Opinion
Civil Action No. 9:08-CV-1104 (LEK/DEP)
08-22-2011
GARY GILLARD, Plaintiff, v. CRAIG ROSATI, GREGORY BEECHER, MICHAEL PAIGE, JEREMY BURCH, KELLY DOYLE, RICHARD LAPAN, ARTHUR HARRIS, ANDREW FRAZIER, MICHAEL HOY, KEITH HENDRY, PETER BESSON, FISHER NESMITH, KEN VERIO, MICHELE CZERWINSKI, HOWARD SILVERBERG, WILLIAM REDMOND, and ROBERTA LABRUM, Defendants.
FOR THE PLAINTIFF: GARY GILLARD, Pro Se 01-A-1613 OF COUNSEL ROGER W. KINSEY, ESQ. Assistant Attorney General FOR THE DEFENDANTS: HON. ERIC T. SCHNEIDERMAN
APPEARANCES
FOR THE PLAINTIFF:
GARY GILLARD, Pro Se01-A-1613
OF COUNSEL
ROGER W. KINSEY, ESQ.
Assistant Attorney General
FOR THE DEFENDANTS:
HON. ERIC T. SCHNEIDERMAN
DAVID E. PEEBLES
U.S. MAGISTRATE JUDGE
REPORT AND RECOMMENDATION
Plaintiff Gary Gillard, 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.Although his initial complaint in this matter was significantly more far-reaching his claims have been winnowed substantially, and now stem principally from two incidents involving the alleged use of excessive force by prison personnel and the failure of prison medical employees to provide him with adequate treatment for his resulting injuries. As relief, plaintiff seeks compensatory and punitive damages ranging into the hundreds of millions of dollars against the seventeen named defendants.
Since 2000, plaintiff has proven himself to be a prodigious litigator in the federal courts. During that period Gillard has filed nine civil rights suits in this district, four of which were commenced in 2009, and has initiated eight other similar civil rights actions in the Eastern District of New York and two in the Western District of New York. See http://www.pacer.gov/. Based upon the court's review of the dockets in the previously filed lawsuits, it appears that at least two were dismissed for failure to state cause of action. See Gillard v. Mahoney, et al., Civil Action No. 2:00-CV-5420 (E.D.N.Y.) Dkt. No. 3; Gillard v. Kirwin, Civil Action No. 2:01-CV-2125 (E.D.N.Y.) Dkt. No. 109. Since the commencement of this lawsuit, yet another complaint filed by Gillard has been dismissed for failure to state a claim, see Gillard v. Gaffney, No. 2:00-CV-5945 (E.D.N.Y.) Dkt. No. 131, thereby potentially subjecting him to the three strikes provision of 28 U.S.C. § 1915(g).
Currently pending before the court is a motion brought by defendants requesting summary judgment dismissing plaintiff's remaining claims. In their motion, defendants argue that no reasonable factfinder could conclude that they violated plaintiff's Eighth Amendment rights, and further that they are shielded from suit in their official capacities under the Eleventh Amendment, and as individuals by qualified immunity. For the reasons set forth below, I recommend that defendants' motion be granted in part, but otherwise denied. I. BACKGROUND
In light of the procedural posture of the case, the following recitation is derived from the record now before the court with all inferences drawn and ambiguities resolved in favor of the plaintiff. Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003).
Plaintiff is a prison inmate entrusted to the care and custody of the New York State Department of Corrections and Community Supervision ("DOCCS") (formerly known as the New York State Department of Correctional Services, or the "DOCS"). See generally Am. Compl. (Dkt. No. 33). Plaintiff is currently confined within the Attica Correctional Facility, see Dkt. No. 74, although at the times relevant to his claims he was incarcerated within the Great Meadow Correctional Facility ("Great Meadow"), located in Comstock, New York. See generally Am. Compl. (Dkt. No. 33). At the heart of plaintiff's claims are incidents occurring at Great Meadow on or about September 17, 2007 and January 31, 2008.
A. September 17, 2007 Incident
On September 17, 2007, Gregory Beecher, a corrections officer at Great Meadow, ordered the plaintiff to proceed to an interview room to meet with Corrections Lieutenant Peter Besson in order to discuss a pending grievance filed by Gillard. Beecher Decl. (Dkt. No. 82-3) ¶ 5; Besson Decl. (Dkt. No. 82-6) ¶ 18; Gillard Decl. (Dkt. No. 87) ¶ 4. Plaintiff alleges that he was accompanied to the interview room by defendant Beecher, who became hostile and threatening during the escort, giving Craig Rosati, another corrections officer, "the signal to move into action against" Gillard. Gillard Decl. (Dkt. No. 87) ¶ 4. According to plaintiff he was then kicked, punched, and kneed by defendant Rosati, while defendant Beecher stood idly by. Id.
In their motion papers defendants offer starkly contrary accounts of the events of September 17, 2007. While defendant Rosati admits to conducting a pat and frisk of the plaintiff, and escorting the plaintiff to the interview, he denies having assaulting him. Rosati Decl. (Dkt. No. 89) ¶¶ 5-9. In contrast to plaintiff's claims that defendant Beecher stood by during the assault, that defendant claims his role was limited to providing Gillard with a pass and that he had no involvement in escorting plaintiff as alleged. Beecher Decl. (Dkt. No. 82-3) ¶ 6. Beecher also denies assaulting or threatening the plaintiff in any way. Id. at ¶ 7.
The declaration of Craig Rosati as well as another given by defendant Roberta Labrum are cited in defendants' Local Rule 7.1(a)(3) Statement, see Dkt. No. 82-1, filed in support of this pending motion, but were not included in their motion submission. When advised of that fact by the court, defendants' counsel submitted those declarations, both of which are dated from July 2010. Dkt. Nos. 88, 89. While plaintiff objects to the court's consideration of these documents, see Dkt. No. 90, I recommend that they be considered, in the court's discretion, given that it appears likely the failure to submit them with the original motion was a mere oversight. Cooper Industries v. Agway, Inc., 987 F. Supp. 92, 101 (N.D.N.Y. 1997) (recognizing court's discretion under N.D.N.Y.L.R. 7.1(b)(3) to accept or reject untimely affidavits).
Plaintiff's escort to the interview room by defendant Rosati was necessitated in light of his refusal to obey the order to go speak with defendant Besson. Besson Decl. (Dkt. No. 82-6) ¶ 19.
When questioned regarding the grievance which was to be the subject of the interview, plaintiff became uncooperative and, according to Besson, refused to answer any of his questions. Besson Decl. (Dkt. No. 82-6) ¶ 20. Plaintiff stated to Besson that he had been beaten on the way to the interview room, although Besson did not observe any obvious injuries to the plaintiff. Id. at ¶¶ 21-22. According to Besson, he attempted to have plaintiff examined by medical personnel in light of his allegations of being beaten, but plaintiff refused the opportunity. Id. at ¶ 24. At the conclusion of the session, plaintiff was personally escorted by Corrections Lieutenant Besson back to his cell. Id. at ¶ 23.
Plaintiff also spoke with Corrections Lieutenant Keith Hendry concerning the alleged incident. Am. Compl. (Dkt. No. 33) ¶ 100. Plaintiff claims that defendant Hendry ignored his requests for medical attention and disregarded his complaints. Id.
Although defendants' Local Rule 7.1.(a)(3) Statement makes reference to a declaration given by Lieutenant Hendry, that declaration is not included among the motion papers now before the court.
Plaintiff was examined by defendant Michael Hoy, a corrections sergeant, and Roberta Labrum, a nurse, on September 20, 2007. Hoy Decl. (Dkt. No. 82-11) ¶¶ 5-6; Labrum (Dkt. No. 88) ¶¶ 4-5. According to those individuals, no visible bruising was observed during that examination. See id. Plaintiff refutes those findings, claiming them to have been false and misleading, designed to cover up the beating and his resulting injuries, including the inability to stand, walk, or lift anything due to pain in his arm, ankle, back, and neck. Gillard Decl. (Dkt. No. 87) ¶ 6.
