on Plaintiff's actions. Indeed, at Plaintiff's disciplinary hearings, evidence was adduced that he in fact committed most of the misconduct alleged in the misbehavior reports, which resulted in the hearing officer finding multiple violations and sentencing Plaintiff to SITU.
For each of these alternative reasons, Plaintiff's retaliation claim under the First Amendment is dismissed.
As stated above in Part I.C. of this Decision and Order, Defendants seek the dismissal of Plaintiff's Eighth Amendment claims because (1) Plaintiff has failed to adduce any admissible evidence from which a rational factfinder could conclude that Defendant Norton used any force against Plaintiff, or was in a position to intervene to prevent the use of force against Plaintiff, yet failed to do so, (2) Plaintiff has failed to adduce any admissible evidence from which a rational factfinder could conclude that Defendant Broekema had a reasonable opportunity to intervene and prevent the alleged assault by Defendants Dinelle, DeLuca and Duckett, yet failed to do so, and (3) Plaintiff's identification of Defendant DeLuca is "very tentative."
As an initial matter, because Plaintiff did not oppose Defendants' argument that his excessive-force claim against Defendant Norton should be dismissed, Defendants' burden with regard to this claim "is lightened such that, in order to succeed, they need only show the facial merit of their request, which has appropriately been characterized as a `modest' burden." Xu-Shen Zhou v. S.U.N.Y. Inst. of Tech., 08-CV-0444, 2011 WL 4344025, at *11 (N.D.N.Y. Sept.14, 2011) (Suddaby, J.). After carefully considering the matter, the Court finds that Defendants have met this modest burden, for the reasons stated by them in their memoranda of law. The Court would add only that, based on its own independent review of the record, the Court can find no record evidence to support the claim that Defendant Norton used force against Plaintiff, or was in a position to intervene to prevent the use of force against Plaintiff, yet failed to do so. As a result, Plaintiff's Eighth Amendment claim against Defendant Norton is dismissed.
While the Court in no way condones the conduct alleged in this action, the Court is simply unable to find, based on the current record, that Plaintiff has adduced sufficient admissible record evidence to reach a jury on his Eighth Amendment claim against Defendant Broekema. Rather, based on the evidence presented, a rational factfinder could only conclude that the use of force was simply too uncertain for a reasonable person in Defendant Broekema's position to expect; and it was too brief in nature to give Defendant Broekema a realistic opportunity to intervene in it, so as prevent the one punch and possibly few kicks that Plaintiff presumably experienced.
Finally, based on the current record, the Court rejects Defendants' third argument (i.e., that Plaintiff's excessive-force claim against Defendant DeLuca should be dismissed because Plaintiff's identification of Defendant DeLuca is "very tentative"). Defendants argue that Plaintiff has failed to adduce admissible record evidence from which a rational factfinder could conclude that Defendant DeLuca was present during the use of force against Plaintiff (let alone that Defendant DeLuca used force against Plaintiff). This is because Plaintiff's basis for bringing his excessive-force claim against Defendant DeLuca is that he remembered being assaulted by three individuals, including Defendants Dinelle and Duckett, whose last names began with the letter "D." While this fact is undisputed, it is also undisputed that Defendant DeLuca was interviewed by the Inspector General's Office regarding his involvement in the incidents giving rise to Plaintiff's claims,
After carefully considering the matter, the Court finds that Defendants have met this modest burden, for the reasons stated by them in their memoranda of law. The Court would add only that, based on its own independent review of the record, although the record evidence establishes that Plaintiff was confined in SHU for 150 days as a result of the misbehavior reports issued by Defendants Norton and Duckett, Plaintiff has failed to adduced admissible record evidence from which a rational factfinder could conclude that the conditions of his confinement during this 150-day period were more severe than normal SHU conditions.
As stated above in Part I.C. of this Decision and Order, Defendants seek dismissal of Plaintiff's claims on the alternative ground that they are protected from liability, as a matter of law, by the doctrine of qualified immunity, under the circumstances.
