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holding seven-month lapse too "attenuated" to establish temporal proximity
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99 Civ. 5851 (RMB) (JCF)
February 9, 2001
REPORT AND RECOMMENDATION
Thomas Crawford, a prison inmate, brings this action pursuant to 42 U.S.C. § 1983, alleging that the defendants have violated his civil rights. He contends that while he was incarcerated at the Green Haven Correctional Facility, Corrections Officer Paul Braun falsely reported that he was in possession of a homemade knife and that Officer Braun, along with Officers Jonathan Price, William Glasser, and Barry Stevens and Sergeants Charles Buday and Brian Schaller used excessive force against him by beating him, placing handcuffs on him so tightly that they left abrasions, and forcing his arms upward while his hands were cuffed. Mr. Crawford further contends that Hearing Officer Thomas Casey violated his due process rights at the subsequent disciplinary hearing by denying the plaintiff an opportunity to make objections, by refusing to admit certain documentation, and by concealing the wrongful acts of the officers who testified. Mr. Crawford also complains that he was denied adequate medical treatment by Nurse Lynn Forgit who allegedly did not examine him thoroughly after the purported assault, and by William Dudhlo, a radiological technician who apparently did not comply with the plaintiff's demand to x-ray his wrist. Finally, Mr. Crawford asserts that all of these defendants, together with Glen Goord, the Commissioner of the New York State Department of Correctional Services ("DOCS"); Christopher Artuz, the Superintendent of Green Haven; George Schneider, the Deputy Superintendent; and Corrections Lieutenant Arlen Pelc all conspired to retaliate against him for filing other claims against DOCS personnel, including a case currently pending before this Court, Crawford v. Goord, 99 Civ. 0967 (RMB).
Mr. Casey has been deceased since July 1999, and defendants' counsel filed a Suggestion of Death Upon the Record.
The defendants now move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the following reasons, I recommend that the motion be granted in part and denied in part. The relevant factual background will be summarized in connection with the discussion of each claim.
Discussion
A. Standard 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 Andy Warhol Foundation For the Visual Arts, Inc. v. Federal Insurance Co., 189 F.3d 208, 214 (2d Cir. 1999); 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 moving party meets that burden, the opposing party must come forward with specific evidence demonstrating the existence of a genuine dispute of material fact. 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," Anderson, 477 U.S. at 249 (citation omitted), and grant summary judgment where the nonmovant's evidence is conclusory, speculative, or not significantly probative. See id. at 249-50. "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) (internal quotations omitted); see also Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (a nonmoving 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"); Howard Johnson International, Inc. v. HBS Family, Inc., No. 96 Civ. 7687, 1998 WL 411334, at *3 (S.D.N.Y. July 22, 1998). 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)); see also Montana v. First Federal Savings and Loan Association of Rochester, 869 F.2d 100, 103 (2d Cir. 1989).
Where a litigant is pro se, his pleadings should be read liberally and interpreted "to raise the strongest arguments that they suggest." McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)). Nevertheless, proceeding pro se does not otherwise relieve a litigant from the usual requirements of summary judgment, and a pro se party's "bald assertion," unsupported by evidence, is not sufficient to overcome a motion for summary judgment. Lee v. Coughlin, 902 F. Supp. 424, 429 (S.D.N.Y. 1995) (quoting Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991)); see also Gittens v. Garlocks Sealing Technologies, 19 F. Supp.2d 104, 110 (W.D.N.Y. 1998); Kadosh v. TRW, Inc., No. 91 Civ. 5080, 1994 WL 681763, at *5 (S.D.N.Y. Dec. 5, 1994) ("the work product of pro se litigants should be generously and liberally construed, but [the pro se's] failure to allege either specific facts or particular laws that have been violated, renders his attempt to oppose defendants' motion ineffectual"); Stinson v. Sheriff's Department of Sullivan County, 499 F. Supp. 259, 262 (S.D.N.Y. 1980) (liberal standard accorded to pro se pleadings "is not without limits, and all normal rules of pleading are not absolutely suspended").