B. January 31, 2008 Incident
On January 31, 2008, while in his cell, plaintiff was instructed by Corrections Officers Jeremy Burch and Kelly Doyle to dress and participate in an interview by a corrections sergeant. Am. Compl. (Dkt. No. 33) ¶ 84. Upon entering the office of Corrections Sergeant Andrew Frazier plaintiff was asked about his grievances and whether Gillard smelled alcohol on Frazier's breath. Id. at ¶¶ 85-86. During the session, defendant Jeremy Burch slammed plaintiff's face into a cabinet, and defendant Andrew Frazier threatened to break both of plaintiff's legs and arms if he continued to submit grievances. Id. at ¶¶ 86-87. Plaintiff was then struck in the face by defendant Frazier and on the right side of the head and in his jaw area by Jeremy Burch, while defendant Kelly Doyle punched him in the back; all three persisted, striking the plaintiff in the face, neck, back, ribs, and lower back areas. Id. at ¶ 87. Plaintiff was then returned to his cell where he requested medical attention from Corrections Officer Richard Lapan, who refused to provide emergency treatment despite the fact that plaintiff was throwing up blood and had bruises on his face. Id. at ¶ 90.
On the following day, defendant Fisher Nesmith, a physician's assistant at Great Meadow, went to plaintiff's cell in response to Gillard's complaint of injuries, examined him, and arranged for him to be moved to the medical area. Nesmith Decl. (Dkt. No. 82-10) ¶ 4; Kinsey Aff. (Dkt.
No. 82-13) Exh. K, p. 27 (hereinafter cited as "Medical Records p. __"). At that time, plaintiff was treated for a possible minor contusion to the right orbital area, under his right eye. Nesmith Decl. (Dkt. No. 82-10) ¶ 5. Thereafter, plaintiff was examined by Corrections Sergeant Hoy and Nurse Labrum, also on February 1, 2008. Hoy Decl. (Dkt. No. 82-11) ¶ 8; Labrum Decl. (Dkt. No. 88) ¶ 7. X-rays taken on that day were negative. Hoy Decl. (Dkt. No. 82-11) ¶ 9; Labrum Decl. (Dkt. No. 88) ¶ 8.
C. Medical Treatment
On September 20, 2007, three days after the first claimed assault, plaintiff was examined by Corrections Officer Michael Hoy and Nurse Roberta Labrum. Medical Records pp. 7- 8. Although plaintiff complained of back pain, neither Hoy nor Labrum observed any injuries. See id. The next day, plaintiff was prescribed a lumbar corset. Id.; see also Silverberg Decl. (Dkt. No. 82-8) ¶ 9.
Defendant Howard Silverberg, a physician at Great Meadow, examined the plaintiff on September 25, 2007. Id. at ¶ 10. On that date Dr. Silverberg prescribed a back brace and the medication Flexeril for pain. Id.; see also Medical Records pp. 7-8.
On October 5, 2007, plaintiff requested x-rays and a neck brace, complaining of back pain. Medical Records p. 5. He also stated that he had just seen a doctor, started medication, and underwent magnetic resonance imaging ("MRI") testing, but nonetheless desired to see a doctor again. Id. Medical staff instructed plaintiff to take the medication "as ordered" and "give them a chance to work." Id.
Approximately two months later, on December 18, 2007, Dr. Silverberg prescribed an ankle brace and lumbar corset for the plaintiff. Medical Records pp. 25-26. Defendant Silverberg also recommended that plaintiff see an orthopedic surgeon. Id. at 23. That suggestion, however, was rejected by other prison medical personnel, who recommended that plaintiff first undergo physical therapy. Id.
Plaintiff contends that after the purported January 31, 2008 assault, he advised defendant Lapan that he needed to see medical staff because he was vomiting blood. Am. Compl. (Dkt. No. 33) ¶ 90; Gillard Decl. (Dkt. No. 87) ¶ 8. Plaintiff was seen by Physician's Assistant Fisher Nesmith the next day. Medical Records p. 27; Nesmith Decl. (Dkt. No. 82-10) ¶ 4. During that visit Gillard complained of "vague pain" because a "sgt hit him last PM," and defendant Nesmith treated plaintiff for a possible minor bruise under his right eye. Medical Records p. 27; Nesmith Decl. (Dkt. No. 82-10) ¶¶ 4-5. Plaintiff also received an x-ray. Medical Records pp. 22, 27. Plaintiff was informed on February 15, 2008 of the x-ray results, which were "essentially normal." Silverberg Decl. (Dkt. No. 82-8) ¶ 21; Medical Records pp. 22, 27. Based upon those results, medical staff recommended that plaintiff use an air cast or undergo physical therapy for his ankle pain. Silverberg Decl. (Dkt. No. 82-8) ¶ 21; Medical Records p. 11. An ankle cast was subsequently prescribed for the plaintiff on March 31, 2008 by Dr. Silverberg. Silverberg Decl. (Dkt. No. 82-8) ¶ 22.
II. PROCEDURAL HISTORY
Plaintiff commenced this action on October 10, 2008. Dkt. No. 1. Since its inception, the matter has had a extensive procedural history which need not be recounted in full for purposes of placing the pending motion in context.
The operative pleading of the plaintiff now before the court is a revised amended complaint filed on November 16, 2009. See Dkt. No. 33. In that document, which is essentially excerpted from a prolix amended complaint earlier filed with the court, plaintiff names seventeen of the seventy-three defendants originally sued, both in their official and individual capacities, and asserts claims of excessive force, failure to intervene, deliberate medical indifference, and verbal harassment, all in violation of the Eighth Amendment. Am. Compl. (Dkt. No. 33).
Following service, joinder of issue, and the completion of pretrial discovery, defendants moved on September 7, 2010 for summary judgment dismissing plaintiff's claims against them. Dkt. No. 82. In their motion defendants argue that 1) the record fails to support plaintiff's Eighth Amendment claims; 2) defendants Harris, Paige, Czerwinski, Redmond, Nesmith, Hoy, Labrum, Besson, Hendry, and Lapan were not personally involved in any alleged civil rights deprivation; 3) defendants are entitled to Eleventh Amendment immunity from suit in their official capacities; and 4) as individuals they are entitled to qualified immunity. Id. Defendants' motion, which plaintiff has opposed, see Dkt. No. 87, is now ripe for determination and has 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).
III. DISCUSSION
A. Summary Judgment Standard
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 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S. Ct. 2505, 2509-10 (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 Jefferys 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 240, 106 S. Ct. at 2510. Though pro se plaintiffs are entitled to special solicitude 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 (1986); But see Vital v. Interfaith Med. Ctr., 168 F.3d 615, 620-21 (2d Cir. 1999) (noting obligation of court to consider whether pro se plaintiff understood nature of summary judgment process).
When deciding a summary judgment motion, a court must resolve any ambiguities, and draw all inferences from the facts, in a light most favorable to the nonmoving party. Jeffreys, 426 F.3d at 553; Wright v. Coughlin, 132 F.3d 133, 137-38 (2d Cir. 1998). The entry of summary judgment is warranted only in the event of a finding that no reasonable trier of fact could rule in favor of the nonmoving party. See Building Trades Employers' Educ. Ass'n v. McGowan, 311 F.3d 501, 507-08 (2d Cir. 2002) (citation omitted); see also Anderson, 477 U.S. at 250, 106 S. Ct. at 2511 (summary judgment is appropriate only when "there can be but one reasonable conclusion as to the verdict").