The doctrine of qualified immunity "protects government officials `from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 [1982]). Here, even assuming that Plaintiff's statement that he would contact an attorney regarding the use of force he experienced constitutes engagement in protected activity, and even also assuming that the only reason Defendant Norton and/or Duckett issued Plaintiff a misbehavior report was because he made this statement, these Defendants are, under the circumstances, entitled to qualified immunity. This is because the Court finds that the right to make this statement (without experiencing any resulting adverse action) was not a clearly established during the time in question (January 2009), based on a review of the relevant case law. See, supra, notes 12 and 13 of this Decision and Order.
As a result, Plaintiff's retaliation claim is dismissed on the alternate ground of qualified immunity.
There is no doubt that the right to be free from the use of excessive force was "clearly established" at the time of the incidents giving rise to Plaintiff's claims. See, e.g., Hudson v. McMillian, 503 U.S. 1, 9-10, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992). Moreover, with regard to whether it was objectively reasonable for Defendants to use the alleged amount of force that they used, the Second Circuit has made clear that, "[w]here the circumstances are in dispute, and contrasting accounts present factual issues as to the degree of force actually employed and its reasonableness, a defendant IS NOT ENTITLED TO JUDGMENT AS A MATTER OF LAW ON A DEFENSE OF qualified immunity." Mickle v. Morin, 297 F.3d 114, 122 (2d Cir.2002) [internal quotation marks omitted].
However, the Court reaches a different conclusion with regard to Plaintiff's failure-to-intervene claim against Defendant Broekema: the Court finds that, at the very least, officers of reasonable competence could disagree on the legality of Defendant Broekema's actions, based on the current record. As a result, Plaintiff's failure-to-intervene claim against Defendant Broekema is dismissed on this alternative ground.
Not Reported in F.Supp.2d, 2011 WL 5975027
James M. Kerrigan, Ithaca, NY, for plaintiff.
Robert Abrams, Atty. Gen. for the State of New York, Albany, NY (David B. Roberts, Asst. Atty. Gen., of counsel), for defendants.
McCURN, Senior District Judge.
Named as defendants in the complaint are Walter Fogg, the Superintendent at Coxsackie at the time of the alleged incident,
To fully appreciate the relatively brief encounter between plaintiff Parker and the defendants on the evening of October 12, 1983, it is necessary to briefly examine the background against which that incident occurred. There is evidence in the record, in the form of "Inmate Misbehavior Reports," showing that plaintiff had been verbally harassing C.O. Judy Wood prior to October 12, 1983. See Defendants' exhs. E and F. Even though plaintiff did not remember the incidents described in those reports, he did remember having some differences with C.O. Wood. Defendants suggest that those differences arose out of the fact that C.O. Wood is a woman and at the time was a "Block Officer," which apparently was quite rare in the early 1980's. Plaintiff disagrees explaining that his differences with Wood occurred because she accused him of being a ringleader or instigator, provoking others to engage in disturbances. In any event, it is against this history of animosity between plaintiff Parker and Wood (which most surely did exist, for whatever reason) that the incident which is the subject of this litigation occurred.
Plaintiff's version of the events of October 12, 1983 is as follows. That evening he was keeplocked
As they proceeded down the corridor, plaintiff admits to talking loudly and continuing to question defendants as to where he was being taken. He did that because he was the only one not locked in and he wanted his fellow inmates to know that he was being taken away by the defendants. Plaintiff was then placed in the corner of the center room, making it difficult for him to be seen or heard by other inmates in the surrounding cells. See Defendants' exh. A. At this time plaintiff's hands were behind his back, as they had been since he left the cell, and pressed against the wall. C.O.s Benevento and Schoonmaker flanked plaintiff, and by plaintiff's estimation Sergeant Longtin was behind the C.O.s, about two and a half feet from plaintiff.