B. False Accusations
Mr. Crawford alleges that on April 21, 1999, Officer Braun conducted a frisk and falsely claimed that the plaintiff possessed a homemade knife, when in fact, the weapon had been planted on him. The defendants argue that this claim must be dismissed because an inmate "has no general constitutional right to be free from being falsely accused in a misbehavior report." Boddie v. Schnieder, 105 F.3d 857, 862 (2d Cir. 1997); see also Freeman v. Rideout, 808 F.2d 949, 951 (2d Cir. 1986); Hameed v. Pundt, 964 F. Supp. 836, 840 (S.D.N.Y. 1997). However, the defendants fail to account for at least two exceptions to this general proposition.
First, a false accusation does rise to the level of a constitutional violation when it is made in retaliation for the inmate's exercise of his substantive constitutional rights. See Boddie, 105 F.3d at 862; Jones v. Coughlin, 45 F.3d 677, 679-80 (2d Cir. 1995); Franco v. Kelly, 854 F.2d 584, 588-90 (2d Cir. 1988); Williams v. Goord, 111 F. Supp.2d 280, 290 (S.D.N Y 2000). In this case, Mr. Crawford has alleged that false charges were leveled against him in retaliation for his exercising his right to petition for the redress of grievances. Nevertheless, as will be discussed below, those retaliation claims do not withstand summary judgment and therefore cannot serve as the predicate for any claim based on a false misbehavior report.
Second, a false accusation is actionable if the inmate was not given an opportunity to rebut it at a hearing in which he was accorded due process. See Jones, 45 F.3d at 679; Grillo v. Coughlin, 31 F.3d 53, 56 (2d Cir. 1994); Taylor v. Sullivan, 980 F. Supp. 697, 704 (S.D.N.Y. 1997). Here, Mr. Crawford alleges that Hearing Officer Casey denied him a variety of procedural rights in the course of the disciplinary hearing where the charge of weapons possession was adjudicated. (Complaint, attached as Exh. A to Affidavit of Jonathan D. Birenbaum dated Aug. 14, 2000 ("Birenbaum Aff."), at fourth unnumbered page). The defendants have not addressed these due process issues. Accordingly, summary judgment cannot now be entered in their favor on Mr. Crawford's false accusation claim.
C. Excessive Force
Mr. Crawford alleges that after he was frisked and Officer Braun announced that he had discovered a weapon, the defendant corrections officers "rushed" him, knocked him to the ground, punched him in the eye, handcuffed him so tightly as to cause pain, and then pulled his cuffed hands up toward his head. The defendants, on the other hand, contend that they responded with appropriate force when the plaintiff moved from the frisk position, physically resisted, attempted to kick the officers, and then caused a disturbance by shouting to other inmates that the officers were "trying to kill him."
The Eighth Amendment prohibits the infliction of cruel and unusual punishment. This includes the exercise of excessive force against an inmate because, "[w]hen the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well being." Griffin v. Crippen, 193 F.3d 89, 91 (2d Cir. 1999) (quotation and citations omitted). To establish an Eighth Amendment violation, an inmate must satisfy both a subjective and an objective test. Hudson v. McMillian, 503 U.S. 1, 7-8 (1992). The subjective prong requires the inmate to show that the accused prison officials "had a wanton' state of mind when they were engaging in the alleged misconduct." Davidson v. Flynn, 32 F.3d 27, 30 (2d Cir. 1994) (citation omitted). To fulfill the objective component, the inmate must demonstrate that the force applied was "`sufficiently serious.'" Farmer v. Brennan, 511 U.S. 825, 834 (1994) (quoting Wilson v. Seiter, 501 U.S. 295, 398 (1991)).