B. Plaintiff's Failure to File a Proper Local Rule 7.1.(a)(3) Statement
The court's rules provide that a party opposing a motion for summary judgment
shall file a response to the [moving party's] Statement of Material Facts. The non-movant's response shall mirror the movant's Statement ofN.D.N.Y.L.R 7.1(a)(3). This rule, which is typical of similar rules from many courts, serves to assist the court in identifying material issues in a case and determining whether they are genuinely disputed. See Monahan v. New York City Dep't of Corrs., 214 F.3d 275, 292 (2d Cir. 2000).
Material Facts by admitting and/or denying each of the movant's assertions in matching numbered paragraphs. Each denial shall set forth a specific citation to the record where the factual issue arises. The non-movant's response may also set forth any additional material facts that the non-movant contends are in dispute in separately numbered paragraphs.
The consequences of a failure to adhere to this meaningful rule are potentially significant. By its terms, Local Rule 7.1(a)(3) provides that "[t]he Court shall deem admitted any facts set forth in the Statement of Material Facts that the opposing party does not specifically controvert." N.D.N.Y.L.R. 7.1(a)(3) (emphasis in original). Courts in this district have routinely enforced Rule 7.1(a)(3) and its predecessor, Rule 7.1(f), by deeming facts admitted upon an opposing party's failure to respond. See, e.g., Elgamil v. Syracuse Univ., No. 99-CV-611, 2000 U.S. Dist. LEXIS, 2000 WL 1264122, at *1 (Aug. 22, 200) (McCurn, S.J.) (listing cases); see also Monahan, 214 F.3d at 292 (discussing district courts' discretion to adopt local rules like 7.1(a)(3)). As a counterbalance to this often-fatal deficiency, a court has broad discretion to overlook a party's failure to comply with its local rules. Travelers Indemnity Co. of Ill. v. Hunter Fan Co., No. 99 CIV 4863, 2002 U.S. Dist. LEXIS 1238, 2002 WL 109567, at *7 (S.D.N.Y. Jan. 28, 2002) (citing Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 73 (2d Cir. 2001)).
Copies of all unreported decisions cited in this document have been appended for the convenience of the pro se plaintiff.
While in opposing defendants' motion plaintiff has filed a document entitled "Plaintiff's Statement of Disputed Factual Issues," plaintiff's submission fails to satisfy the requirements of Local Rule 7.1(a)(3). Although plaintiff's statement includes seven separately numbered paragraphs, those paragraphs do not directly respond or correspond to the forty-four separately numbered paragraphs contained in Defendants' Local Rule 7.1(a)(3) Statement. See Plaintiff's Opposition (Dkt. No. 87) pp. 5-6 (unnumbered). Additionally, plaintiff has neglected to include any citations to the record in his Local Rule 7.1(a)(3) Statement, as also required by the rule.
The pages of plaintiff's opposition are not numbered. The court will therefore refer to the page numbers as filed and reflected on the court's docket.
Despite these deficiencies, plaintiff has submitted a twelve- paragraph affidavit detailing the incidents of alleged unconstitutional conduct. See Gillard Decl. (Dkt. No. 87) pp. 1-4. The last line of that affidavit is a declaration, signed by plaintiff, that "under the penalty of perjury . . . the foregoing is true and correct." Id. at p. 4. Further, plaintiff's response is accompanied by affidavits from three witnesses to the incident allegedly occurring on January 31, 2008. Id. at pp. 12-14. Accordingly, in deference to his pro se status, and given that he has actively opposed defendants' motion and that it is fairly clear from his submissions which facts are disputed, though without minimizing the importance of Local Rule 7.1(a)(3), I recommend against deeming plaintiff to have admitted the facts set forth in Defendants' 7.1 Local Rule 7.1(a)(3) Statement.
Plaintiff's submission substantially complies with 28 U.S.C. § 1746, which provides that
[w]herever, under any law of the United States or under any rule, regulation, order, or requirement made pursuant to law, any matter is required or permitted to be supported, evidenced, established, or proved by the sworn declaration, verification, certificate, statement, oath, or affidavit, in writing of the person making the same (other than a deposition, or an oath of office, or an oath required to be taken before a specified official other than a notary public), such matter may, with like force and effect, be supported, evidenced, established, or proved by the unsworn declaration, certificate, verification, or statement, in writing of such person which is subscribed by him, as true under penalty of perjury, and dated, in substantially the following form: . . . "I declare (or certify, verify, or state) under penalty of perjury the foregoing is true and correct. Executed on (date). (Signature)".28 U.S.C. § 1746(2).
This recommended disposition is particularly appropriate in this case since it does not appear that defendants' motion was accompanied by the required notice to plaintiff of the consequences of his failure to properly respond in opposition to the motion. See N.D.N.Y.L.R. 56.2.
C. Eleventh Amendment Immunity
Plaintiff's complaint, as amended, makes clear that he is asserting claims against the defendants both individually and in their official capacities. In their motion, defendants seek dismissal of Gillard's claims against them in their official capacities, asserting their entitlement to Eleventh Amendment immunity. Defendants' Memorandum (Dkt. No. 82-2) p. 18.
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 (1978). This absolute immunity which states enjoy under the Eleventh Amendment extends to both state agencies and state officials sued in their official capacities when the essence of the claim involved is one against a 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 (1982)). To the extent that a state official is sued for damages in his or her 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 (1985); Hafer v. Melo, 502 U.S. 21, 25, 112 S. Ct. 358, 361 (1991).
By contrast, the Eleventh Amendment does not serve as an impediment to suits seeking to impose individual or personal liability on state officials under section 1983. See Hafer, 502 U.S. at 30-31, 112 S. Ct. at 364-65.
Since plaintiff's damage claims against the named defendants in their official capacities are in reality claims against the State of New York, thus exemplifying those against which the Eleventh Amendment protects, they are subject to dismissal. Daisernia v. State of New York, 582 F. Supp. 792, 798-99 (N.D.N.Y. 1984) (McCurn, J.). I therefore recommend that this portion of defendants' motion be granted, and that plaintiff's damage claims against the defendants in their capacities as state officials be dismissed.
Among the relief sought in plaintiff's complaint, as amended, is the issuance of an injunction. Claims against the defendants in their official capacities for injunctive relief are not subject to dismissal under the Eleventh Amendment. Seminole Tribe of Florida v. Florida, 517 U.S. 44, 58, 116 S. Ct. 1114, 1124 (1996). Nonetheless, it is likely that any request for injunctive relief in this case is destined to be rejected as moot in light of the fact that Gillard is no longer incarcerated at Great Meadow, where the events giving rise to his claims occurred. It is well settled in this circuit that transfer from a prison facility moots an action for injunctive relief against the transferring facility. Prins v. Coughlin, 76 F.3d 504, 506 (2nd Cir. 1996) (citing Young v. Coughlin, 866 F.2d 567, 568 n. (2d Cir.), cert. denied, 492 U.S. 909, 109 S. Ct. 3224 (1989), and Beyah v. Coughlin, 789 F.2d 986, 988 (2d Cir.1986)); Candelaria v. Greifinger, No. 96-CV-0017, 1998 WL 312375, at *2 (N.D.N.Y. June 8, 1998) (Pooler, J. and Scanlon, M.J.).
D. Personal Involvement
In their motion certain of the individuals sued by the plaintiff, including defendants Harris, Paige, Nesmith, Besson, Hendry, Lapan, Hoy, Labrum, Czerwinski, and Redmond, urge dismissal of plaintiff's claims against them based upon the lack of any showing of their involvement in the constitutional violations alleged in his complaint.
Personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under section 1983. Gatson v. Coughlin, 249 F.3d 156, 164 (2d Cir. 2001); Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (citing Moffit 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 (1978)). As the Supreme Court has noted, a defendant may only be held accountable for his or her actions under section 1983. Ashcroft v. Iqbal, __ U.S. __, 129 S. Ct. 1927, 1952 (2009). 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).
