Summary
granting summary judgment to certain defendants who were not present for the alleged constitutional violation
Summary of this case from Grubbs v. SerrellOpinion
99-CV-6393 CJS
September 4, 2003
Damecha Harris, Green Haven Correctional Facility, Drawer B, Stormville, New York, For the Plaintiff
Kelly A. McCarthy, Esq., Rochester, New York, For the Defendants
DECISION and ORDER
INTRODUCTION
This is a prisoner civil rights suit before the Court on a motion (# 39) for summary judgment or partial summary judgment filed by defendants Deputy Superintendent of Security Skinner ("Skinner"), Lieutenant Shannon ("Shannon"), Lieutenant Cooks ("Cooks") and Sergeant P. S. Smith ("Smith"), and plaintiff pro se's cross-motion (#48) for summary judgment. The moving defendants contend that they are entitled to summaryjudgment or partial summary judgment on all claims against Skinner and Shannon on the basis of their lack of personal involvement, and on the claim for delay in calling for medical attention against Skinner, Cooks and Smith on the basis that there was no such delay. Plaintiff contends that he is entitled to summary judgment as to his excessive force claim to all defendants because there are no material facts in dispute. For the reasons stated below, defendants' motion (# 39) for summaryjudgment is granted and plaintiff's cross-motion (# 48) for summaryjudgment is denied.
BACKGROUND
Defendants and plaintiff agree on the following facts. On October 30, 1998, plaintiff was temporarily incarcerated at Wende Correctional Facility ("Wende"). Plaintiff was being housed at Wende in connection with a criminal court appearance on pending charges relating to his assault of a Southport corrections officer. Plaintiff claims that prior to leaving for court on October 30th, Corrections Officer Buckez ("Buckez"), Corrections Officer Bach ("Bach"), and other unidentified corrections officers threatened to hurt him in retaliation for plaintiff's assault on the Southport corrections officer. Plaintiff claims that Smith was present for and overheard the threats. Plaintiff concedes, however, that he never told anyone at Wende about the threats. Harris Dep. at 20-21.
The assault, for which plaintiff was subsequently convicted and for which he received a sentence of fifteen years to life, occurred while he was being confined at the Southport Correctional Facility.
Then upon returning from court that day, plaintiff claims he was assaulted by several corrections officers, including Buckez, Bach and Smith. The use offeree reports prepared following the incident indicate that the alleged assaultoccurred at approximately 10:50 a.m. See Compl. Ex's B, G, and H. Plaintiff claims that Cooks came upon the incident in progress and failed to stop it, and thereby failed to prevent injury to plaintiff. Additionally, plaintiff claims that Skinner, Shannon, Cooks and Smith should have called a nurse to attend to him sooner than they did. Harris Dep. at 69-71. On this point, the Special Housing Unit ("SHU") log book lists plaintiff as entering SHU at 10:47 a.m. and Nurse Spinsbury examining him in SHU at 10:58 a.m. See Compl. Ex. I and J.
As a result of the incident, plaintiff contends that he sustained injuries consisting of a split lip and a scrape above his eye, both of which healed in a "couple of days." Harris Dep. at 72-73. Plaintiff also claims he had some swelling on his back and side for which he was provided Ben Gay ointment. Harris Dep. at 53-54.
On September 9, 1999, plaintiff, proceeding pro se, commenced this action pursuant to 42 U.S.C. § 1983. In his complaint, plaintiff alleges that he was assaulted "maliciously and sadistically" by Buckez and Bach while Skinner, Cooks and Smith "just stood by and watched." Compl. 1J24. Further, plaintiff alleges that Shannon, "after learning about this incident did not investigate the beating plaintiff received . . . nor was anyone reprimanded." Compl. ¶ 21. Moreover, plaintiff claims "that he was denied adequate and sustaining medical care and treatment for his injuries." Compl. ¶ 24. Plaintiff is suing the defendants in both their individual and official capacities. Compl. ¶ 9.
Although plaintiff's opposition to defendants' motion for summary judgment conclusively alleges the existence of a conspiracy to cover up facts regarding the incident, the Court, in liberally construing plaintiff's complaint, does not find that he alleges a conspiracy cause of action.