In this case, disputed issues of fact preclude summary judgment on the subjective prong. Whether conduct is wanton depends upon "whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm." Hudson, 503 U.S. at 7. Certainly, the defendants present a strong case for finding that they applied only the force necessary to restrain Mr. Crawford when he became aggressive and posed a threat to prison security. On the other hand, Mr. Crawford has testified that while he may have removed one hand from the wall where he was being frisked, he made no aggressive move but only stated that the knife had been planted on him. In response, the officers allegedly said, "Oh, wrong answer," slamming him against the wall and then to the ground. (Deposition of Thomas Crawford dated May 25, 2000 ("Pl. Dep."), attached as Exh. C to Birenbaum Aff. at 19-20). Sergeant Buday allegedly punched Mr. Crawford once in the eye and attempted to do so again. (Pl. Dep. at 50-51). If the jury were to credit this version of the events, it would be entitled to infer that at least some of the defendants acted maliciously.
Disputed issues of fact likewise foreclose summary judgment on the objective element of harm. "No . . . showing of extreme injury is required when the claim is that prison officials used excessive force." Sims v. Artuz, 230 F.3d 14, 21 (2d Cir. 2000). Rather, "[w]hen prison officials maliciously and sadistically use force to cause harm, contemporary standards of decency always are violated. . . . This is true whether or not significant injury is evident." Hudson, 503 U.S. at 9; see also Griffin, 193 F.3d at 91.
To be sure, "a de minimis use of force will rarely suffice to state a constitutional claim." Romano v. Howarth, 998 F.2d 101, 105 (2d Cir. 1993). Accordingly, "[n]ot every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates a prisoner's constitutional rights." Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973). But if Mr. Crawford's testimony is credited, the force used against him was more than minimal. For example, he sustained a blow to the face that caused discoloration to his face above the eye and chipped his glasses. (Defendants' 56.1 Statement ¶¶ 12, 14; Pl. Dep. at 61). While Sergeant Buday states that he may have inadvertently struck the plaintiff's glasses while trying to restrain him, Mr. Crawford maintains that the officer simply punched him. (Defendants' 56.1 Statement ¶ 12; Pl. Dep. at 50). Moreover, the plaintiff asserts that the officers handcuffed him so tightly that his wrists became swollen and reddish and felt as if they were being cut with a knife (Defendants' 56.1 Statement ¶ 8, Pl. Dep. at 51), and then they pushed his arms up as if trying to break them. (Pl. Dep. at 22, 51). While the defendants have presented substantial evidence to rebut the plaintiff's testimony, the court's role on summary judgment is to identify disputed issues of fact, not to resolve them. Accordingly, judgment should not be granted on the excessive force claim.
These factual disputes also preclude summary judgment on the basis of qualified immunity. See Breen v. Garrison, 169 F.3d 152, 153 (2d Cir. 1999); Thomas v. Roach, 165 F.3d 137, 144 (2d Cir. 1999).
D. Medical Care
Next, Mr. Crawford claims that he was denied adequate medical attention when Nurse Forgit did not thoroughly examine his injuries and Mr. Dudhlo, the x-ray technician, did not take films of his wrist. As with an allegation of excessive force, an Eighth Amendment claim based on a failure to provide adequate medical attention has both objective and subjective components. "Objectively, the alleged deprivation must be sufficiently serious, in the sense that a condition of urgency, one that may produce death, degeneration, or extreme pain exists. Subjectively, the charged official must act with a sufficiently culpable state of mind." Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996) (internal quotation marks and citations omitted).
It is a close question whether any of Mr. Crawford's injuries may be considered a serious medical condition for purposes of the constitutional analysis. Although the plaintiff asserts that he was in pain at the time of the incident, the only long-lasting effect that he alleges is residual discomfort in his left wrist that impedes his ability to lift weights; he nevertheless remains able to do 200-300 push-ups each day. (Pl. Dep. at 93). Although such a condition is hardly life- threatening, it may be significant enough to trigger a treatment obligation on the part of prison officials. See Koehl v. Dalsheim, 85 F.3d 86, 87-88 (2d Cir. 1996) (Eighth Amendment claim stated by inmate who was denied glasses used to correct severe double vision and lack of depth perception).