Plaintiff further testified that it was only about three seconds from the time he was placed in the corner until Schoonmaker first hit him—either with an open right hand or a fist, plaintiff is not sure which. Prior to being struck, plaintiff testified that Schoonmaker was basically telling him that he had a big mouth and that he was a troublemaker. Trying to avoid getting hit, the plaintiff ducked. Plaintiff then claims that after that initial strike by Schoonmaker, both Benevento and Schoonmaker beat him up a little. Schoonmaker then hit plaintiff a second time with a right fist to plaintiff's temple, causing plaintiff's head to hit the wall and he began to bleed. Plaintiff testified that he was ducking and trying to protect himself after Schoonmaker struck him the first time. In fact, the plaintiff went so far as to demonstrate for the court the crouching position he assumed, with his hands covering his face, when the altercation started. Thus, because by his own admission plaintiff was protecting his face and head and in so doing obstructing his own vision, the court simply cannot credit plaintiff's testimony that C.O. Benevento struck or kicked plaintiff. Perhaps plaintiff was kicked or hit by more than one of the defendants, but the fact remains that he could not reasonably testify to that because at that point, he could not see what was happening.
In any event, after this plaintiff claims that Benevento subdued him with a stick and no more punches were thrown. Plaintiff also claims that he was kicked in the groin, but again there is no credible testimony as to which defendant, if any, engaged in that conduct. Moreover, the medical records do not corroborate plaintiff's statement that he sustained injuries to the groin area as a result of this incident.
In addition to the scar, plaintiff claims that in the months after the incident he had a lot of headaches and vision problems, as well as pain in the groin area. Even today plaintiff claims that he continues to suffer from headaches, although he could not testify to the frequency of the same. Significantly, however, there is no mention in any of plaintiff's medical records, which are a part of the trial record, of headaches or vision problems. If plaintiff had, as he testified, a number of headaches in the two weeks immediately following the incident, surely that would be noted in his medical records from that time.
Likewise, even though plaintiff claimed at trial that he also sustained injury to his groin area, there is no mention of that in either the medical portion of the "Unusual Incident Report" or in his medical records for the date of the incident, or the visits immediately following that. In fact, there is no mention in the medical records of any such problem until nearly six weeks after the incident. Defendants' exh. H. In addition, when plaintiff again saw the doctor on November 28, 1983, he mentioned that problems with "bloody ejaculate" were intermittent for the past two months "and also 1 yr. [year] ago." Id. Following treatment for prostate difficulties, by plaintiff's own admission, this problem subsided. Thus, insofar as plaintiff's injuries are concerned, the court finds that plaintiff did sustain a laceration to the area above his right eyebrow, which required sutures and resulted in a small permanent scar.
The court will not attribute plaintiff's other complaints of headaches, vision problems and pain and discomfort in the groin area to this incident, however, because those problems are not substantiated in plaintiff's medical records during the weeks immediately following the incident. Furthermore, the fact that headaches can be so easily feigned is another reason for not attributing that particular symptom to the October 12, 1983 incident, especially where these supposed headaches are not mentioned anywhere in plaintiff's medical records.
Not surprisingly, defendants' version of events is at odds with that offered by plaintiff. The defendants claim that earlier in the evening of October 12, 1983, plaintiff had again been verbally harassing C.O. Wood. Sergeant Longtin claims that he first became aware of this when he received a call from C.O. Wood at approximately 7:50 p.m. In response to that call, Sergeant Longtin testified that he went to plaintiff's cell to work out the problem by talking with plaintiff. According to Longtin he and plaintiff agreed to "forgive and forget" the whole matter. Sometime later, while he was making his rounds in another part of the facility, Longtin received a second call from C.O. Wood, again complaining about plaintiff Parker. This time she advised Longtin that the keeplocked inmates, including Parker, were creating a disturbance. Wood also expressed concern that plaintiff had indicated that when the nurse and another C.O. made their usual nightly rounds at 10:00 p.m., the inmates, led by plaintiff, planned to "break on" them, or, in other words, create a disturbance. Defendants' exh. G. Longtin advised Wood that he would be up shortly after finishing his rounds.