On February 19, 2002, the subject motion for summary judgment or partial summary judgment was filed by defendants Skinner, Cooks, Shannon and Smith. Defendants filed with it a statement of facts as required by Local Rule of Civil Procedure 56.1. Plaintiff filed his cross-motion on March 28, 2003 and filed with it a "statement of facts as to which there is [sic] genuine issues for summary judgment in plaintiff [sic] favor." In that statement, plaintiff sets forth both undisputed and disputed facts and concludes by stating, "[t]hese factual disputes can be resolved without a non-jury trial or trial. . . ." Pl.'s Statement of Facts as to Which There is Genuine Issues for Summ. J. in Pl.'s Favor ¶ 9.
On October 25, 2001, an amended scheduling order set a February 15, 2002 deadline for filing all motions. Neither party filed a dispositive motion by that date. On February 19, 2002, defendant filed a motion for summary judgment. Because the Court finds that defendants have not acted in bad faith and plaintiff will not be prejudiced by the filing of their summary judgment motion, the Court will sua sponte extend the time to file a dispositive motion from February 15, 2002 to February 19, 2002. Therefore, defendants' motion filed on that date will be considered by the Court.
On March 28, 2002, plaintiff filed a motion for summary judgment. Because the Court finds that plaintiff has not acted in bad faith and defendants will not be prejudiced by the filing of his summary judgment motion, the Court will sua sponte extend the time to file a dispositive motion from February 15, 2002 to March 28, 2002. Therefore, plaintiff's motion filed on that date will be considered by the Court.
STANDARDS OF LAW
A. Summary Judgment Standard
The standard for granting summary judgment is well established. Summary judgment may not be granted unless "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 a judgment as a matter of law." FED. R. CIV. P. 56(c). A party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists. See Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970). "[T]he movant must make a prima facie showing that the standard for obtaining summary judgment has been satisfied." 11 MOORE'S FEDERAL PRACTICE, § 56.11[1][a] (Matthew Bender 3d ed.). Where the non-moving party will bear the burden of proof at trial, the party moving for summary judgment may meet its burden by showing the evidentiary materials of record, if reduced to admissible evidence, would be insufficient to carry the non-movant's burden of proof at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
Once that burden has been met, the burden then shifts to the non-moving party to demonstrate that, as to a material fact, a genuine issue exists. FED. R. CIV. P. 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). "A fact is `material' only if the fact has some affect on the outcome of the suit." Catanzaro v. Weiden, 140 F.3d 91, 93 (2d Cir. 1998) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. at 248). A dispute regarding a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. In determining whether a genuine issue exists as to a material fact, the court must view underlying facts contained in affidavits, attached exhibits, and depositions in the light most favorable to the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). Moreover, the court must draw all reasonable inferences and resolve all ambiguities in favor of the non-moving party. Leon v. Murphy, 988 F.2d 303, 308 (2d Cir. 1993). However, a summary judgment motion will not be defeated on the basis of conjecture or surmise or merely upon a "`metaphysical doubt' concerning the facts." Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991) (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). Rather, evidentiary proof in admissible form is required. FED. R. CIV. P. 56(e).
B. Personal Involvement Standard
Section 1983 provides a cause of action against any person who, acting under the color of state law, infringes on a person's rights secured by the Constitution or the laws of the United States. 42 U.S.C. § 1983 (2003). However, it is well settled in this Circuit that a plaintiff must show that the defendant was personally involved in the constitutional depravation in order to prove a claim under 42 U.S.C. § 1983. Johnson v. Newburgh Enlarged School Dist, 239 F.3d 246, 254 (2d Cir. 2001); Gaston v. Coughlin, 249 F.3d 156, 164 (2d. Cir. 2001). In this regard, a prison official may be found to be personally involved by evidence of his: (1) direct participation in the alleged constitutional violation; (2) failure to remedy the violation after learning of it; (3) creation or maintenance of a policy or custom under which unconstitutional acts occurred; (4) gross negligence in management of subordinates who committed the unconstitutional acts; or (5) deliberate indifference to the rights of others by failing to act on information indicating that unconstitutional acts were occurring. Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995).