This issue need not be decided, however, because it is clear that neither Ms. Forgit nor Mr. Dudhlo acted with the necessary animus.
The required state of mind, equivalent to criminal recklessness, is that the 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.'"
Counsel also argues that these defendants were never properly served with a copy of the summons and complaint and that the claims against them should therefore be dismissed pursuant to Rule 4(m) of the Federal Rules of Civil Procedure. However, it is more efficient to dispose of these claims on the merits.
Hemmings v. Gorczyk, 134 F.3d 104, 108 (2d Cir. 1998) (quoting Hathaway, 99 F.3d at 553, quoting Farmer, 511 U.S. at 837). Mr. Crawford complains that Nurse Forgit failed to determine whether glass had become imbedded in his eye as a result of his glasses being chipped during the altercation with the corrections officers. However, there is no indication that the plaintiff ever suffered such an injury or that he suggested such a possibility to Ms. Forgit. Thus, there is no evidence whatever that she knew of and disregarded any serious risk to his health.
Similarly, there is no proof that Mr. Dudhlo was deliberately indifferent to the plaintiff's medical needs. Mr. Crawford argues that this defendant should have x-rayed his left wrist immediately after the incident. However, subsequent x-rays did not reveal any fracture or deformity, and had Mr. Crawford been injured during the April 1999 incident, it would have been apparent in those x-rays. (Affidavit of John C. Bendheim dated Sept. 21, 2000 ("Bendheim Aff.") ¶¶ 13-14; Birenbaum Aff., Exh. I at 41). Furthermore, Mr. Dudhlo was not authorized to perform such a procedure except at a physician's direction. (Bendheim Aff. ¶ 5). Thus, the plaintiff has failed to proffer facts from which it could be inferred that this defendant had a culpable state of mind. Summary judgment should therefore be granted dismissing the claims asserted against defendants Lynn Forgit and William Dudhlo.
E. Retaliation
Mr. Crawford asserts that the defendants planted a weapon on him, assaulted him, and then brought false disciplinary charges against him, all in retaliation for his previously having filed complaints against prison officials. Most recently, the plaintiff had filed another complaint in this Court in September 1998, Crawford v. Goord, 99 Civ. 0967 (RMB), in which he alleged that officials at Green Haven had failed to protect him from another inmate, had tampered with his mail, and had retaliated against him. Mr. Crawford now contends that that litigation motivated the defendants in the current action to retaliate further against him.
To establish a claim of retaliation, a plaintiff must demonstrate: (1) that his actions were protected by the Constitution or federal law, and (2) that the defendant took some adverse action against him in response to that protected activity. See Posr v. Court Officer Shield No. 207, 180 F.3d 409, 418 (2d Cir. 1999); Prince v. Edwards, No. 99 Civ. 8650, 2000 WL 633382, at *3 (S.D.N.Y. May 17, 2000). Here, Mr. Crawford has satisfied the first element: his filing of the earlier action is protected activity pursuant to his First Amendment right to petition the government.
His claim fails, however, because he has not proffered sufficient evidence from which a jury could infer that any defendant acted adversely to him because of his prior litigation. A number of factors come into play in determining whether a causal connection exists: (1) the temporal proximity between the protected activity and the defendant's adverse action, (2) the inmate's prior disciplinary record, (3) the outcome of any hearing concerning the allegedly retaliatory charges, and (4) any statements by the defendant concerning his motivation. See Colon v. Coughlin, 58 F.3d 865, 872-73 (2d Cir. 1995); Prince, 2000 WL 633382, at *4.