1. Defendant Czerwinski
Defendant Michelle Czerwinksi, a nurse administrator at Great Meadow, argues that she was not personally involved in any alleged unconstitutional conduct and that she is named as a defendant solely due to her place in the prison medical staff chain of command. Plaintiff counters that defendant Czerwinski is liable for having ignored letters regarding his alleged medical mistreatment. See, e.g., Am. Compl. (Dkt. No. 33) ¶¶ 106, 109.
Plaintiff's motion response fails to address defendants' lack of personal involvement arguments. However, affording the plaintiff the special solicitude that he deserves as a pro se litigant, when assessing the issue of personal involvement I have examined the allegations contained in his amended complaint, which is a verified pleading, see Patterson v. County of Oneida, 375 F.3d 206, 219 (2d Cir. 2004) ("[A] verified pleading . . . has the effect of an affidavit and may be relied upon to oppose summary judgment.") (citation omitted), for sufficiency.
As a supervisor, defendant Czerwinski cannot be held liable for damages under section 1983 solely by virtue of her position; 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. In order to establish her liability, plaintiff must prove that she 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. 1937 (2009); see also Richardson, 347 F.3d at 435; Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995); Wright, 21 F.3d at 501.
The record is devoid of any evidence of defendant Czerwinski's direct involvement in the events giving rise to plaintiff's claim. Her role appears to be limited to the receipt of two letters from the plaintiff which she failed to answer. It is well-established that without more, "mere receipt of letters from an inmate by a [supervisory official] regarding a medical claim is insufficient to constitute personal liability." Gonzales v. Wright, No. 9:06-CV-1424 (JMH), 2010 U.S. Dist. LEXIS 15953, at *28, 2010 WL 681323, at *10 (N.D.N.Y. Feb. 22, 2010) (Hood, J.) (citations omitted); see also Booker v. Doe, No. 9:06-CV-73 (GLS), 2008 U.S. Dist. LEXIS 76413, at *22, 2008 WL 4527601, at *7 (N.D.N.Y. Sept. 30, 2008) (Sharpe, J.) ("It is now well-settled that the failure of a supervisory official to investigate a letter of protest written by an inmate is not sufficient to show personal involvement.").
In light of the lack of evidence of defendant Czerwinski's personal involvement in the constitutional violations alleged, I recommend that this defendant's motion for summary judgment be granted and plaintiff's claims against her be dismissed.
2. Defendant Redmond
Defendant William Redmond, another nurse administrator, also argues that he also was not personally involved in any alleged unconstitutional conduct and that he is named as a defendant due solely to his supervisory position. Like Czerwinski, plaintiff claims that defendant Redmond ignored letters regarding his alleged medical mistreatment. See Am. Compl. (Dkt. No. 33) ¶115.
For purposes of the personal involvement analysis defendant Redmond's circumstances are factually distinguishable from those of defendant Czwerinski. In addition to the letters sent by the plaintiff, the record contains two memoranda authored by defendant Redmond, dated November 13, 2007 and March 10, 2008, in which he explained and defended plaintiff's treatment. See Kinsey Decl. (Dkt. No. 82-13) Exh. J. It has been held that personal liability may lie where a "supervisor's 'involvement went beyond merely the receipt of complaint letters,' to 'responding, explaining the treatment and defending the institution.'" Woods v. Goord, No. 01 Civ. 3255 (SAS), 2002 U.S. Dist LEXIS 7157, at *27-31, 2002 WL 731691, at *7-9 (S.D.N.Y. Apr. 23, 2002) (Schendlin, J.) (internal citations omitted); see also Rashid v. Hussain, No. 95- Civ. 676, 1997 U.S. Dist. LEXIS 16132, at *9-10, 1997 WL 642549, at *3 (N.D.N.Y. Oct. 15, 1997) (Pooler, J.).
Drawing all inferences and resolving ambiguities in plaintiff's favor, I am unable to conclude that no reasonable factfinder could hold defendant Redmond accountable for the constitutional deprivations allegedly suffered by the plaintiff. Accordingly, I recommend that his motion seeking summary judgment based upon lack of personal involvement be denied.
3. Defendants Hoy and Labrum
Although defendants Michael Hoy and Roberta Labrum argue that they were not personally involved in any unconstitutional conduct, they admit to having conducted a medical examination of plaintiff on September 20, 2007, three days after the first purported assault, and another on February 1, 2008, one day after the second alleged assault. Defendants' Local Rule 7.1(a)(3) Statement (Dkt. No. 82-1) ¶¶ 12, 26. Based upon these circumstances a reasonable factfinder could conclude that they were personally involved in defendants' indifference to plaintiff's medical condition. As such, I recommend that their summary judgment on the ground of lack of personal involvement be denied.
4. Defendant Nesmith Defendant Fisher Nesmith, who, as was previously noted, serves as a physician's assistant at Great Meadow, admits to having examined the plaintiff on February 1, 2008, one day after the second claimed assault. Nesmith Decl. (Dkt. No. 82-10) ¶ 4. On that occasion, defendant Nesmith treated plaintiff for a possible minor bruise under plaintiff's right eye. Id. at ¶ 5. Based upon his role, a jury could find that defendant Nesmith was personally involved in plaintiff's medical care and defendants' deliberate indifference toward his medical needs. Accordingly, I recommend that defendant Nesmith's motion for summary judgment on the ground of lack of personal involvement be denied.
5. Defendants Harris and Paige
Defendants Arthur Harris and Michael Paige, two DOCCS corrections officers stationed at Great Meadow, argue that they were not personally involved in any constitutional deprivation alleged because the only accusation against them is that they were in charge of opening plaintiff's cell door so that he could be taken to the meeting that led to the alleged assault on January 31, 2008. In support of his claim against those defendants, Gillard argues that they purposefully opened his cell door so that defendants Burch, Doyle, and Frazier could assault him. Am. Compl. (Dkt. No. 33) ¶ 91; Gillard Decl. (Dkt. No. 87) ¶ 8. Defendants Harris and Paige flatly dispute this claim. Harris Decl. (Dkt. No. 82-4) ¶ 11; Paige Decl. (Dkt. No. 82-9) ¶ 8. Neither of those defendants was present in or near plaintiff's cell at the time of his alleged assault; instead, both were present in a control bubble, responsible for controlling cell doors and access to and from cell blocks, among other things. Harris Decl. (Dkt. No. 82-4) ¶¶ 5 and 6; Paige Decl. (Dkt. No. 82-9) ¶¶ 5 and 6. Both deny that the purpose of opening plaintiff's cell door was to facilitate an assault. Harris Decl. (Dkt. No. 82-4) ¶ 11; Paige Decl. (Dkt. No. 82-9) ¶ 8.
Plaintiff's allegations that when defendants Harris and Paige performed their duty to open plaintiff's cell door they knew an assault would follow is wholly speculative. No evidence has been offered from which a reasonable jury could find their complicity in the alleged use of excessive force against the plaintiff. Plaintiff's unsupported conclusion regarding those defendants' motives is insufficient to raise an issue of fact precluding the grant of summary judgment. Franconero v. Universal Music Corp., No. 02 Civ.1963(BSJ), 2011 WL 566794, at * 5 (S.D.N.Y. Feb. 11, 2011) (citation omitted). I therefore recommend that plaintiff's claims against those defendants be dismissed for lack of personal involvement.
6. Defendants Besson and Hendry
Defendants Besson and Hendry, a corrections lieutenant and a corrections sergeant, respectively, argue that they are named as defendants due solely to their positions in the prison chain of command. They contend that the record now before the court fails to establish a tangible connection between their actions and plaintiff's constitutional claims sufficient to establish their personal involvement, and therefore seek summary judgment with regard to plaintiff's claims against them.