In order to establish personal involvement based upon deliberate indifference, plaintiff must allege: (1) "that federal or state law imposed a duty upon the supervisor to intervene in some way; (2) that the supervisor has actual or constructive notice of unconstitutional practices carried out by his supervisees — which notice triggered his duty to intervene — yet deliberately failed to take such action . . .; and (3) that [this failure to act] was the proximate cause of the [plaintiffs] injury." Murphy v. New York Racing Ass'n, Inc., 76 F. Supp.2d 489, 500 (S.D.N.Y. 1999) (internal citations and quotations omitted); see also Meriwether v. Coughlin, 879 F.2d 1037, 1048 (2d Cir. 1989).
C. Medical Care and Treatment Standard
In order to prove an Eighth Amendment violation, plaintiff must show that defendants were deliberately indifferent to his serious medical needs. Estelle v. Gamble, 429 U.S. 97, 104 (1976). In Estelle, the Supreme Court concluded that "deliberate indifference to serious medical needs of prisoners constitutes the `unnecessary and wanton infliction of pain' proscribed by the Eighth Amendment." Id. at 104, quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976). However, the Court was careful to note that "[m]edical malpractice does not become a constitutional violation merely because the victim is a prisoner." Estelle, 429 U.S. at 106. The Court must look to the needs of the individual patient, not to the standard of care for an average plaintiff. Liscio v. Warren, 901 F.2d 274 (2d Cir. 1990). Moreover, allegations of negligence in diagnosis or treatment alone, without facts supporting a charge of deliberate indifference, cannot support a claim under 42 U.S.C. § 1983. Estelle v. Gamble, 429 U.S. 97, 106 n. 14 (1976); see also Hathaway v. Coughlin, 37 F.3d 63, 68 (2d Cir. 1994) ("mere medical malpractice does not constitute an Eighth Amendment violation").
DISCUSSION
A. Application for Summary Judgment by Defendants Skinner, Shannon, Smith Cook1. Personal Involvement
Based upon the applicable principles of law, the Court finds that plaintiff cannot maintain excessive force claims against Skinner and Shannon, since he has failed to present any evidentiary proof in admissible form that they were personally involved in the alleged constitutional violation. It is well settled that a plaintiff may not rely merely upon the doctrine of respondeat superior to establish supervisory liability under 42 U.S.C. § 1983. Monell v. New York City Department of Social Services, 436 U.S. 658, 691-95 (1978). "The bare fact that [the defendants] occup[y] a high position in the New York prison hierarchy is insufficient to sustain [plaintiff's] claim." Colon v. Coughlin, 58 F.3d 865, 874 (2d Cir. 1995).
a. Personal Involvement of Shannon
Plaintiff does not dispute that Shannon was not present for the alleged assault. Harris Dep., at 68. Further, plaintiff has not come forward with any evidence that Shannon directly participated in the alleged assault; created a policy or custom under which any inappropriate conduct occurred; was grossly negligent in the management of subordinates who caused the wrong; or that Shannon, after learning of a violation, failed to remedy the violation when he had the authority to do so.
Moreover, plaintiff has not come forward with any evidence that Shannon was deliberately indifferent to his rights by failing to act on information indicating that unconstitutional acts were occurring. Here, plaintiff has not alleged that Shannon had actual or constructive notice of occuring unconstitutional practices. Rather, plaintiff alleges that Shannon did not investigate the alleged assault, and that he did not reprimand anyone for his actions. However, plaintiff has no constitutional right to an investigation of an individual who has committed an assault on him unless it is shown that the omission or inadequacy of the investigation itself resulted in the deprivation of a constitutional right. See Malloy v. City of New York, No. 93-CV-8919 (SS), 1996 WL 648927 at *2 (S.D.N.Y. Nov. 7, 1996) (holding that warden's alleged failure to investigate assault by correctional officer did not give rise to constitutional violation where plaintiff failed to show that warden could have anticipated or had other direct involvement in the assault). In this case, plaintiff has not shown that the omission of the investigation itself resulted in the deprivation of a constitutional right. Therefore, based on the foregoing, defendants' motion for summary judgment, with respect to Shannon's lack of personal involvement, is granted.