When the three defendants arrived at plaintiff's cell, prior to giving the signal for the door to be opened, Sergeant Longtin testified that he informed plaintiff that he was being taken to the center room so that they could talk to him. Schoonmaker then ordered plaintiff Parker to put on his pants and plaintiff did that. After exiting the cell, Schoonmaker pat frisked plaintiff and he found contraband—namely a blade from a Bic brand razor measuring approximately 1 1/2 inches by 3/8 inches. Defendants' exh. D and D1. Despite finding that contraband, the three defendants proceeded to escort plaintiff to the center room. Later that night, Schoonmaker wrote up an Inmate Misbehavior Report pertaining to both the contraband and the altercation; but no action was taken with respect to the contraband at the time it was found. Defendants' exh. D.
Upon entering the center room, plaintiff was ordered to stand in the corner and he did that. At that point, while directly in front of the plaintiff, Sergeant Longtin claims that he began talking to him, again questioning plaintiff about the alleged harassment and his supposed plan to instigate a disturbance on the block later that evening. Before he could finish, plaintiff began yelling. Schoonmaker told the plaintiff to stop yelling and to show a little more respect for the Sergeant, or words to that effect. According to the defendants, that prompted plaintiff to respond by removing his hands from his pockets, where he had been instructed to keep them, and to swing at Schoonmaker with a closed fist. Schoonmaker claims that in self-defense he responded by striking plaintiff on the left side of his head, causing plaintiff's head to hit the wall. Schoonmaker and Benevento then turned the plaintiff around, and both applied "bar hammer locks" to plaintiff's arms. Defendants' exh. B. Longtin issued handcuffs to Schoonmaker who handcuffed the plaintiff. After being escorted to the infirmary, plaintiff was seen by a facility nurse and then placed in another cell area.
Ascertaining exactly what happened on the evening of October 12, 1983 at Coxsackie is not easy because, admittedly, there are discrepancies, in varying degrees of significance, in the testimony of each of the witnesses, all of whom are parties to this action.
The court finds the defendants' description of what happened on the night of October 12, 1983 suspect for a second reason. As all the parties testified, although not in precisely this way, plaintiff, a 19 year old, 160 pound unarmed inmate, and familiar with prison mores having already served part of his sentence, was surrounded and literally cornered, by three guards whose combined weight was, conservatively, 500 pounds. Regardless of whether or not the defendants had batons,
Given the proliferation of inmate instituted lawsuits over the years,
Id. at 321-322, 106 S.Ct. at 1085 (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.), cert. denied sub nom. John v. Johnson, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 324 (1973)).
The Supreme Court has recently re-affirmed use of the Whitley test in situations such as the one now before the court. See Hudson v. McMillian, 503 U.S. 1, 112 S.Ct. 995, 999, 117 L.Ed.2d 156 (1992). In Hudson, the Court stated that "whenever prison officials stand accused of using excessive force in violation of the Cruel and Unusual Punishments Clause, the core judicial inquiry is that set out in Whitley: whether the force was applied in a good faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm." Id.
To determine whether the defendants acted maliciously, a jury should consider the following factors: the extent of the plaintiff's injuries; 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. Id. (citing Whitley, 475 U.S. at 321, 106 S.Ct. at 1085). If an evaluation of these factors leads the jury to conclude that the defendants acted maliciously, wantonness has been established. And an Eighth Amendment violation has occurred. If, on the other hand, reflection upon these factors leads the jury to find that the defendants acted in a good-faith effort to maintain and restore discipline, no constitutional violation has occurred because the subjective component of the claim has not been satisfied.
Romano v. Howarth, 998 F.2d 101 (2d Cir.1993).
Id. at 151-52.