Defendant Besson has submitted a declaration in which he admits to having interviewed the plaintiff on September 17, 2007 and again on February 12, 2008. Besson Decl. (Dkt. No. 82-6) ¶¶ 5, 18. Plaintiff fails to dispute defendant Besson's claim that Gillard could not offer any information or witnesses regarding the January 31, 2008 incident. See id. at ¶¶ 6-7. Since the January 31, 2008 incident represented an alleged constitutional violation which was not ongoing, but instead of finite duration, and hence defendant Besson was not in a position on February 12, 2008 to prevent or end the deprivation, there is no basis for finding requisite personal involvement on his part in connection with the January 31, 2008 incident to support a finding of liability.
Defendant Besson also had involvement with regard to the earlier matter by attempting to interview Gillard on September 17, 2007 regarding a complaint previously filed. Besson Decl. (Dkt. No. 82-6) ¶ 18. After failing to cooperate, plaintiff reported that he had been beaten on the way to the interview room. Id. at ¶¶ 20-21. Defendant Besson, however, observed no injuries, nor was he given any other reason to believe plaintiff's accusations, and plaintiff refused the opportunity to be examined by medical personnel regarding the matter. Id. at ¶¶ 22-25. Based upon these limited circumstances, I recommend a finding that plaintiff's has failed to establish a basis for defendant Besson's liability.
Defendant Hendry falls into a different category. Although his affidavit is referenced in defendant's Local Rule 7.1(a)(3) Statement, it is not currently before the court. Measured against this void is plaintiff's assertion that defendant Hendry refused to provide medical assistance and disregarded his complaint after he was informed of the September 17, 2007 incident. See Am. Compl. (Dkt. No. 33) ¶ 100. I therefore recommend denial of defendant Hendry's motion for summary judgment based upon the lack of personal involvement in light of his potential participation in the alleged deliberate indifference to plaintiff's serious medical needs.
7. Defendant Lapan
Defendant Richard Lapan is a corrections officer at Great Meadow. Lapan Decl. (Dkt. No. 82-7) ¶ 1. Plaintiff claims that defendant Lapan denied his request for medical assistance when defendant Lapan returned plaintiff to his cell following the January 31, 2008 incident. Gillard Decl. (Dkt. No. 87) ¶ 8. Defendant Lapan admits working at Great Meadow on January 31, 2008 and in his declaration does not deny that plaintiff requested medical attention without success. See generally Latham Decl. (Dkt. No. 82-7). At a bare minimum, the issue of whether, as contended by the plaintiff, Gillard requested but was denied medical attention for his injuries from defendant Latham constitutes an issue of fact concerning his involvement which cannot be resolved on motion for summary judgment. Accordingly, I recommend denial of defendant Latham's motion for summary judgment based upon lack of personal involvement.
E. Excessive Force
At the heart of plaintiff's amended complaint are claims of excessive force based upon the September 2007 and January 2008 incidents. These claims are 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, 290-91 (1976); see also Whitley v. Albers, 475 U.S. 312, 319, 106 S. Ct. 1076, 1085 (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 (1994) (citing Rhodes v. Chapman, 452 U.S. 337, 349, 101 S. Ct. 2392, 2400 (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, 998-99 (1992) (applying Whitley to all excessive force claims); Whitley, 475 U.S. at 320-21, 106 S. Ct. at 1085 (quoting Johnsvon v. Glick, 481 F.2d 1028, 1033 (2d Cir.), cert. denied sub nom., John v. Johnson, 414 U.S. 1033, 94 S. Ct. 462 (1972)).
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. Graddy, 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. __, 130 S. Ct. 1175, 1179 (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,
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. Otherwise, the Eighth Amendment would permit any physical punishment, no matter how diabolic or inhuman, inflicting less than some arbitrary quantity of injury.Hudson, 503 U.S. at 9, 112 S. Ct. at 1000 (citations omitted); see also Romaine v. Rewson, 140 F. Supp. 2d 204, 211 (N.D.N.Y. 2001) (Kahn, J.) Velasquez v. O'Keefe, 899 F. Supp. 972, 973 (N.D.N.Y. 1995) (McAvoy, C.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. at 1000 (citations omitted).
With its focus on the harm done, the objective prong of the inquiry is contextual and relies for a point of reference 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 if 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 "every malevolent touch by a prison guard gives rise to a federal cause of action." Griffin, 193 F. 3d at 91 (citing Romano v. Howarth, 998 F.3d 101, 105 (2d Cir. 1993)); see also Johnson, 481 F.2d at 1033 ("Not every push or shove, even if it later may seen 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, however, summary judgment dismissing an excessive force claim is inappropriate. Wright, 554 F.3d at 269 (citing Scott v. Coughlin, 344 F.3d 282, 291 (2d Cir. 2003) (reversing summary judgment 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).
The basis for defendants' assertion that they are entitled to judgment as a matter of law dismissing plaintiff's excessive force claims is unclear, particularly in view of the fact-laden nature of the inquiry ordinarily surrounding the objective and subjective prongs of the Eighth Amendment test and the conflicting accounts given regarding the relevant events. Looking first at the September 17, 2007 incident, plaintiff contends the he was kicked, punched, and kneed by defendant Rosati. See, e.g. Gillard Decl. (Dkt. No. 87) ¶ 4; see also Am. Compl. (Dkt. No. 33) ¶¶ 97-98. By contrast, defendant Rosati denies assaulting the plaintiff, stating instead that his conduct on that date was limited to a pat and frisk of the plaintiff. Rosati Decl. (Dkt. No. 89) ¶ 6, 9. These conflicting accounts squarely raise an issue of credibility, presenting a question of fact for resolution by a jury and inappropriate for determination by the court on a motion for summary judgment. See Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir. 1996) (citing, inter alia, Anderson, 477 U.S. at 255, 106 S. Ct. at 2513).
Plaintiff's claims surrounding the January 31, 2008 incident implicate defendants Burch, Doyle, and Frazier. Gillard Decl. (Dkt. No. 87) ¶ 7 and Am. Compl. (Dkt. No. 33) ¶¶ 84-88. Those three defendants are accused of having applied excessive force on that date in an effort to coerce the plaintiff to recant an earlier complaint regarding defendant Paige. See id.
For his part defendant Frazier maintains that he was not working at Great Meadow on January 31, 2008 and therefore was not present on the day of the alleged assault. Frazier Decl. (Dkt. No. 82-12) ¶ 7; see also Kinsey Aff. (Dkt. No. 82-13) Exhs. C and F. The exhibits submitted, however, are somewhat equivocal concerning whether defendant Frazier was actually working on the day in question. The Security Supervisor Chart for January 31, 2008, offered in support Frazier's contention, lists an "a. Frazier" accompanied with the handwritten text "645" and an illegible handwritten notation. Kinsey Aff. (Dkt. No. 82-13) Exh. C. At the end of the day, a jury undoubtedly will be called upon to resolve the issue of whether defendant Frazier was working and involved in the alleged assault on January 31, 2008. Resolution of that issue cannot be accomplished by the court at this procedural juncture; instead, the conflicting accounts raise an issue credibility precluding the grant of summary judgment. In re Dana Corp., 574 F.3d 129, 152 (2d Cir. 2009) (quoting Fed. R .Civ. P. 56(e) Advisory Committee Note (1963)).
Defendant Burch and Doyle take a different tact in defense of plaintiff's claims. They do not appear to dispute his claim that an altercation occurred on the date in question, instead arguing that x-rays of the plaintiff taken one day after of the purported assault were negative for injuries and, accordingly, plaintiff's allegations " 'fail to shock the conscience. . .' ." Defendants' Memorandum (Dkt. No. 82-2) at pp. 9-10. Assuming this to be true, the inquiry nonetheless is not ended, since even if plaintiff suffered only minimal injuries, a rational factfinder could determine that defendants Burch and Doyle acted maliciously and sadistically by assaulting plaintiff to coerce him to recant his complaint. See Scott v. Coughlin, 344 F.3d 282, 291 (2d Cir. 2003) (summary judgment inappropriate in an excessive force claim even though "medical records after the . . . incident . . . indicate[] only a slight injury.").