b. Personal Involvement of Skinner
Plaintiff also concedes, contrary to his complaint, that Skinner was not present for, and did not directly participate in, the alleged constitutional violation. See, e.g., Harris Dep. at 98-100; See Pl.'s Aff. in Opp. to Defs.' Mot. for Summ. J. U 5. Further, there is no evidentiary proof that Skinner created a policy or custom under which any inappropriate conduct occurred or that Skinner was grossly negligent in the management of subordinates who caused the wrong. Moreover, based upon the principles previously set forth with regard to personal involvement based upon deliberate indifference, plaintiff has not presented any evidentiary proof that Skinner had actual or constructive notice of unconstitutional practices occurring. As to Skinner, plaintiff does claim that, regardless of the fact rather [sic] or not he came a "couple seconds" or
"minutes" after the incident, the point is that defendant Skinner had `personal knowledge' and did witness how bloody plaintiff's face, mouth and lip was and cover up this incident and fail to remedy the wrong or report the actions of his subordinates Bach, Buckez [sic] and Smith after learning about the incident.
Pl.'s Aff. in Opp. to Defs.' Mot. for Summ. J. ¶ 5.
However, such a claim does not provide a sufficient basis to establish that Skinner was personally involved. The alleged excessive use offerce claim does not evidence an ongoing constitutional violation that the Court can remedy, nor can Skinner's personal involvement be established by showing he witnessed injuries after the fact. Therefore, based on the foregoing, defendants' motion for summary judgment, with respect to Skinner's lack of personal involvement, is granted.
2. Medical Care and Treatment
Plaintiff alleges "that he was denied adequate and sustaining medical care and treatment for his injuries." Pl.'s Compl. ¶ 24. However, by plaintiff's own account, his injuries consisted of a split lip and a scrape near his eye, both of which healed in a "couple of days," along with some swelling on his side and back. Harris Dep. at 53-54, 72-73. Moreover, plaintiff concedes that he was evaluated and treated by a nurse eleven minutes after the incident occurred. Pl.'s Mem. of Law in Opp'n to Def.s' Mot. for Summ. J. ¶ 27. Nevertheless, plaintiff argues that "even minutes can cause someone's life to be put in jeopardize [sic] when plaintiff was beaten and bleeding from open wounds." Id. ¶ 28.
Even viewing the facts in the light most favorable to plaintiff, nothing indicates that Skinner, Cooks, or Smith operated with deliberate indifference, or in a manner that "constitute[d] the `unnecessary and wanton infliction of pain.'" Estelle, 429 U.S. at 104. Quite to the contrary, plaintiff was evaluated and treated for his injuries almost immediately. Furthermore, despite plaintiff's contention that he should have received stitches for his lip, it is well settled that a mere difference of opinion between an inmate and a medical provider about what medical care is necessary does not give rise to a constitutional claim. Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir. 1998). Therefore, with regard to Skinner, Cooks, and Smith, their motion for summary judgment, pertaining to plaintiff's medical care, is granted on the merits.
C. Application for Summary Judgment by Plaintiff
Plaintiff claims in conclusory fashion that the "undisputed facts of this case show that [he] was subjected to the unlawful use of illegal force" and therefore, "there is no factual dispute preventing the entry of summary judgment for [him] on this issue." Pl.'s Aff. in Supp. of Mot. for Summ. J. ¶ 6. In response to plaintiffs motion, defendants directly involved in the incident submitted sworn declarations which contradict plaintiff's portrayal of the incident. Because there are clearly differing views regarding the actual events of October 30, 1998, there exist genuine issues of material fact. For this reason, plaintiff's cross-motion for summary judgment must be denied.
CONCLUSION
In view of the above, defendants' motion (# 39) for summary judgment is granted and plaintiff's cross-motion (# 48) for summary judgment is denied. In addition, plaintiff's claims against defendants in their official capacities are dismissed. Green v. Mansour, 474 U.S. 64, 72-73 (1985). Therefore, only plaintiff's excessive force claim may go forward and only as to defendants Cooks, Smith, Buckez and Bach.