Convinced that defendant Schoonmaker delivered the first blow, the court must now consider whether, under the circumstances, that conduct amounted to a deprivation of plaintiff Parker's constitutional rights such that liability should be imposed under section 1983. When the facts of this case are analyzed in light of the Romano factors, the court is compelled to conclude that Schoonmaker's unprovoked attack on plaintiff, albeit brief, renders him liable under section 1983. Although plaintiff's injuries were not extensive, that does not militate against a finding of excessive force violative of the Eighth Amendment. See Hudson, 112 S.Ct. at 1000 (use of excessive physical force against an inmate may constitute cruel and unusual punishment even though the inmate does not suffer serious injury). In addition, crediting plaintiff's testimony that Schoonmaker struck him first, there is absolutely nothing in the record demonstrating that Schoonmaker needed to apply force when plaintiff, a 19 year old, 160 pound unarmed inmate, was in a corner virtually surrounded by three prison guards who together substantially outweighed him. Again, accepting plaintiff's version of events, as just explained, Schoonmaker could not reasonably perceive plaintiff as a threat to Schoonmaker's well being. Lastly, Schoonmaker made no effort to temper his response to plaintiff's supposed disrespect; after verbally attacking plaintiff, Schoonmaker just hauled off and struck him. Based on all of the foregoing, the court finds that the force applied by defendant Schoonmaker was not done "in a good faith effort to maintain or restore discipline[,]" but rather was done "maliciously and sadistically to cause harm." See id. at 999. Consequently, plaintiff has shown to the court's satisfaction that Dennis Schoonmaker violated plaintiff's Eighth Amendment right to be free from cruel and unusual punishments.
A defendant's liability for a constitutional deprivation under 42 U.S.C. § 1983 may arise in several different ways, as the Second Circuit has recognized.
Moffitt v. Town of Brookfield, 950 F.2d 880, 886 (2d Cir.1991) (quoting Williams v. Smith, 781 F.2d 319, 32324 (2d Cir.1986) (citations omitted)); see also Van Pelt v. Finn, No. 92 Civ. 2977, 1993 U.S.Dist. LEXIS 15951, at * 19 (S.D.N.Y. filed Nov. 12, 1993) (same); and Garrido v. Coughlin, 716 F.Supp. 98, 100 (S.D.N.Y.1989) (quoting Duchesne v. Sugarman, 566 F.2d 817, 830 (2d Cir.1977)) ("Supervisory officials cannot be held liable under § 1983 solely for the acts of others; `there must be some showing of personal responsibility.'"). In the present case there is simply no proof that Longtin participated in striking plaintiff; that he created a policy or custom under which this attack was allowed to take place; or that he allowed a policy or custom of unprovoked attacks on inmates to continue. Thus, of the types of personal involvement just described, the only category into which Sergeant Longtin could possibly be placed would be as a supervisor who was grossly negligent in managing a subordinate—C.O. Schoonmaker.
Sergeant Longtin cannot be found liable on that basis, however, because this was a single incident which happened in a matter of seconds. Therefore, even though he was acting in a supervisory capacity at the time plaintiff's constitutional rights were violated, Sergeant Longtin still cannot be held liable because he is no different than any other nonsupervisory prison official who does not act because there is no reasonable opportunity to intercede. As defense counsel correctly pointed out, this case is no different than O'Neill v. Krzeminiski, 839 F.2d 8 (2d Cir.1988), where the Court held that there was "insufficient evidence to permit a jury reasonably to conclude that [an officer's] failure to intercede was a proximate cause of the beating [,]" where "the three blows were struck in such rapid succession that [the officer] had no realistic opportunity to a prevent them." Id. at 11. Just as in O'Neill, the blows by Schoonmaker were over and done with so quickly here that Sergeant Longtin "had no realistic opportunity to attempt to prevent them." Id. see also Gaudreault v. Municipality of Salem, Mass., 923 F.2d 203, 207 n. 3 (1st Cir.1990), cert. denied, 500 U.S. 956, 111 S.Ct. 2266, 114 L.Ed.2d 718 1991) (no "realistic opportunity" for a police officer to prevent an attack in a police station booking room where it was over in a matter of seconds). Thus, while generally a corrections officer such as Longtin bears "an affirmative duty to intercede on behalf of a citizen whose constitutional rights are being violated in his presence by other officers [,]" Sergeant Longtin was excused from that duty because there was no "realistic opportunity" to prevent this attack which was over in a matter of seconds. See id.