Defendants cite to Kerman v. City of New York, 261 F.3d 229 (2d Cir. 2001), for that proposition that "plaintiff will not prevail in a claim for excessive force when 'contrasting accounts . . . present factual issues as to the degree of force actually employed and its reasonableness.'" Defendants' Memorandum (Dkt. No. 82-2) pp. 6-7, 10. Contrasting accounts of an incident such as that at bar clearly present an issue of material fact making summary judgment inappropriate. See Rule, 85 F.3d at 1011. Moreover, Kerman does not support defendants' proposition. In Kerman, the Second Circuit held that under Rule 50 of the Federal Rules of Civil Procedure judgment as a matter of law in a jury trial was inappropriate in an excessive force claim where "contrasting accounts of both [plaintiff's] and [defendant's] conduct . . . present factual issues as to the degree of force actually employed and its reasonableness." Kerman, 261 F.3d at 239.
Having determined that genuine issues of material fact exist surrounding plaintiff's excessive force claims, I recommend that the portion of their motion seeking dismissal of those claims as a matter of law be denied.
F. Failure to Intervene
In addition to asserting that various defendants beat him, plaintiff alleges that other defendants, while not direct participants, observed the assaults and failed to act. 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-6257Fe, 2004 U.S. Dist. LEXIS 28225, 2004 WL 2202645, at *4 (W.D.N.Y. Sept. 30, 2004); see also Curley v. Vill. 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).
In order to establish liability on the part of a defendant under this theory, a plaintiff must prove the use of excessive force by someone other than the individual and that the defendant under consideration 1) possessed actual knowledge of the use by another corrections officer 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. See Curley, 268 F.3d at 72; see also Espada v. Schneider, 522 F. Supp. 2d 544, 555 (S.D.N.Y. 2007). Mere inattention or inadvertence, it should be noted, does not rise to the level of deliberate indifference sufficient to support liability for failure to intervene. See, e.g., Schultz v. Amick, 955 F. Supp. 1087, 1096 (N.D. Iowa 1997) (noting that "liability in a § 1983 'excessive force' action cannot be founded on mere negligence") (citing, inter alia, Daniels v. Williams, 474 U.S. 327, 335-36, 106 S. Ct. 662, 667 (1986)).
In their motion defendants do not directly address plaintiff's failure to intervene claims. The sufficiency of those claims, however, is indirectly implicated, including in the portion of the motion addressing the question of personal involvement.
1. Defendant Beecher
Defendant Beecher contends that the only allegations against him are for verbal harassment, claims that are not cognizable under § 1983. Factually, defendant Beecher maintains that his role in the relevant events was limited to instructing the plaintiff to go to the interview room on September 17, 2007 to see defendant Besson. Beecher Decl. (Dkt. No. 82-3) ¶ 5. Defendant Beecher states that it was his "job to give the inmate a pass and not escort[] him personally." Id. at ¶ 6. Plaintiff, by contrast, accuses defendant Beecher of becoming hostile and of giving defendant Rosati the "signal" to begin the assault, and of encouraging defendant Rosati during the assault. Gillard Decl. (Dkt. No. 87) ¶ 4. Plaintiff claims that defendant Beecher stood by and did nothing as the purported assault occurred. Id. at ¶¶ 4, 10. In his declaration, defendant Beecher does not respond to this accusation.
This appears to conflict with defendants' Local Rule 7.1(a)(3) Statement which states "Defendant Beecher escorted Plaintiff to the interview room." See Defendants' Local Rule 7.1(a)(3) Statement (Dkt. No. 82-1) ¶ 7.
These conflicting accounts present an issue of fact as to whether defendant Beecher failed to intervene during the purported assault by defendant Rosati on September 17, 2007. As such, I recommend denying the portion of defendants' motion requesting dismissal of plaintiff's claims against defendant Beecher.
2. Defendant Frazier
Plaintiff accuses defendant Frazier of standing by on January 31, 2008 as he witnessed plaintiff being beaten by defendant Rosati, a lower ranked officer. Defendant Frazier states that he did not work at Great Meadow on that date. See Frazier Decl. (Dkt. No. 82-12) ¶ 4. As was stated earlier, these conflicting accounts present an issue of fact as to whether defendant Frazier was present at Great Meadow on January 31, 2008, and also whether he failed to intervene in the alleged assault. Accordingly, I recommend denial of defendant Frazier's motion for summary judgment on the issue of his failure to intervene.
G. Medical Indifference
Plaintiff alleges that defendants Lapan, Hoy, Hendry, Besson, Nesmith, Verio, Labrum, Czerwinski, Silverberg, and Redmond were deliberately indifferent to his serious medical needs, in particular by denying his request for treatment of injuries sustained during the two alleged assaults. In their motion, defendants claim plaintiff has failed to establish both the existence of a serious medical need as well as a refusal by those defendants to provide the required treatment.
Claims that prison officials have intentionally disregarded an inmate's medical needs fall under the umbrella of protection from the imposition of cruel and unusual punishment afforded by the Eighth Amendment. Estelle, 429 U.S. at 102, 104, 97 S. Ct. at 290-91. To satisfy their obligations under the Eighth Amendment, prison officials must ensure that inmates receive adequate food, shelter, and medical care, and must take reasonable measures to guarantee the safety of inmates." Farmer, 511 U.S. 832, 114 S. Ct. at 1976 (quoting Hudson v. Palmer, 468 U.S. 517, 526-27, 104 S. Ct. 3194, 3200 (1984)) (internal quotations omitted).
Like plaintiff's excessive force claim, his claim of medical indifference must satisfy both objective and subjective requirements. Wright, 554 F.3d at 268; Price v. Reilly, 697 F. Supp. 2d 344, 355-58 (E.D.N.Y. 2010) (Bianco, J.). Addressing the objective element, to prevail a plaintiff must demonstrate a violation sufficiently serious by objective terms, "in the sense that 'a condition of urgency, one that may produce death, degeneration, or extreme pain' exists." Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996). With respect to the subjective element, a plaintiff must also demonstrate that the defendant had "the necessary level of culpability, shown by actions of 'wantonness.'" Blyden, 186 F.3d at 262. Claims of medical indifference are subject to analysis utilizing this Eighth Amendment paradigm. See Salahuddin v. Goord, 467 F.3d 263, 279-81 (2d Cir. 2006).
1. Objective Requirement
Analysis of the objective, "sufficiently serious," requirement of an Eighth Amendment medical indifference claim begins with an inquiry into "whether the prisoner was actually deprived of adequate medical care . . .", and centers upon whether prison officials acted reasonably in treating the plaintiff. Salahuddin, 467 F.2d at 279. A second prong of the objective test addresses whether the inadequacy of the medical treatment was sufficiently serious. Id. at 280. If there is a complete failure to provide treatment, the court must look to the seriousness of the inmate's medical condition. Smith v. Carpenter, 316 F.3d 178, 185-86 (2d Cir. 2003). If, on the other hand, the complaint alleges that treatment was provided but was inadequate, the seriousness inquiry is more narrowly confined to that alleged inadequacy, rather than focusing upon the seriousness of the prisoner's medical condition. Salahuddin, 467 F.3d at 280. "For example, if the prisoner is receiving on-going treatment and the offending conduct is an unreasonable delay or interruption in treatment . . . [the focus of] the inquiry is on the challenged delay or interruption, rather than the prisoner's underlying medical condition alone." Id. (quoting Smith, 316 F.3d at 185) (internal quotations omitted). In other words, at the heart of the relevant inquiry is the seriousness of the medical need, and whether from an objective viewpoint the temporary deprivation was sufficiently harmful to establish a constitutional violation. Smith, 316 F.3d at 186. Of course, "when medical treatment is denied for a prolonged period of time, or when a degenerative medical condition is neglected over a sufficient time, the alleged deprivation of care can no longer be characterized as 'delayed treatment,' but may properly be viewed as a 'refusal' to provide medical treatment." Id. at 186 n.10 (quoting Harrison v. Barkley, 219 F.3d 132, 137 (2d Cir. 2000)).