In this case, at lease three of the four factors favor the defendants. Mr. Crawford's disciplinary record prior to the April 21, 1999 incident was not unblemished. For example, in 1997 he received a disciplinary sentence of keeplock and loss of privileges for infractions including fighting, possession of a weapon, and refusing a direct order. (Birenbaum Aff., Exh. Q). The allegedly retaliatory charges made against the plaintiff as a result of the April 21, 1999 altercation likewise resulted in a finding of guilty after a disciplinary hearing. (Birenbaum Aff., Exh. G at 32-33). There is no suggestion that any of the defendants made statements from which it could be inferred that they had a retaliatory motive. Cf. Colon, 58 F.3d at 873 (retaliation claim survives summary judgment where defendant allegedly admitted retaliatory scheme).
The only factor conceivably pointing to retaliation is the temporal relationship between Mr. Crawford's prior lawsuit and the purportedly retaliatory acts. "[T]emporal proximity between an inmate's lawsuit and disciplinary action may serve as circumstantial evidence of retaliation." Id. at 872 (citations omitted). However, the temporal relationship here is attenuated: the filing of the earlier litigation preceded the April 1999 incident by more than seven months. Moreover, evidence of temporal proximity alone is not enough for a retaliation claim to survive summary judgment. See Williams v. Goord, 111 F. Supp.2d 280, 290 (S.D.N Y 2000). Since, at best, that is all the evidence that Mr. Crawford has presented here, the defendants are entitled to summary judgment on this claim.
F. Supervisor Liability
Finally, Mr. Crawford has asserted claims against defendants Goord, Artuz, Schneider, and Pelc based on their roles as supervisory officials, alleging that they were part of a conspiracy against him and that they had notice of the violations of his rights but failed to act. A supervisory official cannot be held liable under § 1983 simply on the basis of the acts of a subordinate. Ying Jing Gan v. City of New York, 996 F.2d 522, 536 (2d Cir. 1993). To establish a supervisor's liability, a plaintiff must show personal involvement by the supervisor through: (1) direct participation in a violation, (2) failure to remedy a wrong after learning of a violation, (3) creation or perpetuation of a policy or custom under which violations occur; or (4) gross negligence in managing subordinates who caused a violation. See Colon, 58 F.3d at 873; Al-Jundi v. Estate of Rockefeller, 885 F.2d 1060, 1066 (2d Cir. 1989); Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir. 1986); Robbins v. Doe, 994 F. Supp. 214, 218-19 (S.D.N.Y. 1998).
The plaintiff has failed to demonstrate that these standards are met with respect to any of the supervisor defendants. He alleges in conclusory terms that these defendants received "constructive notice" of the purported retaliation and harassment, but he provides no evidence to support this claim. (Birenbaum Aff., Exh. A at 4 Exh. D at item 16). His related assertion that these defendants conspired among themselves and with the other defendants is equally unsupported. See Boddie, 105 F.3d at 862 ("unsupported, speculative, and conclusory" claims of conspiracy must be dismissed). Therefore, summary judgment should be entered dismissing all claims against each of the supervisory defendants.
In his response to the defendants' motion for summary judgment, the plaintiff seems to argue that he was improperly denied discovery that would have provided him with evidence to support his claims against these defendants. In particular, Mr. Crawford asserts that he should have been provided with requested statistical evidence and with a report of the Inspector General of DOCS concerning the April 1999 altercation. However, I sustained the defendants' objection to the plaintiff's demand for statistical evidence because it was vague and overbroad, and Mr. Crawford explicitly deferred his request for the Inspector General's report and then never renewed it. (Order dated April 19, 2000; Letter of Jonathan D. Birenbaum dated March 13, 2000).
Conclusion
For the reasons set forth above, I recommend that the defendants' motion for summary judgment be granted to the extent of dismissing all claims against defendants Goord, Artuz, Schneider, Pelc, Forgit, and Dudhlo as well as all claims of retaliation. I further recommend that the motion be denied with respect to claims of the use of excessive force and the filing of false charges by the remaining defendants. 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 from this date 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 Richard M. Berman, Room 201, 40 Foley Square, New York, New York 10007 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.