Before turning to a consideration of plaintiff's pendent state law claims, the court notes that although this case has been pending for nearly nine years, it was not until defendants' opening statement at trial that a statute of limitations defense was raised. Having failed to assert that affirmative defense in their answer, however, the defendants are deemed to have waived it. See Litton Indus. v. Lehman Bros. Kuhn Loeb Inc., 967 F.2d 742, 752 (2d Cir.1992). In light of that waiver, the court need not address the defendants' untimely statute of limitations argument.
During their opening statement, defendants raised a second procedural point with respect to plaintiff's pendent claims and that is that those claims are barred by § 24 of the New York State Corrections Law. That statute expressly states, in relevant part:
N.Y.Correc.Law §§ 24(1) and 24(2) (McKinney 1987) (emphasis added). Relying upon that statute, defendants argue that because a state court would lack jurisdiction thereunder to decide plaintiff's pendent state claims, then so too would this court lack jurisdiction over those claims.
After reviewing the medical records, listening to all of the testimony, and having an opportunity to observe the permanent scar near plaintiff's right eyebrow, which although not disfiguring, does remain visible today—some nine years later, the court is convinced that plaintiff is entitled to damages totalling $2,500.00. An award of that amount will, in the court's opinion, adequately compensate plaintiff for the actual injury he sustained, as well as for his pain and suffering.
An award of punitive damages is not, however, justified on the present record. In Smith v. Wade, 461 U.S. 30, 103 S.Ct. 1625, 75 L.Ed.2d 632 (1983), the Supreme Court set forth the standard for assessing punitive damages in § 1983 actions. The Court held that punitive damages may be awarded "when the defendant's conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others." Id. at 56, 103 S.Ct. at 1640. The Smith Court further "observed that though entitlement to compensatory damages is automatic upon a finding that the plaintiff's rights have been violated, an award of punitive damages is discretionary, reflecting a `moral judgment,' and that the threshold of proof need not be different." Vasbinder v. Ambach, 926 F.2d 1333, 1342 (2d Cir.1991) (quoting Smith, 461 U.S. at 52, 52-55, 103 S.Ct. at 1638, 1638-40). The Supreme Court has also explained that the purpose of punitive damages "is to punish the defendant for his willful or malicious conduct and to deter others from similar behavior." Memphis Community School District v. Stachura, 477 U.S. 299, 306 n. 9, 106 S.Ct. 2537, 2542 n. 9, 91 L.Ed.2d 249 (1986); see also In re Air Disaster at Lockerbie, Scotland, 928 F.2d 1267, 1272 (2d Cir.), cert. denied, 502 U.S. 920, 112 S.Ct. 331, 116 L.Ed.2d 272 (1991) (reviewing history of punitive damages).
Keeping these general principles in mind, the court cannot find that punitive damages are warranted based upon the record before it. There is simply nothing in the record showing that defendant Schoonmaker acted recklessly or with "callous indifference" to plaintiff Parker's rights. Although defendant Schoonmaker violated plaintiff's constitutional rights, in the court's view his conduct was not sufficiently egregious to justify an award of punitive damages.
For the violation of his Eighth and Fourteenth Amendment rights, plaintiff Maurice Parker is awarded compensatory damages of $2,500.00 against defendant Dennis Schoonmaker. Plaintiff Parker is also entitled to a declaratory judgment that defendant Dennis Schoonmaker violated his Eighth and Fourteenth Amendment as fully explained herein. Plaintiff Parker is not, however, entitled to recover on any other aspect of this action.
Accordingly, the Clerk of the Court is directed to enter judgment on behalf of the plaintiff in the total amount of $2,500.00 as against defendant Dennis Schoonmaker. The Clerk of the Court is further directed to enter judgment dismissing the plaintiff's claims as against defendants Ernest Benevento and James Longtin, and dismissing plaintiff's state law claims as against all defendants.
IT IS SO ORDERED.
Not Reported in F.Supp., 1994 WL 49696
N.Y.Correct. § 137(5) (McKinney 1987). This statute is not as one-sided as a reading of the just quoted passage might suggest. Section 137(5) goes on to provide:
Id.
Frank v. Relin, 1 F.3d 1317, 1326 (2d Cir.1993).