Since medical conditions vary in severity, a decision to leave a condition untreated may or may not raise constitutional concerns, depending on the circumstances. Harrison, 219 F.3d at 136-37 (quoting, inter alia, Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998)). Relevant factors informing this determination include whether the plaintiff suffers from an injury or condition 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 702 (internal quotations and citation omitted).
The record before the court reflects that plaintiff received at least some modicum of medical treatment following both the September 17, 2007 incident and the alleged assault on January 31, 2008. On September 20, 2007, plaintiff was examined at the Great Meadow infirmary by defendant Hoy, a corrections sergeant, and defendant Labrum, a nurse. Hoy Decl. (Dkt. No. 82-11) ¶ 5; Labrum Decl. (Dkt. No. 88) ¶ 4; Medical Records p. 8. Neither of those examining personnel observed any visible bruising during that examine. Hoy Decl. (Dkt. No. 82-11) ¶ 6; Labrum Decl. (Dkt. No. 88) ¶ 5. Plaintiff complained during that examination of back pain and a strained neck. Medical Records p. 8. On September 25, 2007, plaintiff was provided medication and a back brace for pain. Hoy Decl. (Dkt. No. 82-11) ¶ 7; Labrum Decl. (Dkt. No. 88) ¶ 6; see also Silverberg Decl. (Dkt. No. 82-8) ¶¶ 8-10. Standing alone, these allegations fail to establish the existence of a serious medical need of constitutional proportions. The record now before the court lacks evidence of extreme pain or severe degeneration; instead, the record discloses only injuries of a transitory nature which are insufficient to establish the existence of a serious medical need passing constitutional muster. See Johnson v. Brown, No. 9:09-cv-0002 (GTS/DEP), 2010 U.S. Dist. LEXIS 142207, 2010 WL 6243352, at *14-15 (N.D.N.Y. Sept. 3, 2010) (Peebles, M.J.) (finding that a "busted lip, dime-sized bruise, and general complaints of pain" were not a serious medical condition), report and recommendation adopted, 2011 WL 1097864 (Mar. 22, 2011) (Suddaby, J.); see also Ford v. Phillips, No. 05 Civ. 6646 (NRB), 2007 U.S. Dist. LEXIS 25226, 2007 WL 946703, at *12 (S.D.N.Y. Mar. 27, 2007) (concluding that minor bruising, slight bleeding, and abrasions are not injuries that may produce death, degeneration or extreme pain and that no reasonable juror could find otherwise).
In addition to these allegations of a modest nature, plaintiff contends that he complained to defendant Lapan of vomiting blood following the January 31, 2008 incident, but that Lapan nonetheless denied his request for medical assistance. Gillard Decl. (Dkt. No. 87) ¶ 8; see also Am. Compl. (Dkt. No. 33) ¶ 90 ("Lapan . . . refused to get the Plaintiff emergency medical attention as the Plaintiff was throwing up blood as well as face bruised" [sic].). To be sure, vomiting blood can be an indication of a serious medical need. See Hale v. Rao, No. 9:08-cv-612, 2009 WL 3698420, at *5 (N.D.N.Y. Nov. 3, 2009) (Hurd, J.) (citing Morgan v. Maass, No. 94-35834, 1995 U.S. App. LEXIS 38206, 1995 WL 759203, at *2 (9th Cir. Dec. 26, 1995)). Because the summary judgment standard requires the court to resolve all ambiguities and draw all reasonable inferences against the moving party, I therefore find that there are factual issues concerning whether plaintiff's claims satisfy the objective prong of the deliberate indifference standard.
2. Subjective Element
The second, subjective requirement for establishing an Eighth Amendment medical indifference claim mandates a showing of a sufficiently culpable state of mind, or deliberate indifference, on the part of one or more of the defendants. Salahuddin, 467 F.3d at 280 (citing Wilson v. Seiter, 501 U.S. 294, 300, 111 S. Ct. 2321, 2325 (1991)). 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; see also Leach v. Dufrain, 103 F.3d 542, 546 (N.D.N.Y. 2000) (Kahn, J.) (citing Farmer). "Deliberate indifference is a mental state equivalent to subjective recklessness, as the term is used in criminal law." Salahuddin, 467 F.3d at 280 (citing Farmer, 511 U.S. at 839-40, 114 S. Ct. at 1979-80).
Mere negligence on the part of a physician or other prison medical official in treating or failing to treat a prisoner's medical condition, on the other hand, does not implicate the Eighth Amendment and is not properly the subject of a section 1983 action. Estelle, 429 U.S. at 105-06, 97 S. Ct. at 292; Chance, 143 F.3d at 703. "Medical malpractice does not become a constitutional violation merely because the victim is a prisoner." Estelle, 429 U.S. at 106, 97 S. Ct. at 292. Thus, for example, a physician who "delay[s] ... treatment based on a bad diagnosis or erroneous calculus of risks and costs" does not exhibit the mental state necessary for deliberate indifference. Harrison, 219 F.3d at 139. If prison officials consciously delay or otherwise fail to treat an inmate's serious medical condition "as punishment or for other invalid reasons," however, such conduct is actionable as deliberate indifference. Harrison, 219 F.3d at 138; Kearsey v. Williams, No. 99 Civ 8646, 2005 U.S. Dist. LEXIS 19017, 2005 WL 2125874, at *5 (S.D.N.Y. Sep. 1, 2005) (Batts, J.).
While plaintiff's deliberate indifference claims potentially meet the objective prong, they fail to satisfy the subjective element of the controlling test. The record before the court reflects that plaintiff received considerable attention from medical personnel at Great Meadow for injuries allegedly suffered during the course of the September 17, 2007 attack. On September 21, 2007, plaintiff received a lumbar corset for his back pain. Silverberg Decl. (Dkt. No. 82-8) ¶ 9; Medical Records pp. 7-9. Four days later, on September 25, 2007, defendant Silverberg prescribed a back brace and pain medication. Silverberg Decl. (Dkt. No. 82-8) ¶ 10; Medical Records p. 7. On October 5, 2007, plaintiff presented requesting x-rays and a brace for back pain. Medical Records p. 5. Plaintiff advised during the course of that appointment that he had just been seen by a doctor and underwent MRI testing, and that he had just begun taking medication for his pain. Medical Records p. 4. Plaintiff was instructed to take the medication as ordered and allow it an opportunity to relieve the pain. See id.
On December 18, 2007, approximately two months later, Dr. Silverberg prescribed an ankle brace and lumbar corset for the plaintiff. Silverberg Decl. (Dkt. No. 82-8) ¶ 14; Medical Records pp. 25-26. Dr. Silverberg also recommended that plaintiff be referred to an orthopedic surgeon for evaluation of his ankle, although that recommendation was rejected in favor of attempting physical therapy first before being referred to an outside specialist. Medical Records p. 11.
Significantly, plaintiff's medical records reveal that he failed to appear for scheduled physical therapy appointments for six consecutive weeks between November 7, 2007 and December 12, 2007. Medical Records pp. 13-18. This refusal of recommended treatment further serves to negate plaintiff's allegations of deliberate indifference. See Gillard v. Rovelli, No. 9:09-cv-0830 (NAM/GHL), 2010 U.S. Dist. LEXIS 124737, 2010 WL 4905240, at *10 (N.D.N.Y. Sept. 29, 2010) (Lowe, Mag. J.) (citing Rivera v. Goord, 253 F. Supp. 2d 735, 756 (S.D.N.Y. 2003)).
In sum, plaintiff received significant medical treatment following the September 17, 2007 incident. Based upon the record before the court, no reasonable factfinder could conclude that any of the individual defendants were subjectively indifferent to plaintiff's serious medical needs stemming from that event.
The record also reveals that plaintiff received substantial medical treatment following the January 31, 2008 incident. Although plaintiff complained to defendant Lapan that he was vomiting blood, plaintiff received medical attention one day later on February 1, 2008 from Physician's Assistant Fisher Nesmith, who treated him on that occasion for possible minor contusion under the right eye. Nesmith Decl. (Dkt. No. ¶ 82-10) ¶¶ 4-5; Medical Records p. 7. X-rays taken on that day were negative. Silverberg Decl. (Dkt. No. 82-8) ¶ 19; Medical Records p. 22-23.
A review of the record shows that between September 20, 2007 and February 15, 2008, plaintiff was seen by medical staff on at least thirteen different occasions. See Medical Records pp. 4-9, 27. Throughout that period, plaintiff received pain medication, x-rays, corsets, and braces. See generally id. Further, plaintiff was prescribed physical therapy, which he refused to attend. Id. at pp. 14-20. Succinctly stated, the record is devoid of any evidence upon which a reasonable factfinder could conclude that defendants acted with deliberate indifference to plaintiff's serious medical needs. Accordingly, I recommend that the portion of defendants' summary judgment motion seeking dismissal of plaintiff's medical indifference claims be granted.
H. Verbal Harassment
In their motion, defendants also contend that plaintiff's claims against defendant Beecher stemming from his alleged use of offensive language toward Gillard does not state a constitutional claim.
As a general matter, verbal harassment, including profanity, without any associated physical injury, does not give rise to a claim cognizable under section 1983. See Purcell v. Coughlin, 790 F.2d 263, 265 (2d Cir. 1986); Gill v. Hoadley, 261 F. Supp. 2d 113, 129 (N.D.N.Y. 2003) (Peebles, M. J.); Shabazz v. Pico, 994 F. Supp. 460, 474 (S.D.N.Y. 1998). Nor do threats amount to a constitutional violation. Malsh v. Austin, 901 F. Supp. 757, 763 (S.D.N.Y. 1995) (Koeltl, J.). Accordingly, plaintiff's claims of verbal abuse, alleging conduct which, if true, is both unprofessional and reprehensible, do not rise to the level of a constitutional violation, and are not cognizable under 42 U.S.C. § 1983. See Moncrieffe v. Witbeck, No. 97-CV-253, 2000 U.S. Dist. LEXIS 9425, 2000 WL 949457, at *3 (N.D.N.Y. June 29, 2000) (Mordue, J.) (allegations that corrections officer laughed at inmate not actionable under section 1983) (citation omitted); Carpio v. Walker, No. Civ.A.95CV1502, 1997 U.S. Dist. LEXIS 1617, 1997 WL 642543, at *6 (N.D.N.Y. Oct. 15, 1997) (Pooler, J. & DiBianco, M.J.) ("verbal harassment alone, unaccompanied by any injury, no matter how inappropriate, unprofessional, or reprehensible it might seem, does not rise to the level of an Eighth Amendment violation"). I therefore recommend granting summary judgment and dismissal of plaintiff's claims against defendant Beecher to the extent that they are predicated upon alleged verbal harassment.
I. Qualified Immunity
In addition to challenging the merits of plaintiff's claims, defendants assert that they are entitled to qualified immunity from suit based upon plaintiff's allegations.
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 (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. 1962 (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. 223, 129 S. Ct. 808, 815 (2000).
In Saucier v. Katz, 533 U.S. 194, 121 S. Ct. 2151 (2001), the Supreme Court "mandated a two-step sequence for resolving government official's qualified immunity claims." Pearson, 555 U.S. at 232, 129 S. Ct. at 816. The first step requires the court to consider whether taken in the light most favorable to the party asserting immunity, the facts alleged show that the conduct at issue violated a constitutional right, Kelsey, 567 F.3d at 61, with "the second step being whether the right is clearly established", Okin v. Cornwall-On-Hudson Police Dept., 577 F.3d 415, 430 n.9 (citing Saucer). Expressly recognizing that the purpose of the qualified immunity doctrine is to ensure that insubstantial claims are resolved prior to discovery, the Supreme Court recently retreated from the prior Saucier two-step mandate, concluding in Pearson that because "[t]he judges of the district courts and courts of appeals are in the best position to determine the order of decisionmaking [that] will best facilitate the fair and efficient disposition of each case", those decision makers "should be permitted to exercise their sound discretion in deciding which of the . . . prongs of the qualified immunity analysis should be addressed first in light of the circumstances of the particular case at hand." 555 U.S. at 236, 129 S. Ct. at 818, 821. In other words, as recently emphasized by the Second Circuit, the courts "are no longer required to make a 'threshold inquiry' as to the violation of the constitutional right in a qualified immunity context, but we are free to do so." Kelsey, 567 F.3d at 61 (citing Pearson,
In making the threshold inquiry, "[i]f no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity." Saucier, 533 U.S. at 201, 121 S. Ct. 2151.
In Okin, the Second Circuit clarified that the "'objectively reasonable' inquiry is part of the 'clearly established' inquiry", also noting that "once a court has found that the law was clearly established at the time of the challenged conduct and for the particular context in which it occurred, it is no defense for the [government] officer who violated the clearly established law to respond that he held an objectively reasonable belief that his conduct was unlawful." Okin, 577 F.3d at 433 n.11 (citation omitted).
Indeed, because qualified immunity is "an immunity from suit rather than a mere defense to liability . . .", Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S. Ct. 2806 (1985), the Court has "repeatedly . . . stressed the importance of resolving immunity questions at the earliest possible stage in the litigation." Pearson, 55 U.S. at 231, 129 S. Ct. 815.
129 S. Ct. at 821) (emphasis in original).
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).
With regard to the excessive force and failure to intervene claims, the constitutional rights implicated were clearly established at the relevant times. As discussed above, I have concluded a reasonable jury could find that defendants violated plaintiff's constitutional rights to be free from cruel and unusual punishment. Accordingly, I recommend that defendants' motion for summary judgment on qualified immunity grounds be denied as to the excessive force claims and failure to intervene.
In view of my recommendation on the merits as to plaintiff's medical indifference and verbal harassment causes of action claims, I do not find it necessary to address defendants' claim that, in the alternative, they are entitled to qualified immunity with regard to those claims.
IV. SUMMARY AND RECOMMENDATION
At the heart of plaintiff's claims in this action are allegations that he was assaulted by corrections officials on two separate occasions and that others stood by and failed to intervene. In view of the conflicting accounts given by the parties regarding those claims, the grant of summary judgment at this juncture would be inappropriate, although certain of the defendants are entitled to dismissal based upon the lack of any showing of their personal involvement in the offending conduct. Plaintiff's additional claim that defendants were deliberately indifferent to his medical needs by failing to treat his resulting injuries lacks support in the record, and his claim based on verbal harassment fails as a matter of law; summary judgment should therefore be granted to defendants on those claims.
Accordingly, it is therefore hereby respectfully,
RECOMMENDED, that defendants' motion for summary judgment dismissing plaintiff's complaint (Dkt. No. 82) be
1. GRANTED to the extent that damages are sought against the defendants in their official capacities;
2. GRANTED as to defendants Harris, Paige, Czerwinski and Besson based upon their lack of personal involvement in the deprivations alleged;
3. GRANTED as to plaintiff's claims of
a) Verbal harassment against defendant Beecher; and
b) Medical indifference as to all defendants; and
4. DENIED in all other respects.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), 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 OBJECT TO THIS REPORT WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(d), 72; Roland v. Racette, 984 F.2d 85 (2d Cir. 1993).
It is further 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.
Dated: August 22, 2011
Syracuse, NY
David E. Peebles
U.S. Magistrate Judge